Friday, May 15, 2009

Issues of Fact Prevent Contractor From Winning Summary Judgment

In Henriquez v. Parsippany Const. Co., Inc., the plaintiffs were injured when their car veered too far into the next lane of a highway that was under construction. The plaintiffs argued that the temporary markings were not sufficient to allow them to identify their path of travel and that caused them to veer into the next lane, causing an accident. The construction company moved for summary judgment arguing that it followed the DOT specifications and that DOT approved the temporary striping. The general rule is that a "builder or contractor is justified in relying upon the plans and specifications which he or she has contracted to follow unless the plans are so apparently defective that a builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury." However, here the Appellate Division, Second Department found that there were questions of fact regarding the condition of the striping at the time of the accident. Specifically, there was evidence offered the the stripes were fading making it difficult to determine whether to follow the old stripes or the new temporary stripes.

Vincent T. Pallaci is a New York construction attorney.  He can be reached at 

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