Recently, a California court held a roadway construction contractor, Western Engineering, Inc., liable for injuries to a motorist, Kevin Shipp, who sued for negligence related to an automobile accident.

The accident happened when another motorist, George Smithson, rear-ended Shipp while Shipp was stopped at a traffic control stop managed by Western.  Smithson admitted he hadn’t been paying attention.   He also testified there was nothing in the construction area distracting him or that contributed to the accident.  Nevertheless, Shipp sued Western.

Western asked the court to dismiss Shipp’s lawsuit.   Western argued that because the accident did not occur within the zone of construction, but rather in area before Shipp entered the zone of construction, it owed Shipp no duty of care. The trial court agreed.  But Shipp appealed.

The Court of Appeal reversed the trial court’s decision, explaining that every person owes every other person a general duty of care to reasonably care for the safety of others.  The Court of Appeal said more: “The contractor’s responsibility [is] not limited to dangerous conditions within the scope of [the contractor’s] own work while [the contractor] [is] in control of the job site. [The contractor] [is] under a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions.”

What is the takeaway for contractors in California?  Vigilance and safety concerns cannot be limited to the bright lines of the construction zone.  Awareness and care beyond the border of the construction zone need to be considered.  In the Shipp case, the Court of Appeal noted that the flagger was potentially not placed in the correct spot to avoid traffic backing up, which is what led to Shipp being rear-ended.

This case represents a further step in the trend of California case law toward an expansive conception of the duty of care in the construction context.  This expansion affects design professionals, general contractors, and subcontractors, who must apply a more expansive safety plan and develop broader safety protocols.  A key practice for contractors is to regularly reevaluate safety procedures and protocols and consider project-by-project variables, in order to be best positioned to defend against claims from outside the jobsite.

 

Zachariah H. Rowland is a partner in the law firm of Dunn DeSantis Walt & Kendrick. He advises clients on all types of commercial litigation and construction matters in state and federal courts throughout California. He can be reached at zrowland@ddwklaw.com.

Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.

You can find additional information and resources related to helping business owners and their businesses through COVID-19 challenges on the DDWK website.

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