Recommendation To DOT Is Not Sufficient To Impose Liability For Injury

In Davies v. Peter Ferentini, plaintiff was injured when his car struck a guard rail that had been opened to allow an access road for the construction of a Home Depot store. Upon opening the guard rail, Type II End Assemblies were installed. The plaintiff argued that his car would not have flipped over and landed on its roof if Type I End Assemblies had been installed. Plaintiff had alleged that the Home Depot and its engineer had recommended the installation of the allegedly defective Type II End Assemblies, but the DOT had the final say as to installation. As to Home Depot, the Court found that its engineer, not Home Depot itself, had made the recommendation. As to the engineer, the Court held that "applying the Espinal factors, the actions of [engineer], in providing construction drawings calling for the installation of the Type II End Assemblies pursuant to the DOT's directives, review, inspection and approval, do not rise to the requisite standard of creating a dangerous condition so as to be deemed to have launched a force or instrument of harm (see Church v. Callanan Indus., 99 NY2d 104 [2002])."