The Road Contractor

Q: One night, I was driving on a highway that was undergoing road construction.  I would drive there a couple times almost everyday.  On the day of my accident, I was traveling at 55 mph, saw a hole in the road and slowed maybe to 45 mph before the accident.  Rather than traveling down a ramp that had been put there, my vehicle became airborne.

The contractor had entered into a contract with the DOT to replace certain bridges.  The project included the removal of a small hill.  After removing the hill, the contractor placed gravel in the area, creating a slope.  He says (1) that the gravel was placed in accordance with the DOT’s standard specifications, (2) that it had been sampled by the DOT, (3) that DOT inspectors approved the gravel slope, (4) signs and barrels were placed in accordance with the specs, and (5) at all times, a DOT engineer-in-charge was on site, approving both the work and the placement of warning signs.

Two volunteer firefighters responded to the accident.  They recall that, earlier in the day, the highway section had been lowered so that the gravel portion was approximately three feet lower than the paved portion.  The ramp connecting the two was approximately 15 feet long.  The posted speed limit was 55 miles per hour, although several cars traveling significantly slower had ‘bottomed out’.  In other words, this was an uneven road with a sharp drop off, perhaps two feet deep.

My friend says I cannot sue the contractor, because its agreement was only with the State, and I am just a ‘third party’.  Is that so?

A: That is far from necessarily so.  There are times when a contractor may indeed be said to have assumed a duty of care – and thus be potentially liable in tort – to a third party.  Factors that can support third-party liability include the following: (1) the contractor, in failing to exercise reasonable care in the performance of his duties, launched a force or instrument of harm; (2) you detrimentally relied on the contractor’s continued performance of his duties; and (3) the contractor had entirely displaced the State’s duty to maintain the premises safely.  Take this case to a lawyer: it is quite possible that you will succeed.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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