Practice Makes Perfect: Examples and Explanations

  Lawrence Construction Company, the general contractor, excavated the site to a depth of 30 feet. To shore up the sides of the excavation, it placed heavy planks against the sides of the excavation, and braced them with vertical beams pounded into the bottom of the pit.

  While all this was going on, Rivera, a driver for Riley’s Refuse Company, arrived carrying a large dumpster for use in disposing of construction debris. There was no room in the excavation for it, so Roberts, Lawrence’s foreperson, ordered Rivera to leave it at the side of Ridgewood Lane, a few feet from the edge of the excavation. Rivera didn’t want to leave it there, because a city ordinance barred obstructing a public way with a dumpster. There was not quite enough room to put the dumpster down without extending into the lane; his company could get a ticket. However, Roberts ordered him to do so, so Rivera complied. He made his feelings about the order known, however, by letting the dumpster drop down off the truck unusually hard next to Roberts, making him start.

  Brontas, an engineering professor at Suffield, was watching the work from the sidewalk. She saw the dumpster drop, and the ground shake, but didn’t say anything to anyone about it.

  An hour later, Gretsky arrived to deliver a rented backhoe to be used in the construction. As he drove it down into the excavation, he noticed that the shoring along the side of the excavation near the dumpster was bulging out. He thought it might be giving way, so he drove the backhoe toward the wall. He placed the bucket of the backhoe against the bulging planks, to prevent a collapse until something could be done. However, as he moved the bucket against the wall, it caught on one of the buckled planks. He jostled the bucket to get it loose, but it made the buckling worse. Suddenly, the wall collapsed. The dumpster, which was on wheels, rolled into the excavation; Rivera, in his irritated state, had failed to secure the brakes.

  Gretsky was thrown from the backhoe, half buried in the collapsing planks and earth, and severely injured. To make matters worse, as the earth continued to slide, water came pouring out of the side of the excavation and began to fill the pit. A large water main, unmarked on any available engineering drawings, ran under Ridgewood Lane, and burst when the earth around it collapsed into the excavation.

  The story gets worse. While frantically trying to extricate Gretsky by digging away the earth, Yee, a construction worker, undermined the dumpster, and it settled on Gretsky, making it harder to extricate him. They finally managed to get Gretsky out, soaking wet and chilled, and rushed him to the hospital. He had sustained multiple serious injuries, and later contracted pneumonia as well. He died three weeks after the accident.

  Discuss the problems Gretsky’s estate will face in determining who is liable for the accident, and for what damages. Consider both the problems of establishing liability and the possible defenses. Please explain how you think each of the issues is likely to be resolved. Explain your reasoning fully.