Opinion
No. 22438-4-III
Filed: February 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-2-02556-7. Judgment or order under review. Date filed: 10/02/2003. Judge signing: Hon. Salvatore F. Cozza.
Counsel for Appellant(s), Edward A. Dawson, Dawson Meade, 1310 W Dean Ave, Spokane, WA 99201-2015.
Marcia Marie Meade, Attorney at Law, 1310 W Dean Ave, Spokane, WA 99201-2015.
Counsel for Defendant(s), Hugh T. Lackie, Evans Craven Lackie PS, 818 W Riverside Ave Ste 250, Spokane, WA 99201-1095.
Peter Joseph Johnson, Johnson Law group, 818 W Riverside Ave Ste 700, Spokane, WA 99201-0916, Counsel for Respondent(s)
Kevin James Curtis, Attorney at Law, 601 W Riverside Ave Ste 1900, Spokane, WA 99201-0627.
On October 28, 2000, Dale Bradley was driving in the center lane of Sprague Avenue and began to turn left onto Dishman Road. Unfortunately, Mr. Bradley was unaware that four days earlier this portion of Sprague had become a five-lane, one-way street as the result of the Valley Couplet roadway project. When turning left, Mr. Bradley crossed two lanes of traffic and drove directly into the path of John Sager, who was driving his motorcycle in the lane closest to the curb. Mr. Sager died from his injuries. A wrongful death lawsuit was filed by his family and estate (collectively `Ms. Sager') against the County, the Bradleys, and K.C. Construction, Inc. Ms. Sager settled with the County and the Bradleys, and K.C. Construction was dismissed on summary judgment.
Ms. Sager appeals, contending the court erred by granting summary judgment because K.C. Construction had a duty (1) to reasonably anticipate and alleviate all dangerous conditions in or near the construction area; (2) to use ordinary care when complying with the standards set forth in the Manual on Uniform Traffic Control Devices (MUTCD); and (3) to warn motorists about dangerous conditions caused by construction and roadway design. Ms. Sager also maintains that there are numerous issues of fact that must be resolved by a jury. Because we conclude K.C. Construction did not have an independent or concurrent duty to use ordinary care to remove or repair hazardous conditions beyond the boundaries of the construction zone, we affirm the judgment of the trial court.
FACTS
Cause of Action. On the morning of October 28, 2000, John Sager was driving his motorcycle westbound on Sprague Avenue between Argonne and Dishman Road. At the time, Sprague was a one-way arterial going westbound as a result of the Valley Couplet roadway project.
Mr. Sager was traveling in the southernmost lane of Sprague at Argonne. Dale Bradley was also traveling westbound on Sprague, but he was driving a minivan in one of the center lanes. Unaware that Sprague had been changed from a two-way street to a five-lane, one-way street, Mr. Bradley made a left-hand turn onto Dishman cutting across two lanes of traffic. By turning left, Mr. Bradley drove directly into the path of Mr. Sager. Mr. Sager's motorcycle struck Mr. Bradley's van. Mr. Sager subsequently died as a result of the injuries he sustained in collision.
Ms. Sager filed a negligent construction lawsuit against K.C. Construction, Inc., the County, and Dale and Patricia Bradley. Ms. Sager settled with the Bradleys and the County. K.C. Construction was dismissed on summary judgment. Ms. Sager challenges this decision on appeal.
Valley Couplet Project. In 1999, Spokane County redesigned portions of Sprague as part of the Valley Couplet. K.C. Construction, Inc. was the general contractor on the project.
Prior to the redesign, Sprague had seven lanes of traffic at the Dishman intersection: three westbound, three eastbound, and a lane specifically designed for left turns. The left-turn lane for westbound traffic turning onto Dishman was comprised of a raised center island and white striping consisting of a wide channeling and a stop bar.
Construction began on the Valley Couplet in 1999. As designed by the County, the Valley Couplet created a new four-lane, one-way road, Appleway, to serve east-bound traffic from the Interstate 90-Sprague interchange to University Road. All westbound traffic from University to Thierman Road would travel on Sprague, which would be reconfigured to accommodate five lanes of one-way westbound traffic.
Terms of the Original Contract between the County and K.C. Construction. K.C. Construction was the general contractor for the Valley Couplet roadway project. Ultimately, the work was bid out in two contracts due to changes in the scope, sequencing, and timing of the project. The original plans of the first contract dealt with the reconfiguration of Sprague to a one-way street only from University to just east of Dishman.
This original reconfiguration was to be accomplished by (1) removing the islands from the center lane, (2) grinding off the overlay on all five westbound lanes, and
(3) placing permanent striping on the new surface. Because the plan called for a complete overlay of the old surface — resulting in a completely new surface — the plan did not expressly require K.C. Construction to remove the existing striping. Hence, K.C. Construction had no contractual duty to remove the existing striping apart from its duty to grind and resurface the road. K.C. Construction also had no express contractual duty to provide temporary striping.
Change Order. Under a change order issued by the County Engineer in June 2000, the work on Sprague was extended from Dishman westward to Thierman Road. The change order required K.C. Construction to remove the center islands and patch the existing asphalt where the islands had been removed. In the change order, the County assumed responsibility for temporary striping and signal modifications. Specifically, the change order provided:
A. Sprague Avenue, Thierman Road to Dishman Road — 2000 (CRP 2842)
This work consists of removing concrete islands and patching existing asphalt in order to accommodate switching Sprague Avenue to one-way traffic westbound. This work will be accomplished in conjunction with contract work from Dishman Road to University Road at unit prices shown on Attachment `A' as per the enclosed plans and under the contract specifications. NOTE: all work will be accomplished maintaining two-way traffic and providing access to all properties.
County forces will accomplish temporary striping and signal modifications. The contractor will coordinate with the County to provide a safe transition.
Clerk's Papers (CP) at 263 (emphasis added). Delay in Completion of Overlay. The grinding of the westbound lanes, and the overlay of the new surface, including the new permanent striping, was scheduled to occur in the fall of 2000 or the spring of 2001. Due to weather conditions, the County ultimately made the decision to delay work until the spring of 2001.
Opening of the Valley Couplet. On October 11, 2000-17 days before the collision between Mr. Sager's motorcycle and Mr. Bradley's minivan — the County made the decision to open Appleway to eastbound traffic and to close Sprague to eastbound traffic. However, at this time, all five lanes on Sprague were not open as one-way lanes. Because the center traffic islands had not been removed and the County had not yet completed its temporary striping, the County decided that only Sprague's previously-existing westbound lanes would remain open to traffic. At this point then, the portion of Sprague later involved in the Sager-Bradley collision, was operating with only the three northernmost westbound lanes. Consequently, up until October 24 — four days before the collision — the original left-hand turn lane from Sprague onto Dishman was still available for use by westbound motorists.
On October 24, the County restriped Sprague between Argonne and Dishman in order to open all five lanes of Sprague to westbound traffic. In addition to the restriping of the lanes, the County placed two solid barrier lines that diverged and tapered to form a median; thereby preventing traffic from turning left from the former left-hand turn pocket at the intersection of Sprague and Dishman. But after this restriping was completed, the former left-turn stop bar and the channelizing line remained visible on the pavement.
That same day, October 24, the County opened all five lanes of Sprague to westbound traffic.
Following its original design, the County did not place any traffic control devices at the intersection of Sprague and Dishman to prevent left-turn lanes from what was now the middle lane of Sprague. The County also did not place any traffic control devices at the intersection to explain to drivers that left-hand turns were now prohibited from what was now the middle of a one-way street. Instead, the County relied on the knowledge and training of drivers to follow the signs and markings identifying Sprague as a one-way street.
Events on the Day of the Collision. Four days later, on October 28, K.C. Construction returned to provide traffic control for a subcontractor who was to install a new island around the railway overpass between Argonne and Dishman. Two days earlier, K.C. Construction had submitted a Traffic Control Plan (TCP) to the County for this work and the County had approved this plan in concept that same day. This plan provides, in part, that:
1. The traffic control plan submitted has been approved for concept only. The contractor is responsible for determining specific signing and layout as required by the Manual on Uniform Traffic Control Devices, WSDOT specifications, contract specifications and Spokane County Standards.
Washington State Department of Transportation (WSDOT).
2. Spokane County may request changes to the signing as warranted by traffic conditions and motorists behavior.
3. All devices shall conform to the MUTCD and WSDOT specifications.
CP at 418.
Pursuant to the TCP, the middle two lanes were closed to traffic in the construction zone with cones placed by K.C. Construction. There were now a total of four westbound lanes. The scope of the contract work described in the TCP ended before the intersection of Sprague and Dishman, and the TCP did not change or modify the existing traffic control at this intersection. Under the TCP, K.C. Construction was not required to place traffic control devices that would prevent left-hand turns onto Dishman by vehicles traveling in the northernmost lanes of Sprague.
Shortly before the collision, David Hansel, a Spokane County Inspector, arrived on the site and drove through the construction area to ensure that the traffic control plan in use was acceptable. Mr. Hansel concluded that the traffic control plan was consistent with the TCP, and he noted this in his report. After the collision, Mr. Hansel drew a diagram depicting the traffic control and the placement of the traffic cones. The diagram indicates that the cones on the north side were set up in such a way that it was not possible to enter into the former left-turn lane without driving through the cones. This diagram also indicates that the placement of the cones serving the construction zone ended prior to the intersection of Sprague and Dishman.
Summary Judgment. In her complaint, Ms. Sager claimed that both the County and K.C. Construction were liable for the wrongful death of Mr. Sager. She maintained that the County and K.C. Construction had a duty to design, sign, mark, and operate the site of the collision in a safe manner and that these entities breached this duty.
The trial court granted K.C. Construction's motion for summary judgment. The court concluded that the law did not impose a duty on K.C. Construction for the design of the roadway and that there was no evidence indicating that K.C. Construction had failed to perform its work in accordance with the contract plans or the TCP.
After K.C. Construction was dismissed from the suit, Ms. Sager settled with the County and the Bradleys. Ms. Sager now appeals the court's decision to grant summary judgment in favor of K.C. Construction.
ANALYSIS
Standard of Review. When reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998). This court may affirm on any basis supported in the record and the moving party bears the burden of showing the absence of a material issue of fact. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994).
Did K.C. Construction have an independent duty to use ordinary care to remove or repair hazardous conditions in or near the boundaries of the construction zone?
`[A] municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.' Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). Significantly, when a city contracts for improvement upon a street, and the contractor performs the work in accordance with the plans and specifications of the city, the contractor is not liable for damages in the absence of negligence. Muskatell v. Queen City Constr. Co., 3 Wn.2d 200, 202, 100 P.2d 380 (1940).
Ms. Sager contends that K.C. Construction had an independent duty to reasonably anticipate dangerous conditions and to guard against them. In making this argument, Ms. Sager is stating only part of the rule. Washington cases, even those relied on by Ms. Sager, consistently provide that a contractor's liability is limited to those acts of negligence arising from work performed pursuant to the contract. See Graham v. Concord Constr., Inc., 100 Wn. App. 851, 855, 999 P.2d 1264 (2000); Palin v. Gen. Constr. Co., 47 Wn.2d 246, 251, 287 P.2d 325 (1955). In other words, a contractor is not liable for damages in the performance of the work under the contract if the contractor performs in accordance with government plans and specifications. Graham, 100 Wn. App. at 855. Ordinarily, a contractor has no liability for damages caused by conditions that are beyond the scope of the contract. The rationale for this rule is that the duty to keep roadways reasonably safe resides with the governmental entity.
Responsibilities under the Contract with the County. To resolve the issue here, we must examine the terms of the agreements between the County and K.C. Construction to determine the scope of K.C. Construction's work. Under the original contract, the roadway plan called for the grinding of the overlay on all five westbound lanes; this job would result in the removal of the existing pavement markings and the placement of permanent striping on the new surface. The contract initially assigned responsibility for this work to K.C. Construction according to the contract plans and specifications provided by the County. Because the plan called for a complete overlay of the old surface — resulting in a completely new surface — the plan did not expressly require the removal of the existing striping. Hence, under the original contract K.C. Construction had no duty to remove the old striping if the grinding and overlay work was delayed. Ms. Sager suggests that K.C. Construction had a contractual duty to provide temporary striping as part of its duty to keep the roads safe and to remove any hazard caused by construction work performed as part of the project. Ms. Sager points to provisions in the underlying contract requiring K.C. Construction to `maintain existing roads and streets,' keeping them open and in `good, clean, safe condition at all times.' CP at 117.
But another provision requires K.C. Construction to `[m]aintain the striping,' and to `renew striping, subject to the approval of the Engineer.' CP at 117. Significantly, the underlying contract provided that: `When the scope of the project does not require work on the roadway, the [County] will be responsible for maintaining the striping.' CP at 117. Moreover, even if we assume that K.C. Construction was initially responsible for new striping before the grinding work was completed, these obligations changed as a result of the County's change order. After weather conditions caused the County to revise its plans — and reschedule the grinding and overlay process to the spring of 2001 — the change order provided that K.C. Construction would be responsible at that later date for the road construction and the placement of permanent striping. Equally important, the County also made the decision to reopen Sprague as a five — lane, one-way street even though the work had been rescheduled.
Significantly, under the change order, the County assumed the duty to provide temporary striping. In contrast, the TCP did not require K.C. Construction to remove the old striping in the interim. While the TCP was `approved for concept only,' the diagram attached to the document states the work to be performed by K.C. Construction ended before the intersection of Sprague and Dishman. Moreover, under the TCP, the County did not require K.C. Construction (1) to place signs beyond the construction zone that would restrict lanes, or (2) to remark the old left-turn lane at the intersection of Sprague and Dishman. As a result, any deficiency in the striping for the left-turn lane was the responsibility of the County, not K.C. Construction.
Given these facts, it is difficult to see how K.C. Construction had the authority, or any contractual obligation, to place striping from the end of the construction zone to the intersection of Sprague and Dishman.
Effect of Agreement to Comply with MUTCD Standards. The MUTCD provides the legal standards for street and highway traffic control devices and their placement in Washington. RCW 47.36.020. Washington cases uniformly acknowledge that MUTCD standards may provide evidence of negligence. Ottis Holwegner Trucking v. Moser, 72 Wn. App. 114, 122, 863 P.2d 609 (1993). However, while the manual provides standards for design and application of devices, the manual places responsibility on the engineers to decide which signs to erect. Kitt v. Yakima County, 23 Wn. App. 548, 552, 596 P.2d 314 (1979), rev'd on other grounds, 93 Wn.2d 670, 611 P.2d 1234 (1980).
Because the TCP required K.C. Construction to comply with MUTCD standards, Ms. Sager maintains that K.C. Construction's duty is defined by these standards and, also, that these standards required K.C. Construction to exercise ordinary care when constructing and maintaining the entire construction area. According to Ms. Sager, whenever a contractor agrees to comply with the MUTCD, the contractor assumes the government's duty to build and maintain its roadways in a reasonably safe condition.
Ms. Sager also contends that K.C. Construction had a duty to place signage at the old left-turn lane because the TCP required K.C. Construction's work to conform to MUTCD and WSDOT specifications. She points out that the TCP requires that: `All devices shall conform to the MUTCD and WSDOT specifications.' CP at 418. In other words, any devices installed in relation to the work required by K.C. Construction must conform to MUTCD and WSDOT standards.
But a careful reading of the MUTCD requirements does not lend itself to the conclusions reached by Ms. Sager. For example, the first section relied on by Ms. Sager states, in part:
The responsibility for the design, placement, operation, and maintenance of traffic control devices rests with the governmental body or official having jurisdiction. Therefore, traffic control devices shall be maintained and shall not be removed or altered in any way without the authorization of the governmental body having jurisdiction. The provisions for public, pedestrian and worker protection established herein are for application by (1) State highway department, county, and municipal forces performing construction or maintenance operations on roads and streets, (2) contractors employed in road or street construction or maintenance under contract to any governmental authority. . . .
CP at 198 (emphasis added).
This provision indicates that the governmental body is responsible for traffic control devices and that a governmental entity — or a contractor performing construction or maintenance — is responsible for the protection of the public, pedestrians, or workers. Significantly, traffic control devices are defined in the Introduction of the MUTCD as `all signs, signals, markings, and devices placed on, over, or adjacent to a street or highway by authority of a public body or official having jurisdiction to regulate, warn, or guide traffic.' CP at 190.
Ms. Sager also relies on section 6A-5, which sets forth the fundamental principles of the MUTCD. For example, Ms. Sager points to section 6A-5(1) which states that: `Traffic safety in construction zones should be an integral and high priority element of every project from planning through design and construction.' CP at 199. She also relies on section 6A-5(1)(a), which reads, in part: `The goal should be to route traffic through such [construction] areas with geometrics and traffic control devices as nearly as possible comparable to those for normal highway situations.' CP at 199 (emphasis added).
While the MUTCD provisions establish the importance of traffic safety, this particular provision does not assign responsibility for traffic safety in an area beyond the construction area, especially where the governmental entity has assumed the role of performing temporary striping. In fact, the language of 6A-5(3) appears to suggest that duty in construction, maintenance, and utility zones does not extend past the end of the zone. This section provides: `Motorists should be guided in a clear and positive manner while approaching and traversing construction, maintenance, and utility work areas and incident sites.' CP at 200 (emphasis added).
Ms. Sager also relies on section 6A-5(3)(b), which states that: `In long-term work areas, permanent pavement markings which are inconsistent with temporary travel paths should be removed. For short-term operations, existing markings may be left in place, unless doing so would result in a definite hazard. Where markings inconsistent with temporary travel paths are retained, special attention should be given to highlighting the intended paths with other traffic control devices.' CP at 200.
Again, these standards do not redefine or extend the duties assigned under the agreements between the County and K.C. Construction. Also, it is unclear how K.C. Construction had any responsibility for traffic control in an area outside the construction zone created by the change order. Moreover, because the original agreement required K.C. Construction to remove the original striping by grinding off the top layer of pavement, the County retained any responsibility for the removal of the striping before the spring of 2001, pursuant to the change order.
Accordingly, despite Ms. Sager's assertion, there is no question of material fact as to whether K.C. Construction fulfilled its contractual obligations and whether K.C. Construction complied with applicable MUTCD standards.
Do MUTCD Standards Impose a General Duty of Care? Ms. Sager next argues the MUTCD standards imposed a general duty of care requiring K.C. Construction to remedy any confusion resulting from its construction duties under the change order. In other words, Ms. Sager argues that K.C. Construction was negligent because the workers did not notice, and remedy, a traffic problem beyond the boundaries of the work zone.
This argument might have enough merit to go to a jury if the traffic problem in question was caused exclusively by the construction work. But the traffic problem here was caused by the County's decisions to delay the major road work until the spring of 2001, and to open all lanes for one-way traffic during the preceding fall and winter. The County, not K.C. Construction, had the duty to exercise care in the construction, design, and maintenance of public roads and streets and to keep them in a reasonably safe condition for ordinary travel. See Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002).
Moreover, the cases relied upon by Ms. Sager to support her position that failure to comply with the MUTCD constitutes evidence of negligence on the part of a contractor all involved claims against a governmental entity. See Kitt v. Yakima County, 93 Wn.2d 670, 611 P.2d 1234 (1980); Ottis Holwegner Trucking v. Moser, 72 Wn. App. 114, 863 P.2d 609 (1993); Wojcik v. Chrysler Corp., 50 Wn. App. 849, 751 P.2d 854 (1988). In fact, cases from other jurisdictions indicate that the MUTCD does not impose a duty to exercise reasonable care beyond those required in the plans provided by the governmental entity. See Jordan v. Jerry D. Sweetser, Inc., 64 Ark. App. 58, 977 S.W.2d 244 (1998); McCoy v. Hollywood Quarries, Inc., 544 So. 2d 274 (Fla.Dist.Ct.App. 1989). In any event, based on Washington case law, we see no need to take the novel approach of extending K.C. Construction's duties under the MUTCD to areas beyond the construction zone and beyond the scope of the work required by the County.
Ms. Sager maintains that the duty of ordinary care includes the duty of erecting and maintaining proper warning signs. To support this argument, she relies on Provins v. Bevis, 70 Wn.2d 131, 422 P.2d 505 (1967); Ulve v. City of Raymond, 51 Wn.2d 241, 317 P.2d 908 (1957); and Bradshaw v. City of Seattle, 43 Wn.2d 766, 264 P.2d 265 (1953). Again, these cases involved the duty owed by a governmental entity and applied the rule that a county or municipality has the responsibility to post adequate and appropriate warning signs when required by law or when the governmental entity has actual or constructive notice that the situation was inherently dangerous or of a character that would mislead a traveler exercising reasonable care. Provins, 70 Wn.2d at 138; Ulve, 51 Wn.2d at 252; Bradshaw, 43 Wn.2d at 775.
Duty of Ordinary Care Imposed by the Original Contract. Ms. Sager argues that K.C. Construction retained the duty to exercise ordinary care as the result of the provisions of the original contract and that this responsibility was not affected by the change order. She relies on section 1-07.23(1)(1) of the change order, which requires K.C. Construction to: `Remove or repair any condition resulting from the work that might impede traffic or create a hazard.' CP at 117.
First, this provision applies only to those conditions caused by the work. Here, the problem with the striping in the left-turn lane was caused by a design defect resulting from the County's decision to delay K.C. Construction's grinding work — and the permanent striping — until the spring. Second, the underlying contract also requires K.C. Construction to maintain the existing permanent signing and to: Maintain the striping on the roadway at the Contracting Agency's expense. The Contractor shall be responsible for scheduling when to renew striping, subject to the approval of the Engineer. When the scope of the project does not require work on the roadway, the Contracting Agency will be responsible for maintaining the striping.
CP at 117 (emphasis added).
Indeed, Ms. Sager cites no authority indicating that K.C. Construction had the authority to remove the original striping in the left-turn lane — which was located outside the construction zone — without the consent of the County engineer.
Ms. Sager also maintains that the problems caused by the marking at the intersection were not caused by a design defect, but, instead, by the shadow.
K.C. Construction caused when it removed the raised center lane. Ms. Sager contends that this shadow was not part of the County's road design. This argument might be persuasive under different facts; but, here, the County required K.C. Construction to remove the raised center lane and the County retained the duty to provide temporary striping.
Did the court err by granting summary judgment when there were material questions of fact that must be resolved by a jury?
Ms. Sager contends there are material issues of fact that must be resolved by a jury. She asserts that the placement of the traffic cones was material to the outcome because there was evidence from both lay and expert witnesses that the striping and marking on Sprague between Argonne and Dishman were confusing to motorists. Ms. Sager also maintains that K.C. Construction failed to place other temporary traffic control devices indicating that left-hand turns were prohibited and that the pathway being highlighted by the cones funneled the traffic into the left-hand turn lane. There are no questions of material fact that must be resolved by a jury.
First, there is no question of fact as to the scope of the construction work required of K.C. Construction under the change order. Second, the County made the decision to open all lanes of traffic on Sprague to one-way traffic, while delaying the grinding and overlay work until the spring. Ms. Sager also argues that there was substantial evidence establishing K.C. Construction's independent and concurrent negligence. We have already determined that K.C. Construction had no independent duty to remedy the problem with the old left-turn lane and, hence, has no concurrent liability with the County.
We affirm the judgment of the trial court.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SCHULTHEIS, J., Concur.