By Jordan W. Charness

“I can’t take it anymore! This construction is driving me nuts! Not only that, it almost killed me too!!”

Peter was really on a tear this morning. I’ve seen him riled up on many an occasion but this was the worst that I had seen him in years. It doesn’t usually take much to set Peter off, particularly when it has something to do with driving.

Cars and driving them: two of Peter’s most favourite things. If something gets in the way of him enjoying either of these two pastimes, he can become quite irate . In this case, he told me that the long hot dry spell coupled with the construction that is going on around the city was just about enough to drive him over the edge.

As we’ve all noticed, summer is construction time in the city. May to November is the season when they repair our roads, and new building construction can cause traffic jams as cranes and tractors do their thing – or try to at least. Road repair jobs tend to last from the spring right through the fall.

Mix all this major work with record high temperatures and blistering humidity and you have a recipe for road rage. It’s quite amazing that there are so few stories about drivers losing their cool during this hot construction laden time. I thought for sure that this was what Peter wanted to complain about.

I had my whole speech ready. I was going to tell him that the government has no control over the weather, so much as he’d like to he could not blame the politicians for all the hot air we are experiencing. In addition, construction crews really have no choice but to do all the work at once and do it during milder weather.

To my surprise, this was not what Peter had in mind. Actually what happened to him was much more dangerous and surprising than a case of heat stroke.

While driving down the expressway, out of the corner of his eye he noticed that a sheet of opaque plastic had blown off a part of the construction site and was heading straight for him. Traffic was packed and he had no room to manoeuvre to either his left or right. A sheet of plastic lifted up over the roof of his car and settled on his windshield. For a terrifying moment Peter was driving blind.

Fortunately he was driving an open roof sports car and he managed to grab hold of the plastic and rip it off his windshield. Thanks to his presence of mind a serious accident was avoided. Peter wanted to know who would’ve been responsible for the accident if one had occurred.

This brings to mind several interesting legal principles. The first is that whoever causes damage is responsible to pay for it. In this case, Peter would first have to ascertain who owned the plastic and where it had come from.

Although Peter may have thought that the plastic had blown off a construction site he would have to prove it before a court. In order to do that he could look to see if there was other similar plastic used in the road construction and if there was, he should take a picture of it.

Once Peter had established that it was construction residue that had temporarily blinded him, he would have to find out whether it was a provincial, city, or private construction crew that had put out the plastic. There is no point in suing the city when it’s actually a provincial road repair or vice versa.

In addition Peter would have to show that the loose plastic cable flew off the construction site as a likely result of negligence on behalf of the work crew. If the construction company (or the city or whoever) could prove that they had been prudent in using this type of plastic and had properly followed the norms for installing this material at that site, they could try to use an argument that the plastic flying was beyond their control. This would be a type of force majeur defense where the defendant tries to blame the damage on something that was not foreseeable.

A tornado zipping down the expressway would be something so unusual as to be unforeseeable. If this mythical tornado had ripped a sheet of plastic off of a place where it was properly attached the construction company might be able to exonerate itself with this type of argument.

Anyway you look at it, this type of accident would not have been Peter’s fault and the incident alone was certainly scary enough to stay in his mind for a long time.

(Please note that I did not address the insurance aspects of this type of accident as that is a whole different story)

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