Roadway Contractor Owed Duty of Care to Driver Injured Outside of Construction Zone

For the roadway contractor it appeared to be an open and shut case:

Plaintiff car driver was stopped at a standard one-way “reversing lane closure” traffic control in which traffic going in one direction would be stopped while traffic going in the other direction was allowed to proceed, and then the procedure would be reversed.

Plaintiff, while stopped at the traffic control, was rear-ended by another vehicle driven by George Smithson. Smithson testified that he “must have looked off to the side” at some point prior to the collision because he did not see plaintiff’s vehicle before hitting it. He also testified that the primary reason the accident happened was that he was not paying attention and that he knew of no other cause of the accident.

For the roadway contractor you couldn’t ask for a better admission. And it ended in the trial court just the way you thought it would, with a win for the roadway contractor. That is, until it was appealed.

Shipp. v. Western Engineering, Inc.

In Shipp v. Western Engineering, Inc. (2020) 55 Cal.App.5th 476, roadway contractor Western Engineering, Inc.  was sued by Kevin Shipp who was rear-ended by George Smithson while Shipp was stopped at a traffic control stop managed by Western.

The roadway work was being performed on Latrobe Road in El Dorado County. Western had implemented a “reverse lane closure” traffic control. A flagger controlling northbound traffic was positioned at the south end of the reversing lane closure on Latrobe Road, north of where it intersected with Ryan Ranch Road. Because the flagger was positioned north of the intersection, when the flagger stopped northbound traffic, that traffic could back up, extending south into the intersection.

Shipp was driving south on Latrobe Road when he came to a stop behind two other vehicles. The vehicle two cars ahead of Shipp was attempting to turn left onto Ryan Ranch Road, but it could not do so because northbound traffic, stopped by the flagger at the south end of the reversing lane closure, was stopped in the intersection. Seconds after Shipp stopped, a vehicle driven by Smithson rear ended Shipp’s car.

Shipp and his wife filed suit against various defendants including Western and certain of Western’s employees against whom they asserted causes of action for negligence and loss of consortium. While the case was pending, Smithson testified in deposition that he struck Shipp’s car “due to inattentiveness, and not because of anything that distracted him as he was driving through the construction zone.” He also stated in deposition that there “wasn’t anything related to any construction work that he felt contributed to his running into the back of [plaintiff’s] vehicle.” You can almost imagine the silently whispered, “yes!!!,” by Western’s counsel upon hearing this testimony.

Following the deposition, Western filed a motion for summary judgment asserting that it owed no duty of care to Shipp whose accident occurred after the traffic control. Western further argued that they did not create any hazard causing the collision, that the reverse lane closure traffic control was in conformity with the general duty of care Western owed to motorists, and that it was Smithson’s admitted inattentiveness that was the sole proximate cause of Shipp’s injuries arising from the accident.

The trial court granted Western’s motion for summary judgment, concluding that Shipp could not establish duty, breach, or causation to support his negligence cause of action, and that because the negligence claim failed, so too did his wife’s loss of consortium claim. In short, plaintiff was Shipp out of luck.

Plaintiff, however, appealed.

The Appeal

On appeal, the 3rd District Court of Appeal explained that every person owes every other person a general duty of care “to exercises, in his or her activities, reasonable care for the safety of others” under Civil Code section 1714. Thus, explained the Court of Appeal, as it pertains to highway contractors “[a] highway contractor doing work on a public highway or street owes to the traveling public the duty of protecting it from injury that may result from [the contractor’s] negligence” and it can extend beyond the area where work is being physically performed:

A highway contractor doing work on a public highway or street owes to the traveling public the duty of protecting it from injury that may result from [the contractor’s] negligence. [The contractor] is under a duty, for instance, to warn travelers of existing hazards during the construction period by the placing of lights, guards, warning signs, and barriers….” … [T]his duty applies even when the contractor has performed [the] work properly and the hazard is created by conditions immediately adjacent to the roadway upon which the contractor worked. The contractor’s responsibility [is] not limited to dangerous conditions within the scope of [the contractor’s] own work while [the contractor] [is] in control of the job site. [The contractor] [is] under a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions.

Thus, explained the Court of Appeal, whether the accident occurred within the “construction zone” is not the relevant question. Rather, the question was whether Western should have positioned its flagger stopping northbound traffic before Ryan Ranch Road, or had an additional flagger positions at Ryan Ranch Road, so that traffic stopped by the northbound flagger would not block cars attempting to turn left onto Ryan Ranch Road.

However, explained the Court of Appeal, there are several policy considerations courts consider when determining whether an exception should be made to the general duty of care:

1. The foreseeability of harm to the plaintiff;
2. The degree of certainty that the plaintiff suffered injury;
3. The closeness of connection between the defendant’s conduct and the injury suffered;
4. The moral blame attached to the defendant’s conduct;
5. The policy of preventing future harm;
6. The event of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
7. The availability, cost, and prevalence of insurance for the risk involved.

Considering each of these factors in turn, the Court of Appeal held that no exception to the general duty of care should be made for Western, relying primarily on Western’s knowledge and experience as a highway contractor, and that based on that knowledge and experience, Western knew or should have known that by placing the northbound flagger where it did that it could potentially cause a backup if car proceeding southbound was attempting to turn left onto Ryan Ranch Road.

Conclusion

So there you have it. Our first case in the new year. It may not be in your contract, no one may have told you so, and you may not have even been aware of it, but everyone (including contractors) owe a general duty of care to conduct its activities in a safe manner. Be safe out there in 2021!