Hurt Walking or Driving Past a Job Site

A construction project does not stop at its fence line. Materials fall from upper floors, sidewalks are closed and rerouted, trenches open in the street, and equipment moves through traffic. When someone who is not working on the project is hurt, the rules are different from those for the crews inside, which are explained on our construction site injuries page. A passerby is a member of the public, and the general duty of care applies in full.

Construction areas open to the public are also listed among the hazards on our dangerous property conditions page. This guide explains who can be responsible, what changes when the site is a public street or building, and the deadlines that apply.

How does a claim by a passerby work, step by step?

Get care and make a record. If a vehicle was involved, report it to the police. Photograph the hazard, the barriers or lack of them, any closure or detour signs, and the debris or equipment involved.
Identify who was working there. Company names on fences, trucks, portable toilets and equipment, and any posted project signs, help identify the general contractor and subcontractors.
Identify who owns or controls the property. A private lot, a city sidewalk, a county road and a state highway each point to a different owner, and a public owner brings its own claim rules.
File a claim with any public agency within six months. A claim for personal injury against a public entity generally must be presented within six months after the injury (Government Code 911.2). Our guide on filing an injury claim against a city or county shows where to send it in Sonoma and Marin.
Sue the agency within six months of a written rejection. If the agency gives written notice rejecting the claim, a lawsuit generally must be filed within six months after that notice is delivered or mailed (Government Code 945.6).
Sue private companies within two years. A lawsuit for personal injury against a contractor or private owner generally must be filed within two years (Code of Civil Procedure 335.1). Our guide to California personal injury deadlines covers the exceptions.
Prove the lack of care. The claim rests on showing that a party failed to use reasonable care, or for a public entity, that its property was in a dangerous condition under the Government Code.

Who may be responsible, and under what rule?

Party	When it may be responsible	Rule
The contractor or subcontractor doing the work	Its own lack of ordinary care, such as unsecured materials, an unmarked trench, or a sidewalk closure with no safe route	Civil Code 1714
The owner, tenant or anyone else controlling the property	It failed to use reasonable care to keep the property reasonably safe; that duty cannot be shifted to a contractor	CACI 1001; CACI 3713
A hirer bound by a safety statute or regulation	A statute or regulation requires specific safeguards for others' safety, creating a duty the hirer cannot delegate	CACI 3713
A city, county, district or the State as owner	Its property was in a dangerous condition, created by its employee or known to it in time to protect against it	Government Code 830 and 835; CACI 1100
A public entity for its contractor's conduct	To the same extent a private person would be liable for the contractor	Government Code 815.4
A driver or equipment operator	Careless driving or operation that injures someone nearby	Civil Code 1714

What does the owner of the site owe the public?

The Judicial Council's instruction on the basic duty of care says a person who owns, leases, occupies or controls property must use reasonable care to keep it reasonably safe, including reasonable care to discover unsafe conditions and to repair, replace or give adequate warning of anything that could reasonably be expected to harm others (CACI 1001). A jury may weigh factors such as the location of the property, the likelihood that someone would come onto it the way the injured person did, the likelihood and seriousness of harm, whether the owner knew or should have known of the condition, how hard it was to protect against the risk, and how much control the owner had.

The Judicial Council's directions for that instruction add that, under the doctrine of nondelegable duty, a property owner cannot escape liability for failing to maintain its property in a safe condition by delegating the duty to an independent contractor. The notes to CACI 3713 quote a decision explaining that a possessor of land answers for harm caused by its contractor's negligent failure to keep buildings and structures in reasonably safe condition, no matter how carefully the contractor was chosen.

That is a sharp contrast with the rule for the contractor's own workers. For them, a hirer is presumed to have handed safety to the contractor, as our guide on general contractor responsibility for a subcontractor's worker explains. The Judicial Council says that presumption, the Privette doctrine, concerns independent contractors and their workers; a pedestrian is neither.

What if the work is on a public street, sidewalk or building?

A public entity is liable for a dangerous condition of its property if the condition caused the injury, created a reasonably foreseeable risk of that kind of injury, and either an employee's negligent or wrongful act or omission created it, or the entity had actual or constructive notice in time to protect against it (Government Code 835). A dangerous condition is one that creates a substantial, not minor or trivial, risk of injury when the property or adjacent property is used with due care in a reasonably foreseeable way (Government Code 830(a)). What that means in practice is the subject of our guide on what makes public property legally dangerous.

Two details matter on construction projects. Public property does not include easements, encroachments and other property located on public land but not owned or controlled by the entity (Government Code 830(c)), so a private contractor's equipment on a city street may not be the city's property. And when a public agency hires a contractor, the agency is liable for the contractor's wrongful act or omission to the same extent a private person would be (Government Code 815.4). For crashes involving road work, see our guide on a crash on a dangerous road or with a county vehicle.

Do worker safety rules help a passerby?

Sometimes, but with care. A violated regulation creates a presumption of negligence only if the injured person was in the class the regulation was meant to protect and the injury was the kind it was designed to prevent (Evidence Code 669). Labor Code 6304.5 describes Cal/OSHA standards as aimed at maintaining and enforcing employee safety, so a passerby relying on one must show it was also meant to protect people like them. Our guide on Cal/OSHA citations in an injury case explains how those rules, and the limits on using citations, work. Even without a presumption, the general duty of ordinary care under Civil Code 1714 still applies.

The way the site was set up remains powerful evidence. Unsecured materials at height, unstable scaffolds and open edges above a sidewalk all bear on whether reasonable care was used; the scaffold and ladder rules are summarized in our guide on scaffold, ladder and roof falls.

What changes the answer?

You went past a barrier or closure sign. Civil Code 1714 excuses a defendant to the extent the injured person brought the injury on themselves through a lack of ordinary care, and CACI 1001 lets a jury weigh how likely it was that someone would enter the area the way you did.

A construction vehicle hit you. The driver's employer may share responsibility; see holding a driver's employer or a vehicle's owner responsible.

A public agency did the work with its own crew. Liability can rest on an employee's negligent act creating the dangerous condition, without proof of advance notice (Government Code 835(a)).

A child was hurt. Claims for children follow some rules of their own; see our guide on injury claims for children.

The site was a store or business you were visiting. The same owner's duty under CACI 1001 applies to customers near a remodel area, and whether the business knew or should have known of the hazard is one of the factors a jury weighs.

What could this look like? An example

For example, imagine a woman walking to work in downtown Santa Rosa. A sidewalk next to a building renovation is closed, and a sign directs pedestrians into a temporary plywood walkway built by the general contractor. One sheet has lifted at the edge, she catches her foot, and she falls, breaking her wrist.

The general contractor built and maintained the walkway, so its own lack of ordinary care is at issue (Civil Code 1714). The building owner hired the contractor for the renovation, and the Judicial Council's directions for CACI 1001 say an owner cannot escape its duty to keep property safe by delegating it to a contractor. The sidewalk itself belongs to the city, so if she believes the city also shares responsibility, she must present a written claim within six months (Government Code 911.2). Her claims against the contractor and the owner follow the two-year lawsuit deadline. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make after being hurt near a job site?

Leaving without photographs, before the crew moves the barrier, cleans up the debris or repairs the walkway.
Not writing down the company names on the fence, trucks and equipment.
Assuming only the contractor is responsible and never looking at the property owner.
Missing the six-month claim deadline because the work was on a city sidewalk or county road.
Accepting a quick payment from a contractor's insurer before the full injury is known.

What should I do this week?

Return to the site safely, or ask someone to, and photograph the area from several angles.
Write down every company name visible on signs, fences, vehicles and equipment.
Find out whether the spot is a private lot, a city or county street or sidewalk, or a state highway.
Get the names and numbers of anyone who saw what happened.
Keep all medical records, bills and receipts in one place.
If a public agency may be involved, calendar the six-month claim deadline now.

Frequently asked questions

Do I need to file a government claim if a private company was doing the work?

Only for a claim against the public agency. If you believe the city, county or State also shares responsibility, the six-month claim rule applies to that claim (Government Code 911.2). Claims against private companies follow the two-year lawsuit deadline (Code of Civil Procedure 335.1).

Debris from a job site damaged my car. Can I claim for that too?

A claim for damage to your vehicle can be made against the party whose lack of care caused it. If the party is a public entity, a claim for damage to personal property is also due within six months (Government Code 911.2).

Does the Privette rule protect the owner when a contractor hurt me?

No. The Judicial Council describes Privette as a rule about a hirer's liability to the independent contractor and its workers. For the public, the owner's duty to keep its property reasonably safe is nondelegable, according to the directions for CACI 1001.

What if no one knows which company left the hazard?

The property owner's duty under CACI 1001 does not depend on naming the contractor first. Asking the owner which companies were working on the project that day is a practical first step.

How long does a claim like this take?

It depends on the injuries, the number of parties and whether a lawsuit is needed. Our guide on how long a personal injury case takes walks through the stages.

If you were hurt walking or driving past a construction site in Sonoma or Marin County, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

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