In a recent case, the Colorado Court
of Appeals found that a contractor
had a duty to a third party to warn it of a dangerous condition, even after the
contractor had completed its work and the owner had accepted the contractor’s
work. Collard v. Vista Paving Corp., -- P.3d --, 2012 WL
5871446 (Colo. App. 2012). While not an
earth shattering or entirely new concept, the decision rendered in Collard
directly accepted the foreseeability rule at the expense of the completed and
accepted rule. Id.
In Collard, the City of
Grand Junction (“the City”) hired Vista Paving Corp. (“Vista”) to construct two
road medians according to the City’s plans and designs. On July 9, 2007, Vista began work on the
medians. According to its contract with
the City, Vista was responsible for traffic control during construction of the medians.
On July 19, 2007, Vista completed its construction of both medians. On that date, the City’s project inspector
conducted his final inspection of Vista’s work.
The City’s inspector then told Vista that its work had been completed
and that Vista was authorized to leave the site. Vista requested permission to remove the
traffic control devices to which the City’s inspector agreed. Vista removed all of its traffic control
devices.
The City’s inspector testified
that after his inspection he notified the City’s traffic control division that
since Vista was finished with its work the traffic division could come in and
restripe the road so it was safe for third-party motorists. The City’s inspector and the City’s project
manager for installation of the medians both swore in affidavits submitted to
the district court that Vista, upon completion of its work, was not responsible
for traffic control. Thereafter, for
five days leading up to July 24, 2007, the City did not put any traffic control
devices in place at the medians or repaint the dividing line that was leading
directly into the center of one of the newly constructed medians.
At 3:30 a.m. on July 24, 2007, a
truck collided with the median flattening two tires and damaging its tire
rims. Roughly two hours later, Collard
was driving on the road and collided with one of the newly constructed medians,
totaling her vehicle and causing her various injuries. Collard sued the City and Vista under
Colorado’s Premises Liability Act § 13-21-115 (the “PLA”) and common law
negligence. The claims against the City
were dismissed based on immunity under Colorado’s Governmental Immunity Act, §§
24-10-101 to 120. Vista filed a motion
for summary judgment regarding the PLA claim which the court granted, and the Court
of Appeals upheld, based on the evidence that Vista finished its work and was
authorized to leave the work site and remove its traffic control items. Thus, the only claim remaining was the common
law negligence claim against Vista.
The district court judge granted a
motion for summary judgment in the favor of Vista regarding the common law
negligence claim. However, the Court of
Appeals reversed that decision because the motion was granted on the wrong
basis. The Court of Appeals found that
the trial court’s reasoning reflected an application of a common law doctrine
known as the “completed and accepted” rule.
Thus, the Court in Collard addressed, as a matter of first
impression, whether Colorado has adopted the completed and accepted rule or the
more modern “foreseeability rule.”
Generally, under the “completed and accepted” rule, an
independent contractor owes no duty of care to third parties with respect to
the work it has performed once that work has been completed by the contractor and
accepted by the property owner or general contractor. Once the contractor’s
work is accepted, the general contractor or owner becomes answerable for any
damages or injuries resulting from the defective or dangerous condition of the
work. However, as the Court of Appeals notes, the recent trend among United
States jurisdictions has been to abandon the competed and accepted rule
entirely in favor of the foreseeability rule.
The Court of Appeals went on to state that “the
foreseeability rule provides that a construction contractor is liable for
injury or damage to a third person as a result of its work, even after
completion of the work and acceptance by the owner where it was reasonably
foreseeable that third persons would be injured by such work due to the contractor’s
negligence or failure to disclose a dangerous condition known to such
contractor.” Collard, 2012 WL
5871446 at 9.
The Court of Appeals conducted a lengthy discussion
regarding both rules and the fact that Colorado appellate courts have not
officially adopted one or the other. In
the end, the Court concluded that Colorado has rejected the completed and
accepted rule in the specific context of construction law, including repair,
installation, and performance on a service contract. The Court found that Colorado appellate
courts have consistently relied on the foreseeability rule.
In applying the foreseeability rule to the Collard
case, the Court of Appeals did add one caveat.
The Court concluded “as a matter of first impression in Colorado, that
because Vista’s road construction work created a dangerous condition, it had a
tort 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; however, this duty
will not be imposed if Vista had a reasonable good faith belief that another
authorized party (here, the City) would
promptly take the necessary measures to eliminate the dangerous condition or
provide adequate warnings to foreseeable users.” Id. at 14
(emphasis added).
Based on that conclusion, the
case was remanded to the lower court to review the case under the proper duty
rule, foreseeability. Specifically, the
Court stated that attention should be paid to whether Vista had a reasonable,
good fair belief that the City would promptly take the necessary measures to
eliminate or provide warnings of the alleged dangerous condition on the site to
third parties.
For additional information regarding Colorado
construction litigation, please contact David M. McLain at (303) 987-9813 or by
e-mail at
mclain@hhmrlaw.com.
