Jonathan M. Allen – January 17, 2013
On November 21, 2012, the Colorado Court of Appeals issued a decision with potentially far-reaching implications. In Collard v. Vista Paving Corp., 2012 COA 208 (2012), the court concluded that contractors have a duty to warn of potential dangers at a construction site resulting from their work after the work has been accepted by the owner of the project and the contractor is allowed to leave the site.
In Collard, Vista was hired by the City of Grand Junction to construct two road medians in connection with a large sidewalk improvement project. The median plans, designs and specifications were developed by the city, and were to be built in the center of the road approximately eight inches high and 11 feet wide. Vista commenced its work on the medians on July 9, 2007 and completed it on July 19, 2007. Upon completion, the city’s project inspector advised Vista that it was authorized to leave the site and allowed Vista to take its traffic control devices. At the time, the yellow dividing line in the center of Wellington Avenue continued straight into the medians. Thus, the city’s project inspector notified the city’s traffic control division that the median work was complete and it could come out to re-stripe the road.
Apparently, however, the city did not promptly re-stripe Wellington Avenue. In the early morning hours on July 24, 2007, two separate accidents occurred involving automobiles crashing into the median, apparently as a result of the yellow road striping leading into the center of the median. Gail Collard suffered various injuries as a result of the accident and brought claims against both the city and Vista.
The city was dismissed from the lawsuit under the Governmental Immunity Act. Against Vista, Collard alleged Colorado Premises Liability Act (PLA) and common law negligence claims. The trial court entered summary judgment in favor of Vista on both claims, concluding: (1) as a matter of law, Vista was not a landowner subject to liability under the PLA; and (2) Vista did not owe a common law duty to maintain the safety of the road after its work was completed and accepted by the city.
On appeal, the Colorado Court of Appeals affirmed the trial court’s decision on the PLA claim, concluding that “the City had fully reassumed responsibility for the conditions and activities at the site” and therefore Vista “no longer qualified as a landowner under the PLA.”
However, with respect to the common law negligence claim, the Court of Appeals reversed the trial court. The Court of Appeals concluded that “because Vista’s road construction work created a dangerous condition,” Vista had a duty “for a reasonable period of time, either to eliminate the condition or to warn foreseeable users (such as Collard) of the road hazards that foreseeably could result in injuries, even if its work had been completed and accepted by the City.” The court did not define what qualifies as a “reasonable period of time.” But, the court did go on to say that the duty would not be extended if the contractor “had a reasonable good-faith belief that another authorized party … would promptly take the necessary measures to eliminate” any dangerous condition.
This decision has potentially far reaching implications for contractors working in all areas of construction, particularly public improvement projects. Governmental bodies are frequently immune from suit, which will put a much larger target on the backs of construction contractors for a plaintiff. It is important for a contractor to understand that even when its work is complete, it may still have responsibility for site conditions absent express contractual provisions to the contrary.