Fault in Construction Zone Accidents

A construction zone car accident occurs when the “first harmful event” occurs in the area marked off as a construction zone or occurs at the approach to or exit from the construction zone.

What Exactly is Fault?

The person or entity legally at fault is the party determined to be negligent and therefore responsible for the damages resulting from the accident. Following an automobile accident, the party who is at fault typically must cover car repair expenses and pay for medical bills as well as lost earning capacity. This is determined on a case-by-case scenario.

Who is at Fault for a Construction Zone Car Accident?

Every driver is familiar with orange cones and barrels that mark upcoming constructions zones on roadways. No matter how experienced a driver is or how cautiously they drive, construction zones create hazards that put drivers and works at risk. Moreover, construction workers do not need to be present and working at the time of the crash for it to be considered a construction zone crash.

When is a Driver at Fault for a Construction Zone Car Accident?

Construction crews undertake various safety measures to help protect themselves and promote safety for drivers. Even with the addition of bright barrels, flashing lights, and large warning signs, no two construction zones are alike. Notwithstanding these efforts, accidents continue to happen in construction zones. A reduction of lanes may lead to slower traffic or a car accident for those who do not notice the change or do not properly adapt to it. This may cause inattentive drivers to accidentally scrape the side of his vehicle on extraneous objects or other vehicles. Detours could cause drivers to get confused or frustrated, also leading to car accidents.

Colorado has worked to increase safety at construction zones. The public is educated about the dangers of driving without caution around construction work areas. Drivers are instructed to do their part in safeguarding the area. The appropriate level of care is expected of all drivers. It is the responsibility of each driver to reinforce safety provisions. To decrease risks of accidents, drivers should be observant of specific road construction sites, slow down, and take weather conditions into account. Drivers should also provide enough distance between vehicles and avoid distractions.

When is a Construction Company ay Fault for a Construction Zone Car Accident?

Accidents in construction zones occur with greater frequency due to additional hazards the area provides. Construction companies have a duty to make a construction site safe, to not create dangers and wo warn of dangers that may exist. When they breach their duty, they are liability for the damages that are caused by their negligence. By way of example, if a sign or cone is misplaced, drivers may not know how to safely navigate the construction. Debris can pose a threat by littering the roadway and machinery can create even more hazards. Moreover, construction zones become even more dangerous at night when visibility is reduced.

There are essentially two basic rules regarding the liability of a constructor contractor for injuries to a third party: the “completed and accepted rule” and the more modern “foreseeability rule.” Under the “completed and accepted rule,” a contractor generally owes no duty of care to third parties with respect to work it has performed, once that work had been completed. Some jurisdictions recognize exceptions to the rule, holding that contractors may be still be held liable to third parties where the accepted work was left in a condition that was “imminently dangerous,” had hidden or latent defects that the owner could not discover, or was certain to endanger third persons. Under the foreseeability rule, liability can be established by proof the actor, as a person or ordinary intelligence and circumspection, should reasonably have foreseen the negligence act would imperil others.

Colorado has not explicitly adopted either rule in the context of determining the tort duty of a contractor to third parties where the claim is not one of negligent construction, but rather an alleged failure to leave the site in safe condition or provide adequate warnings after the contractor’s work is completed. Nonetheless, Colorado jurisprudence in this area has been hewing a path more closely aligned with the foreseeability rule.

The Colorado Supreme Court has found that when work is reasonably certain to endanger third persons if negligently constructed, a contractor is liable for injuries or deaths. Colorado case law clearly establishes that contractors owe a duty of care to third parties who could foreseeably be injured by negligent construction, installation, repair, or performance on service contractors. In general, private contractors that perform road construction or repair work have a common-law duty to warn motorists of the hazards created by construction or repair activities.

In Karrar v. Barry County Road Commission, 127 Mich. App. 921, 339 N.W.2d 653 (Mich. Ct. App. 1983), a road construction contractor was hired by the Michigan Department of State Highways to repave a road. Id. at 655. The project created a dangerous condition on the shoulders of the road. Id. The contract did not require the contractor to grade the shoulders after completion of the project, which would have corrected the dangerous condition. Id. Rather, under the contract, a county road commission was obligated to eventually replace the shoulders and, in the meantime, warn motorists of the hazard. Id. After the contractor completed the paving project, and before the county commission had replaced the shoulders or installed safety signage, the plaintiff incurred injuries in a car accident as a result of the ungraded and unmarked road shoulders. Id.

The Michigan Court of Appeals ruled (1) where a hazardous condition remains after the completion of a contractor’s work on a road construction or repair project and (2) adequate signs, signals, or devices are not provided to warn of the danger, the contractor may be liable for injury to third parties unless it can show that it was not foreseeable that the hazardous condition would remain or that no safety warnings would be provided by the county. Id. at 657-58. The court held the contractor had no duty to warn motorists of the hazardous situation it had created with its work specifically because it had reasonably relied on the contract with the county and could not have foreseen that the county would fail to perform. Id. In that regard, the court noted the plaintiff had not “pointed to any undisputed facts suggesting that [the contractor] should have anticipated that the road commission would have failed to warn  motorists of the drop-off and failed to correct the condition within the time period preceding the accident.” Id. at 658.

In a more recent Colorado case, Collard v. Vista Paving Corp., 292 P.3d 1232 (Colo. App. 2012), the Colorado Appellate Court concluded, as a matter of first impression, that when a road contractor completes work and leaves a job site in a dangerous condition as a result of its work the contractor has a tort duty to third parties for a reasonable period of time either to eliminate the condition or to warn foreseeable users of the dangers that could foreseeably result in injuries. In Collard, the defendant’s contract with the City did not require them to provide for safety warnings or traffic control after the completion of its work. When Vista left the work site, there were no safety devices in place, and the center line of the road led cars straight into the medians, thereby creating a foreseeably hazardous condition for motorists. The defendant relied on communications from the City that it was authorized to remove safety devices from the scene. The Court found the facts of the cases sufficiently similar to rely on the Michigan court’s reasoning in deciding whether the defendant owed a common law duty to the plaintiff and, if so, what the scope of that duty should be.

The Court concluded that because the defendant road construction work created a dangerous condition, it had a tort duty either to eliminate the condition or to warn foreseeable users of the road hazards that foreseeably could result in injuries. The general scope and application of this rule is captured in Restatement (Second) of Torts § 384 cmt. e (1965):

[T]he work entrusted to the servant or contractor may be such that it necessarily creates a condition which is dangerous unless further steps are taken. In such a case the servant or contractor may be liable if he leaves the job in this dangerous condition, unless he has reason to expect that the necessary steps will be taken. The fact that his employer has retained charge of taking such steps or has entrusted them to another contractor is usually sufficient to warrant the . . . contractor in assuming that they will be taken. On the other hand, the circumstances may be such as to lead him as a reasonable man to realize that this will not be done. In such a case the servant or contractor, after he realizes or should realize that such steps are not likely to be taken, is required to exercise reasonable care to take such steps as are then practicable to remove the danger created by his work.

The duty described here is imposed upon the contractor as the creator of a dangerous condition and not as a possessor of the land. In fact, the contractor is liable to both the possessor of the land and to third parties whom the contractor should reasonably expect to lawfully be upon the land in question. Therefore, Colorado law on this matter is consistent with the overall trend which is that a contractor’s duty to construct, install, repair, or perform with reasonable care persists after completion of a contract. Collard simply extended the existing precedent to include road construct contractors who create hazardous conditions and hold they have a duty to protect motorists from those dangerous conditions that persist after the completion of their work.

What Happens When a Construction Worker is Injured?

Some accidents cause injury to construction workers and not motorists. These claims allow workers to file for workers’ compensation benefits when their employer is insured. The employer providers information and the victim initiates a claim. They may also be entitled to compensation to damages through a personal injury claim with third parties in some cases. These are usually due to a driver causing an accident or injury to workers on the construction zone.