14 THE QUEENS COURIER • QUEENS BUSINESS • MARCH 8, 2018 FOR BREAKING NEWS VISIT WWW.QNS.COM
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THE ROAD CONTRACTOR Q: One night, I was driving on a highway that was undergoing road construction. I
would drive there a couple times almost everyday. On the day of my accident, I was traveling
at 55 mph, saw a hole in the road and slowed maybe to 45 mph before the accident. Rather
than traveling down a ramp that had been put there, my vehicle became airborne.
The contractor had entered into a contract with the DOT to replace certain
bridges. The project included the removal of a small hill. After removing the hill, the
contractor placed gravel in the area, creating a slope. He says (1) that the gravel was placed
in accordance with the DOT’s standard specifications, (2) that it had been sampled by the
DOT, (3) that DOT inspectors approved the gravel slope, (4) signs and barrels were placed in
accordance with the specs, and (5) at all times, a DOT engineer-in-charge was on site, approving
both the work and the placement of warning signs.
Two volunteer firefighters responded to the accident. They recall that, earlier in
the day, the highway section had been lowered so that the gravel portion was approximately
three feet lower than the paved portion. The ramp connecting the two was approximately 15
feet long. The posted speed limit was 55 miles per hour, although several cars traveling
significantly slower had ‘bottomed out’. In other words, this was an uneven road with a
sharp drop off, perhaps two feet deep.
My friend says I cannot sue the contractor, because its agreement was only with
the State, and I am just a ‘third party’. Is that so?
A: That is far from necessarily so. There are times when a contractor may indeed be
said to have assumed a duty of care – and thus be potentially liable in tort – to a third party.
Factors that can support third-party liability include the following: (1) the contractor, in
failing to exercise reasonable care in the performance of his duties, launched a force or
instrument of harm; (2) you detrimentally relied on the contractor’s continued performance
of his duties; and (3) the contractor had entirely displaced the State’s duty to maintain the
premises safely. Take this case to a lawyer: it is quite possible that you will succeed.