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Contractor Not Liable for Pedestrian Death

carAt some point prior to 2007 Flansburgh Associates, Inc. contracted with the city of Lawrence to provide architectural services and to oversee the construction project of a new high school.  These services also included a traffic study and walkways from the school to the street.  In October of 2007, Dario Rodriquez was walking near Lawrence High School as he made his way to a local fast food restaurant that necessitated his crossing route 114.  As he was making his way across the street, a car approached and struck Dario.  Dario tragically died to the injuries he sustained in this pedestrian crash.  The motor vehicle was driven by James Gianni who was subsequently convicted of negligent operation of a motor vehicle so as to endanger in criminal court.

The estate of the minor, through a duly appointment administrator of the estate, brought a lawsuit against two of the drivers involved in the crash, Flansburgh Associates, and the consulting company that conducted the traffic study alleging claims of negligence, wrongful death and negligent infliction of emotional distress.  The estate additionally sought to include the city of Lawrence and the Commonwealth of Massachusetts as defendants.  The court concluded that the city and the state did not have an established duty of care owed to the decedent and therefore were not the proximate cause of the minor’s injury.  As such, they were not added to the underlying suit.

Flansburgh Associates and the consulting company filed a motion for summary judgment claiming that because the Commonwealth and the city were found to have no liability, there cannot be liability for the two entities who had a contract with the State.  The lower court agreed and found that Flansburgh did not owe a duty of care to the Plaintiff, did not breach a duty of care, and was not the proximate cause of the minor’s death.  The Plaintiff appealed.

On appeal the Plaintiff claims that Flansburgh and the consulting company negligently performed their contractual obligations in connection with the construction project whereby pedestrians, such as minor, were exposed to foreseeable “safety concerns.”  Additionally, the Plaintiffs claim that there was a duty to, “communicate to the city known safety hazards regarding children traveling between the high school and the fast food restaurants located across Route 114.” Because there was a duty of care, according to the Plaintiff, the subsequent breach of these duties was the cause of the minor’s death.

The court disagreed.  The court held that the contractual agreement between the city and the Defendants did not establish a duty of care to any third party such as the minor.  As for the public policy argument, the court held that any duty of care as a matter of public policy fails.  The court believed this to be outside of any inherent or implied part of the contractual relationship that was established between the city and the defendants.

To read more on the above referenced case, please see Viviana Resto v. Alex Delgado & others, on the Massachusetts Court page.  Go to opinions and  search by Party Name.  If you believe you have a wrongful death case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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