specially concurring.
I disagree with the majority’s conclusion that Instruction No. 12 was properly given in the instant context. That instruction could have misled the jury to believe that because the state had planned the detour, the defendant construction companies while on the job had no duty to keep it in safe condition. However, because two of those companies were no longer on the job, their duty had terminated. The third had no direct involvement in the construction of the detour; thus, it never had the duty to begin with. Accordingly, I concur in the result of part II of the majority’s opinion, and fully concur in the remainder of its opinion.
Instruction No. 12 provided:
A highway contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work where the contractor performed the work in strict accordance with the terms of the contract, or performed the work according to the plan and specifications furnished by the State. Because a highway contractor is required to follow the plans and specifications, that contractor cannot be held to guarantee that the work performed as required by the contract will be free from defects, or withstand the action of the elements, or that the completed job will accomplish the purposes intended. R., Vol. II, p. 264.
As the majority notes, this properly states the law as established in Black v. Peter Kiewit Sons Co., 94 Idaho 755, 497 P.2d 1056 (1972), and Elce v. State, 110 Idaho 361, 716 P.2d 505 (Sup.Ct.1986). To prove this point, the majority quotes from the former:
“A contractor is required to follow the plans and specifications and when he does so, he cannot be held to guarantee that the work performed as required by his contract will be free from defects, or withstand the action of the elements, or that the complete job will accomplish the purpose intended. He is only responsible for improper workmanship or other faults, or defects resulting from his failure to perform.” Black, supra, 94 Idaho at 575, 497 P.2d at 1058, quoting Puget Sound National Bank v. C.B. Lauch Construction Co., 73 Idaho 68, 77, 245 P.2d 800, 805 (1952).
This quote demonstrates that Instruction No. 12 correctly states the law; it also demonstrates that the instruction had no application to the facts of this case.
This case did not involve allegations that the surface was defective, or failed to withstand the elements, or that the completed job did not accomplish its intended purpose — the sort of allegation Instruction No. 12 speaks to. Only such allegations would warrant the issuing of Instruction No. 12. To the contrary, the Greens alleged inadequate signing, inadequate snow removal from signs, inadequate repair of vandals’ damage to a flashing light, and inappropriate use of portarails at the entrance and along the detour. As long as *8the construction companies remained on the job, they had a primary and nondelegable duty to maintain it in a safe condition. See generally 40 C.J.S. Highways § 252(b). As the Minnesota Court observed:
The fact that the contract gives certain assignments to the State involving warning signs, traffic control signs, and barricades does not eliminate the responsibilities of the contractor for the safety of the general public. ... [T]he State and the private road contractor possess a mutual duty to protect the motoring public from dangerous conditions in the construction zone. Cummins v. Rachner, 257 N.W.2d 808, 813 (Minn. 1977) (emphasis added).
This nondelegable duty was recognized in Instruction No. 3. However, the jury may have inferred from Instruction No. 12 that as long as the construction companies followed the state’s plans and specifications, they could not be held liable. Consequently, the inappropriate issuance of Instruction No. 12 may have led the jury to absolve the construction companies of their nondelegable duty.
Nevertheless, the error was harmless. As the record reveals, two of the construction companies, Allied and Bannock, were off the job at the time of the accident. Consequently, their duty had terminated. The third, Western, was the prime contractor for the realignment of the highway, but was not directly involved in the construction of the detour. As noted in the plaintiffs’ initial brief: “The detour was not part of any company’s original contract. It was installed under an Avoid Verbal Order (AVO), an addition made to Bannock Paving’s contract at its request. The State of Idaho staked out the detour, Bannock graded it, and Allied paved it.” Appellants’ Brief, p. 5 (citations omitted) (emphasis added). Because Western was not directly involved, it had no duty to maintain the detour in a safe condition.
In sum, any error in issuing Instruction No. 12 was harmless, because it negated a duty that Allied and Bannock no longer bore at the time of the accident, and Western never bore. Thus, there is no occasion to reverse the district court’s denial of plaintiffs’ motion for judgment n.o.v.