Opinion
No. CV 01 0806941
September 8, 2004
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF DEFENDANT TILCON CONNECTICUT, INC.
On October 16, 2003, this Court issued a short-form Order denying the Motion For Summary Judgment ("Motion") of defendant Tilcon Connecticut, Inc. ("Tilcon"), which had been filed in this case on February 26, 2003. Although, in the text of its Order, the Court did not state the reasons for its ruling, it represented to the parties that it would later issue a Memorandum of Decision for that purpose. In accordance with that representation, the Court hereby submits this Memorandum of Decision to explain the factual and legal bases for its denial of the defendant's Motion.
This case concerns an automobile accident that occurred on July 29, 1999 in a construction zone in the southbound lanes of Interstate 395 in Montville, Connecticut. On that date, as plaintiff Leslie Cunningham was slowing or stopping her Chevy Blazer in that construction zone, at a point where the right lane of travel was blocked by an arrow forcing traffic to taper the left into a single southbound lane of travel, the Blazer was hit from behind by two different vehicles, one driven by one Dylan Bisi and the other operated by an unknown motorist who fled the scene and has never been identified. As a result of these collisions, the Blazer rolled over and Ms. Cunningham suffered serious physical injuries for which she seeks money damages in this case.
The arrow in question had been placed in the location where the plaintiff came upon it by personnel from defendant Tilcon, which was then performing highway reconstruction work in that location under a contract with the State of Connecticut Department of Transportation ("DOT"). From the perspective of a motorist traveling southbound on Interstate 395 at the time of the accident, the arrow was erected on a downslope of the highway, several hundred feet south of the crest of a hill that had been reached from the north by climbing a long, right-turning upslope leading to it. The point of lane closure and road narrowing, which began at the arrow where the plaintiff's vehicle was hit, was not visible to an approaching southbound driver until she reached the crest of that hill, although other signage indicating upcoming construction work was erected for some distance before the crest.
In the Second Count of her Revised Complaint dated July 30, 2001, the plaintiff alleges that defendant Tilcon proximately caused the collisions and her resulting injuries and losses by its intentional erection and maintenance of the signing pattern that abruptly blocked her lane of travel and forced her to slow and stop her vehicle just before it was struck from behind on July 29, 1999. The plaintiff characterizes the signage as a public nuisance, claiming that it was so configured as to have the natural tendency to create danger for and inflict injury upon persons using the public highway and that, as such, it posed a continuing danger to such persons in exercising their common public right to use the highway. Tilcon has answered the plaintiff's Revised Complaint by denying that the signage it put up on the day of the collisions proximately caused those collisions or the plaintiff's resulting injuries. In addition, it has specially pleaded that the plaintiff's claims against it are barred by the "government contractor defense" because the signing pattern it used to control traffic through the construction zone where the collisions took place on the day in question was allegedly erected in strict conformity with several reasonably precise requirements imposed upon it by its contract with the DOT.
Tilcon made three distinct claims in its Motion For Summary Judgment: first, that the plaintiff's claim of nuisance fails as a matter of law because she cannot prove that it "intentionally" created the condition claimed to constitute an absolute public nuisance in this case; second, that the plaintiff's nuisance claim must fail as a matter of law because she cannot prove that the condition here claimed to constitute an absolute public nuisance posed a "continuing danger" instead of a one-time occurrence; and third, that it is entitled to prevail as a matter of law on its "government contractor defense." Tilcon supported its Motion with three substantial memoranda of law plus an excerpt from the plaintiff's deposition, affidavits from four witnesses with personal knowledge of its highway reconstruction activities at or near the scene of the collisions, and relevant portions of its contract with the DOT.
The defendant's memoranda were its original supporting Memorandum dated February 26, 2003, its Supplemental Memorandum dated April 25, 2003, and its Second Supplemental Memorandum dated June 9, 2003.
The affidavits submitted by the defendant were as follows: Affidavit of Jose Mimoso (1/8/03), attached as Exhibit A to the defendant's original Memorandum (2/26/03); Affidavit of John E. Dolde (4/16/03), attached as Exhibit D to the defendant's Supplemental Memorandum (4/25/03); Affidavit of Farhad Zarinejad (4/24/03), attached as Exhibit E to the defendant's Supplemental Memorandum (4/25/03); and Affidavit of Anthony Ciriello (6/6/03), attached as Exhibit F to the defendant's Second Supplemental Memorandum (5/28/03).
The plaintiff and her liability insurer, defendant Northern Insurance Company of New York ("Northern"), which had been sued under the uninsured motorist provisions of the plaintiff's automobile insurance policy, separately opposed the Motion with legal memoranda of their own, which they supported with additional portions of Tilcon's contract with the DOT and an excerpt from the deposition of Mr. Jose Mimoso, the Tilcon superintendent who personally decided where to set up the signage here at issue. In those submissions, as well as at oral argument, the plaintiff and Northern argued that each of Tilcon's claims should be rejected, for divers reasons to be discussed in detail below. With regard, in particular, to Tilcon's final claim, which was the principal focus of their opposition to the Motion, they argued forcefully that the government contractor defense was unavailable to Tilcon in this case because it had discretion under its DOT contract to erect the challenged signage in a different, safer manner than it did on July 29, 1999.
I
"The only purpose for a motion for summary judgment is to eliminate an unnecessary trial of issues as to which there is no real dispute for the trier of fact to resolve." Ralph P. Dupont, Dupont on Connecticut Civil Practice vol. 2, § 17-49.1 (LEXIS Law Publishing 2002) (citing Dowling v. Kielak, 160 Conn. 14 (1970); Dorazio v. M.B. Foster Elec. Co., 157 Conn. 226 (1969)). Specifically, summary judgment is proper when "pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277, 279 (1989) (citations omitted).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. The presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Internal quotation marks and citations omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247 (1992).
In ruling on a motion for summary judgment, the court does not try the facts presented, but must view them in the light most favorable to the nonmoving party in order to determine whether a genuine issue as to any material fact exists. If there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, the motion for summary judgment must be granted.
II
A defendant "intentionally" creates a nuisance when it intentionally creates a condition found to constitute a nuisance, whether or not it intended or understood that by creating that condition it was doing wrong or creating a nuisance. Beckwith v. Stratford, 129 Conn. 506, 511, CT Page 13352 29 A.2d 775 (1942) (declaring that the word "intentional," when used to describe an absolute public nuisance, means "not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance"). Thus, to establish that a defendant intentionally created a public nuisance, the plaintiff need only establish that it was the defendant's conscious objective to create the condition later claimed to constitute a public nuisance essentially as it was when it caused the plaintiff injury.
By the foregoing standard, there is certainly at least a genuine issue of material fact as to whether defendant Tilcon intentionally created the condition of danger which the plaintiff here claims to have constituted an absolute public nuisance, to wit: the signing pattern in the southbound lanes of Interstate 395 in Montville which, on July 29, 1999, extended over the crest of a hill to a point below the crest, not visible from north of the crest, where an arrow was positioned and closure of the right-hand lane began. This is so because the defendant has expressly admitted, as part of its government contractor defense, that it intentionally erected the signing pattern as it did in order to comply with what it claims to have been the mandatory signage requirements of its contract with the DOT.
The defendant, curiously, contends that it cannot be found to have intentionally erected the challenged signing pattern because under its DOT contract, it had no choice but to erect that pattern precisely as it did. It thereby suggests that conduct designed to comply with a mandatory contractual requirement is somehow rendered unintentional by the fact it is contractually required. The Court rejects this argument for several reasons.
First, the defendant's threshold decision to enter into the contract and be bound by its terms was in fact a voluntary decision which it freely made to further its own business interests. The fact that it knew, upon entering into the contract, that it would be bound by several mandatory terms included in all State highway construction contracts certainly did not render its decision to enter into the contract and be so bound anything less than fully intentional. In that sense, then, its decision to perform the contract precisely as it was written was one it always intended to make, from the moment it signed the contract until the time it erected the challenged signing pattern on the morning of July 29, 1999.
Second, the defendant always had the choice, if it determined that its performance of the contract as written would endanger others or otherwise be tortious or illegal, either to postpone its performance until the conduct required of it would no longer be dangerous, tortious or illegal, or if that was not possible, to desist from performing the work at all until suitable adjustments in its expected performance could be agreed to. In fact, it always had the choice — indeed, the obligation — to desist from engaging in tortious or illegal conduct purportedly required of it under the contract, for any contract requiring such conduct is itself illegal and unenforceable. Here, then, the defendant's intentional decision to erect the complained of signage as it did cannot be excused or explained away, much less be found to have been unintentional, merely because it was made for the purpose of complying with the mandatory terms of a contract.
Third and finally, the Court agrees with the plaintiff that the defendant was not in fact required by the mandatory terms of its DOT contract to erect the signing pattern here at issue precisely as it did, without taking account of any dangers it might pose to approaching motorists. Instead, the Court concludes, for the reasons set forth in Part IV of this Memorandum of Decision, that the defendant had discretion under the contract to depart from its guidelines for erection of signing patterns at or near construction sites when to do so was necessary to avoid such dangers, as by affording better sight lines to points of possible obstruction.
For the foregoing reasons, the Court denied the first aspect of the defendant's Motion For Summary Judgment.
III
As for the defendant's second claim on this Motion — that the dangerous condition here complained of was not a continuing danger, and thus not a nuisance — the defendant argues simply that the signing pattern here at issue was not in place for a sufficient period of time to become a nuisance, for it was only set up where the plaintiff came upon it for a single day. The plaintiff responds to this argument by recharacterizing those same facts — that the signing pattern remained in place for an entire day — and contending, based upon them, that the dangerous condition so created was sufficiently long-lasting to ripen into a nuisance.
There is no bright-line test in our case law for determining precisely how long a condition of danger must remain in the location where the defendant erected it before it may properly be classified a nuisance. Accordingly, the Court must examine relevant case law for examples of conditions that have been held to be of sufficient duration to constitute actionable nuisances.
In two relatively early cases, our Supreme Court made it clear that, while the continuing danger of a dangerous condition claimed to constitute a nuisance is an essential element of a nuisance claim; Gipstein v. Kirschenbaum, 118 Conn. 681, 683-84, 174 A. 261 (1934) (upholding the rejection of an absolute nuisance claim because "there was no evidence as to how long a slippery stair mat claimed to constitute a nuisance] had been in that condition before the plaintiff slipped and fell on it]"); the absolute duration of its proven existence before it causes the plaintiff's injury need not be years, or months, or even weeks. Stoto v. Waterbury, 119 Conn. 14, 15, 174 A. 189 (1934). In Stoto, in fact, the Supreme Court reversed the trial court's unexplicated rejection of a nuisance claim based in part upon the finding that the alleged nuisance — an open areaway along a passage between two buildings into which the plaintiff fell when walking through the passageway at night — had existed for two days before the plaintiff fell into it. Id. at 15, 21 (so ruling over a vigorous dissent in which the author argued that a mere two days was not enough time for a condition of danger to "ripen into" a nuisance).
In later cases, moreover, the Supreme Court made it clear that conditions of danger far shorter than two days' duration might well satisfy the continuing danger requirement of a nuisance claim. Thus, in DeMare v. Guerin, 125 Conn. 362, 365, 5 A.2d 711 (1939), the Court first observed that in certain circumstances, the operation of a motor vehicle upon a public highway might constitute such an intrinsically dangerous activity as to constitute a nuisance whenever, and for whatever period of time, the defendant engaged in it. Examples of such circumstances, as listed by the DeMare Court, included operation of a vehicle in such a mechanical condition that it ran only at a high speed that could not be lessened or regulated, operation of a vehicle by an intoxicated person, operation of a vehicle with a wholly ineffective braking system, and operation of a vehicle with a natural tendency to collide with other vehicles or run against pedestrians. By contrast, observed the Court, operation of a vehicle with no history of loss of control would not constitute a nuisance when, "due to some sudden or unexpected cause, the brakes failed and the car went out of control." Id. at 365. Against the background provided by the foregoing examples, the Court held that in the case before it, there was no proof of nuisance because
There was no evidence that, previous to the occurrence in question, the brakes had not been operating properly and no explanation of their failure at this time. It was as likely an explanation as any other, that this failure was due to some suddenly developing defect. The trial court was correct in holding that the jury could not reasonably find upon the evidence that the operation of the car by Guerin constituted a nuisance.
Id. at 365-66.
After DeMare, moreover, the Supreme Court has decided on more than one occasion that the operation of an inherently dangerous motor vehicle upon a public highway for any period of time can constitute a continuing danger, and thus an actionable nuisance. Thus, in Zatkin v. Katz, 126 Conn. 445, 11 A.2d 843 (1940), the Supreme Court upheld the trial court's decision to set aside a jury verdict because improper jury instructions had prevented the plaintiff from establishing his claim of nuisance based upon overloading a truck to the point that its operation upon the public highway, for any time at all, had become inherently dangerous.
Similarly, in Warren v. Bridgeport, 129 Conn. 355, 28 A.2d 1 (1942), the Supreme Court held that operation of a dark-colored street sweeper on a foggy public road, with only a single light illuminated, at 1:30 am., "produced a condition which had a natural tendency to cause danger and inflict injury," and thus constituted an actionable public nuisance. Responding specifically to the defendant's argument that the condition of danger posed by the unilluminated street sweeper was not continuing, the Court disagreed as follows:
The claim of the defendant that there was lacking the element of continuance necessary to establish nuisance . . . is answered in DeMare v. Guerin, 125 Conn. 362, 365, 5 A.2d 711, where we stated that we were not disposed to hold that under no circumstances could the operation of an automobile upon the highways constitute a nuisance. And while in that case we held there was no nuisance, the decision was on the ground that the facts disclosed no continuing danger. In the instant case the presence of the sweeper for the time and under the circumstances described might reasonably have been found to have been a continuing danger. Zatkin v. Katz, 126 Conn. 445, 449, 11 A.2d 843.
Warren v. Bridgeport, supra, 129 Conn. at 358.
Under the foregoing authorities, this Court could not reasonably conclude that the one-day maintenance of the allegedly dangerous condition here complained of was insufficient as a matter of law to make it a continuing danger, and thus an actionable nuisance. Accordingly, the Court also denied the second aspect of the defendant's Motion For Summary Judgment.
IV
The defendant's third claim on this Motion is that it is entitled to judgment as a matter of law because there is no genuine issue of material fact as to any essential element of its "government contractor defense." The defendant grounds its defense upon this Court's decision in Matlack, Inc. v. White Oak Corporation, No. CV 93-0529539 (Berger, A, Hartford-New Britain Judicial District, Jan. 25, 1996), 1996 Ct.Sup. 544, 16 Conn. L. Rptr., where Judge Berger extended the immunity enjoyed by federal government contractors against state design defect claims as to products manufactured by them for the United States military in conformity with reasonably precise, government-mandated specifications; Miller v. United Technologies Corp., 233 Conn. 732, 660 A.2d 8110 (1995); to a state public works contractor facing a state wrongful death claim based upon alleged negligence in designing and posting warnings at a state highway construction site which it set up and maintained in conformity with reasonably precise, government-mandated specifications for the erection of warning signs and barriers at the site. In Matlack, the Court noted that our Supreme Court, in Miller, had employed the following three-prong test, first articulated by the United States Supreme Court for design defects liability in Boyle v. United Technologies Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), to determine the validity and sufficiency of the defendant's government contactor defense:
"First, the government contractor defense applies only if the government dictated with reasonable precision the contents of the initial warnings . . . and limited or precluded the contractor from advising the user of additional information or revisions. Second, the contractor must have acted in conformity with those reasonably precise specifications established or approved by the government. Third, the supplier [must] have warned the United States about the dangers that were known to the supplier but not the United States." (Internal citations and quotations marks omitted.) Miller v. United Technologies Corp., supra, 233 Conn. 783.
Matlack, supra. Applying that test to the case before it, without first analyzing the propriety of extending Miller to claims against state public works contractors based upon injuries allegedly resulting from their compliance with workplace safety requirements set forth in their state contracts, the Matlack Court ruled that, "[i]n order to prevail on its motion for summary judgment, White Oak must prove that it complied with all three components of the Miller test." Id. Examining the evidence on the record before it, the Matlack Court granted the defendant contractor's motion for summary judgment based upon the following factual findings and legal analysis:
In fact, there is substantial reason for questioning whether the government contractor defense should be available to state public works contractors, especially in cases involving claimed compliance with safety requirements set forth in their government contracts. This is so for at least three reasons, which the Court will only mention as follows, without deciding the issues raised by them, since here, as in Matlack, the parties did not brief or argue them: issue:
First, the defense, as originally articulated by the United States Supreme Court in Boyle, applies only to design defect claims against government contractors which supply specially designed military equipment to the United States government. Miller v. United Technologies Corp. supra, 233 Conn. at 748 ("The rule articulated in Boyle applies to `federal procurement contracts' for military equipment.")
Second, the underlying rationale for the defense, so limited, is that federal policymakers making sensitive military procurement decisions must not be second-guessed or interfered with by the courts when attempting to maintain the delicate balance between the need to explore and develop new technologies to promote the national defense and competing concerns such as protecting the safety of citizens who may be injured by as-yet-unperfected applications of such new technologies. Id. at 747 ("The government contractor defense is intended to protect the discretionary decisions of the United States government from judicial scrutiny and to permit the government to acquire from its independent contractors equipment of any specifications that it requires. `In the military context, this immunity serves the . . . important purpose of shielding sensitive military decisions from scrutiny by the judiciary, the branch of government least competent to review them. Application of ordinary tort law to military design and procurement decisions is not appropriate, for the government is required by the exigencies of our defense effort to push technology towards its limits and thereby incur risks beyond those that would be acceptable for ordinary consumer goods.'" (Citations and internal quotation marks omitted.) . . . Furthermore, if such contractors were liable for damages resulting from design requirements imposed on them by the government, they might refuse to manufacture products that would put them at risk. In the alternative, the costs associated with any judgments against such contractors and the resulting increase in insurance costs would ultimately be passed on to the United States government. Boyle v. United Technologies Corp., supra, 487 U.S. 511-12.)
Third, it is well settled that the government contractor defense is only available to manufacturers who make products in accordance with "quantitative specifications that detail particular requirements to be met in manufacturing military hardware, . . . [not to those whose products are compliant with] "[q]ualitative remarks, precatory goals and safety guidelines" set forth in their government contracts. Miller v. United Technologies Corp., supra, 233 Conn. at 763-64 ("The reasonably precise specifications that the government must approve and with which a contractor must comply have been described as "quantitative specifications that detail particular requirements to be met in manufacturing military hardware." Kleemann v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir. 1989), cert. denied, 495 U.S. 953, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990) . . . Qualitative remarks, precatory goals and safety guidelines are not the type of reasonably precise quantitative specifications to which the Boyle test refers. Sundstrom v. McDonnell Douglas Corp., 816 F.Sup. 577, 584-85 (N.D.Cal. 1992); . . . see In re Aircraft Crash Litigation Frederick, Maryland, 752 F.Sup. 1326 (S.D.Ohio 1990). [Footnotes omitted.])
As to the first element of the government contractor defense, i.e., the state approval of reasonably precise specifications, Robert J. Hackling stated for White Oak that "[a]ll traffic signals and aligning were specified in the Special Provisions of White Oaks contract with the Department of Transportation of the state of Connecticut." (Affidavit of Robert J. Hackling, p. 1.) He further indicated that "[t]he traffic pattern approved by the [Department of Transportation] included specifications for (i) all painted highway lines and demarcations, (ii) slope, grading and slant, (iii) the number of highway lanes and (iv) the placement of jersey barriers." ( Id., p. 2.) "The first part of the test is met where the government reviewed and approved a detailed set of specifications." Miller v. United Technologies Corp., Superior Court, Docket No. 221788 9 Conn. L. Rptr. 13, 389, 393 (July 16, 1993) (Fuller, J.), rev'd in part on other grounds, 233 Conn. 732 (1995). Moreover, as to any claim of defective lighting, Mr. Champagne noted that "the Department was responsible for maintaining this lighting." (Affidavit of Joseph S. Champagne, p. 4(c).) Mr. Hackling also stated that "[t]he DOT maintained control over all of the highway lighting at the Project . . ." (Affidavit of Robert J. Hackling, p. 3.) The plaintiff has presented no facts indicating that the state gave White Oak discretion regarding the design, materials or methods. Thus, the defendant has satisfied the first part of the Miller test.
The second element of the Miller test is whether the work conformed to those specifications. There is no evidence that White Oak failed to conform with the government's specifications. Accordingly, White Oak has complied with the second prong of the test.
The third component of the government contractor defense is that the state was warned about dangers in the product known by the contactor. "The duty to warn extends only to dangers . . . which are unknown to the government. The third component is met when there is evidence in the record that the government knew about the problem and there is no evidence that the contractor withheld any additional information about the problem." Miller v. United Technologies Corp., supra, 233 Conn. 780. Mr. Champagne has attested that there were seven accidents in the eight months prior to this crash, and that White Oak had a duty to bring these accidents to the attention of the state and make recommendations to improve the safety for motorists. The plaintiff has not, however, presented any facts that would indicate that White Oak possessed any information which was not conveyed to the state or any information which the state would not have been independently aware. Indeed, logic dictates that it would be the state that would have this information in the first instance and not the contractor. "The duty to warn requires disclosure only when the supplier's knowledge of the danger or defect is superior to that of the government" Id. 780. The third test has thus been met.
Matlack, supra.
Insisting that this case "is on all fours with Matlack[;]" Defendant's Memorandum (2/26/03), p. 12; the defendant made the following argument in support of its government contract defense. First, it claims that its contract with the DOT contained certain mandatory requirements for the erection of signing patterns to maintain and protect traffic at all locations where highway reconstruction work was to be performed thereunder. On that score, it notes initially that on the first page of the contract, which is attached to its Second Supplemental Memorandum of Law (6/9/03) as Exhibit 1, the following documents are expressly incorporated therein and made a part thereof: "the original Bid Proposal issued by the State, . . . together with the State Standard Specifications Form 814A, January 1988 Supplement, Special Provisions and any project addendum/addenda issued, along with any and all attachments[.]" Maintenance and protection of traffic was designated as item #971001A in the contract, corresponding to Article 9.7.01 of Form 814A, which is attached to the Second Supplemental Memorandum as Exhibit 2. The contract also had several Special Provisions, including seventeen (17) pages of Special Provisions relating to item #971001A, numbered pages 207-23, which are attached to the Second Supplemental Memorandum as Exhibit 4.
Section 9.71.01 of Form 814A provides, inter alia, that "[w]hen a scheme for maintenance of traffic, which may include detours, is shown on the plans or described in the special provisions of the contract, this shall govern unless an alternate scheme acceptable to the Engineer is offered by the Contractor at no additional cost." Because the defendant's contract did provide a scheme for the maintenance and protection of traffic in the event of a right-lane closure, that plan, which appears on page 218 of the Special Provisions, governed on July 29, 1999, when a right-lane closure was required.
Under that plan, which was referenced as "Plan 1," the defendant claims that it was required to place signage at least 6,750 feet before the work area. As modified by the DOT on October 15, 1998, Plan 1 assertedly required the defendant to place the following signs at the following intervals leading up to the work area: (1) the first pair of signs, both "Fine Doubled" signs, were to be placed at least 6,750 feet before the work area, on both sides of the highway; (2) the second pair of signs, both "Road Work Ahead" signs, were to be placed 1,300 feet from the first pair of signs, on both sides of the highway; (3) the third pair of signs, both "Right Lane Closed" signs, were to be placed 1,300 feet from the second pair of signs, on both sides of the highway; (4) the fourth pair of signs, both saying "Reduce Speed to 45 MPH," were to be placed 800 feet from the third pair of signs, on both sides of the highway; (5) the fifth pair of signs, both "Lane Reduction Signals," known in the industry as "doglegs," depicting the merger of the right travel lane into the left, high-speed lane, were to be placed 800 feet from the fourth pair of signs, on both sides of the highway; (6) the sixth pair of signs, both saying "Reduce Speed to 45 MPH," were to be placed 500 feet from the fifth pair of signs, on both sides of the highway; (7) the seventh sign, placed 500 feet from the sixth set of signs, was to be the first arrow for the lane closure; (8) between the first arrow sign and the second arrow sign was to be a high-mounted, internally illuminated flashing arrow board; (9) thereafter, there were to be six more arrow signs, spaced 200 feet apart, for a total of 1,200 feet of arrow signs; and (10) there was to be a seventh arrow sign immediately before the work area and 350 feet from the last arrow sign. See Affidavit of Jose Mimoso (1/8/03), attached to the defendant's original Memorandum of Law (2/26/03), pp. 2-3. According to the defendant, it had no discretion to vary any of the traffic patterns mandated by the contract, including Plan 1 for right-lane closures, because the contract provided that no such adjustments could be made without approval of the Engineer, who was an independent contractor employed by the DOT, not an agent or employee of Tilcon.
The plaintiff counters this argument by noting that other provisions in the defendant's DOT contract describe the signing patterns set forth in the contact merely as "guidelines" for the placement of signs to maintain and protect vehicular traffic approaching and passing through highway construction zones, not absolute requirements that must be followed in all cases, equivalent in their precision to specifications for the manufacture of military equipment. The provisions in question, which appear in the Special Conditions of the contract, at pages 209-10 thereof, read in relevant part as follows:
The following guidelines have been prepared to assist traffic construction personnel in determining when and what type of traffic control patterns to use for various work items under certain conditions. These guidelines are directed to the safe and expeditious movement of traffic through work zones and to the safety of the work forces performing these operations . . .
The Basic Principles and Standards are Minimum: Methods illustrated for controlling traffic through work areas are typical situations. The proper application of the standard protective devices depends on actual field conditions.
TRAFFIC CONTROL PATTERNS: Traffic control patterns will be used when a work operation requires that all or part of any vehicle protrude onto any part of the travel lanes. The protection prescribed for each situation shall be based upon the following:
1. Speed and volume of the traffic.
2. Duration of the operation.
3. Exposure of hazards.
In case of horizontal or vertical sight restrictions in advance of the work area, the traffic control patterns shall be extended to provide adequate sight distance to the approaching traffic.
When installing the traffic control pattern, a "Buffer Space" should be provided. The Buffer Space should extend from the end of the transition taper to the beginning of the work area and should be free of equipment, workers, material, and parked vehicles. On multi-lane highways, where the posted speed limits are 45 MPH or more, the Buffer Space should be not less than 350 feet in length.
Although each situation must be dealt with individually, conformity with these provisions is required. In situations not adequately covered by these provisions set forth in the traffic control patterns the contractor must contact the' Project Engineer for assistance prior to setting up the work area.
PLACEMENT OF SIGNS: Signs must be placed in such a position to allow a motorist the opportunity to reduce speed prior to the location where the Contractor's workforce is present . . .
Allowable Adjustment of Signs and Devices shown on Traffic Control Patterns
The traffic control plans and patterns contained herewithin indicate the locations and spacing of the signs and devices under ideal conditions. It is desirable to have signs and devices installed as shown thereon.
Adjustments to these standard signing plans and patterns shall be made only at the direction of the Engineer. The signing patterns are to be installed, as directed by the Engineer, to consider abutting properties, driveways, side roads and the vertical and horizontal curvature of the roadway.
If adjustments are to be made to these standard signing patterns, the adjustments shall always be to improve the visibility of the signing and devices and to better control traffic. The Engineer may require that the signing pattern be located significantly in advance of the construction work site, in order to provide better sight line to the signing and safer traffic operations through the work zone.
Contract, Special Provisions, pp. 209-10. (Emphasis added.)
Some such guidelines, the plaintiff rightly notes, establish "minimum" distance requirements for the spacing of signs, thereby suggesting that the contract's requirements would not be violated if larger distances were used. An example of such a requirement is that which prescribes the minimum, 350-foot length of the Buffer Zone between the final lane tapering arrow and the start of the work zone. A longer Buffer Zone would surely not have violated the contract even though it would have been inconsistent with the minimum distance prescribed in Plan 1.
Others provisions go further, expressly requiring that alterations be made in standard signing patterns whenever it is necessary to do so in order to ensure the safety of highway workers or the motoring public. An important, and particularly relevant, example of such a provision is that which requires that, "In case of horizontal or vertical sight restrictions in advance of the work area, the traffic control patterns shall be extended to provide adequate sight distance to the approaching traffic." That, of course, is the very sort of alteration in the standard signing pattern which the plaintiff claims that the defendant should have made on July 29, 1999 to avoid creating a nuisance at the point on Interstate 395 where her accident occurred. Since the signing pattern led up to and over the crest of a hill to a point where, according to the plaintiff, signs and arrows effecting a right-lane closure appeared too quickly for oncoming motorists to see and react safely to them, there is at least a genuine issue of material fact as to whether, in the circumstances presented, the above-quoted language empowered the defendant — indeed, required it — to extend the signing pattern before proceeding with its daily work. Even if the ultimate design of the modified signing pattern had to be approved by the Project Engineer before the work proceeded, the entire contract, read in the light most favorable to the plaintiff can reasonably be construed to require that the pattern be extended in some appropriate way to compensate for vertical sight restrictions that made use of the standard signing pattern unsafe and impermissible.
For all of the foregoing reasons, the Court also denied the third and final aspect of the defendant's Motion For Summary Judgment.
Michael R. Sheldon, J.