Tort: Sub-subcontractor alleges subcontractor’s negligence caused accident

Where a sub-subcontractor alleged the subcontractor’s negligence caused an accident at the jobsite, the subcontractor’s motion to dismiss was denied. Although the parties’ relationship was based on a contract, it did not erase any common law duties the parties owed each other.

Background

This case arises out of an accident at a jobsite on property owned by Kinder Morgan Virginia Liquids Terminals LLC, or KMVLT. KMVLT hired Consolidated LLC to perform construction work. Consolidated subcontracted with GFP Cement Contractors LLCs to provide cement work, and GFP subcontracted with Commercial Ready Mix Products Inc., or CRMP, to supply and deliver cement.

CRMP hired Garry O. Smalley to drive a cement delivery truck to the jobsite. When Smalley drove CRMP’s cement truck to the jobsite on the day of the accident, he used the access road and followed directions from a GFP spotter. But while Smalley was complying with a spotter’s instructions, the road collapsed, causing the truck to roll and resulting in damages to the truck and injuries to Smalley. CRMP claimed as damages the harm to the cement truck and the value of the workers’ compensation it paid Smalley.

GFP has moved to dismiss CRMP’s third-party complaint, which alleges claims for negligence and breach of contract.

Analysis

In Virginia, if a party breaches a common-law duty, they may be liable under a theory of negligence, but if they breach a duty that was established only by contract, they can only be found liable based on a breach of contract claim. Plaintiffs can, however, pursue a negligence claim when they have a contractual relationship with the defendant if the source of harm is misfeasance or malfeasance – an affirmative act – and not simply a failure to perform a contractual duty.

The gist of CRMP’s claim – an action to recover for physical damage to its cement truck – extends beyond the purpose of its contract with GFP to supply cement. And at this stage of the litigation, CRMP has sufficiently pleaded that GFP assumed a duty to exercise reasonable care when instructing CRMP in using the construction access road. GFP’s choice to provide traffic control on the narrow, rocky access road is the kind of service that a party in GFP’s position should “recognize as necessary for the protection of [an]other’s person or things.”

GFP astutely points out that no party can raise a claim in tort based on negligent nonfeasance of a contractual duty, and it criticizes CRMP’s complaint for its repeated framing of GFP’s negligence as a litany of failures. Fair enough. However, though most of the allegations in CRMP’s complaint use language describing GFP’s failure to take actions ensuring the safety of the access road, CRMP also specifically alleges that GFP “negligently and knowingly required and directed the CRMP driver to operate CRMP’s commercial vehicle in an unsafe location and on an unsafe temporary access road.”

These allegations allow the court to reasonably infer GFP assumed a duty to exercise reasonable care to avoid causing physical damage when it directed CRMP and Smalley in using the access road – a duty that does not depend on any contractual agreement. Indeed, GFP’s contract with CRMP did not establish how or to what extent any party was responsible for safe travel on the access road.

Even if, as GFP claims, GFP and CRMP only interacted with each other, and Smalley only drove on the access road, because GFP and CRMP had a contract, this contract did not erase any common law duties the parties owed each other. On a motion to dismiss, this court cannot decide the precise boundaries of “reasonable care” in directing traffic on the construction access road. But the facts, as CRMP pleaded them, sufficiently allege both that that GFP owed CRMP a common law duty to exercise reasonable care and that GFP may have breached that duty, causing CRMP harm.

Third-party defendant’s motion to dismiss third-party complaint denied.

Commercial Ready Mix Products Inc. v. GFP Cement Contractors LLC, Case No. 2:24-cv-241, June 25, 2025. EDVA at Norfolk (Walker). VLW 025-3-266. 9 pp.