Under Construction - March 2013: Colorado Court of Appeals Rules that Contractors May Be Liable for Dangerous Site Conditions Before and After Work is Complete

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In Collard v. Vista Paving Corp., the Colorado Court of Appeals adopted the “foreseeability rule” under which a contractor may have a duty of care for dangerous site conditions even after the contractor’s work was completed and accepted by the owner and the contractor had left the site.  

In Collard, Vista was hired by the city of Grand Junction to construct road medians for a sidewalk improvement project. Vista completed its work and the city’s inspector authorized Vista to leave the site and take its traffic control devices. At the time, the yellow dividing line in the center of Wellington Avenue continued straight into the medians, so the city’s project inspector notified the city traffic control division that the road needed to be re-striped. That did not happen and a motorist crashed into the median.

The motorist suffered injuries and sued both the city and Vista. The claims against the city were dismissed under Colorado’s Governmental Immunity Act. A common law negligence claim against Vista was dismissed under the completed and accepted rule—i.e., the trial court found that Vista owed no duty of care for the road’s safety after the work was completed and the city accepted the work. The motorist appealed.

On appeal, the Court of Appeals reversed the trial court and adopted—for the first time—the foreseeability rule. 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 … 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 did state 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.

In light of the Collard decision, contractors cannot simply rely on an owner’s acceptance of completed work. Rather, to avoid liability, contractors should ensure that the owner will promptly eliminate any dangerous site conditions arising from the work and should document the contractor’s understanding that the owner will do so.