Opinion
No. 61975-6-I.
September 21, 2009.
Appeal from the Superior Court, Snohomish County, No. 05-2-06228-1, Ellen J. Fair, J., entered May 4, 2007.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Grosse and Leach, JJ.
A car traveling through a two-lane construction zone on the Mukilteo Speedway, State Route 525 (SR 525), crossed the center line and hit a Shuttle Express van head-on killing the driver of the car. The occupants of the van, Shanita S. Williams-Porchia and John E. Salters (collectively Williams-Porchia), sued the driver's estate, the Washington State Department of Transportation (WSDOT), and Wilder Construction Company for negligence. The trial court granted Wilder's motion for summary judgment and dismissed the claims against Wilder. Because there are material issues of fact as to whether Wilder was negligent, we reverse and remand for trial.
Williams-Porchia resolved the claims against WSOT before the court's summary judgment ruling.
FACTS
In April 2001, Wilder Construction Company entered into a contract with the WSDOT to widen and expand 1.8 miles of SR 525. The construction took place on the west side of the existing two-lane roadway. Wilder placed temporary "Jersey" barriers between the work area and the west side of the roadway.
The contract between the WSDOT and Wilder requires Wilder to perform all work in accordance with the WSDOT Standard Specifications for Road, Bridge and Municipal Construction (2000 ed.) (Standard Specifications). The contract provides in part:
The Contractor shall do all work and furnish all tools, materials, and equipment for: . . . concrete barrier, pavement markings, permanent signing . . . in accordance with and as described in the attached plans and specifications, and the standard specifications of the Washington State Department of Transportation which are by this reference incorporated herein and made part hereof and, shall perform any changes in the work in accord with the Contract Documents.
Under Standard Specifications 1-07.23 (1), Wilder has a duty to "maintain existing roads and streets within the project limits, keeping them open, and in good, clean, safe condition at all times." The contract between WSDOT and Wilder also provides that Wilder is responsible for concrete barriers, pavement markings, and permanent markings.
The February 6, 2002 head-on collision was the third fatal accident at the project site. On November 1, 2001, a head-on collision involving a driver with a blood alcohol level of .11 resulted in a fatality. On February 2, a driver crossed the centerline, passing multiple cars and colliding head-on with an oncoming car.
At approximately 1:15 a.m. on February 6, 2002, Nikolas Mount was driving north on SR 525. Shanita Williams-Porchia and John Salters were in a Shuttle Express van traveling south. The posted speed limit was 60 miles per hour. Mount drove into the southbound lane to pass a car. Mount was driving at 60 to 70 miles per hour and remained in the southbound lane for 50 to 100 yards after passing the car. Witnesses said there was space to return to the northbound lane, but Mount did not move back into the lane or slow down.
The driver of the Shuttle Express saw the approaching car's headlights and slowed down to 40 to 45 miles per hour, but the Jersey prevented moving to the shoulder of the highway. Mount's car hit the Shuttle Express van head-on. The van spun around and landed sideways on the road. Another car then hit the van. Mount died. Williams-Porchia and Salters were seriously injured. According to the toxicology report, Mount's blood alcohol level was .21.
Williams-Porchia and Salters (collectively, Williams-Porchia) sued Mount's estate, the WSDOT, and Wilder for negligence. Williams-Porchia alleged that Wilder negligently failed to provide adequate signage and warnings and failed to provide a safe roadway for drivers:
Williams-Porchia also sued Shuttle Express, Inc, Delicor of Puget Sound, Inc., and Travelers Casualty Surety Co.
2.14 Defendant Wilder, as defendant State's general contractor for this construction zone, failed to provide adequate signage and warning for oncoming traffic regarding the narrowing of lanes, speed, and lack of lighting in this construction zone.
2.15 Defendant Wilder failed to provide a safe roadway and particularly failed to reduce the posted speed limit so as to be safe, consistent with the circumstances of the construction then being undertaken.
2.16 Defendant Wilder additionally failed to provide for safe separation of traffic and otherwise failed to provide for the safe passage of traffic within this construction zone.
The complaint also alleged that as a result of the collision, Williams-Porchia and Salters sustained serious injuries. Williams-Porchia sought an award of medical costs and expenses, loss of earnings and impairment of earning capacity, and general damages.
Wilder filed a motion for summary judgment asserting that the contract with the WSDOT did not create a duty beyond the duty to exercise ordinary care in conformance with the contract's plans and specifications. Wilder argued that the government contractor immunity doctrine barred the lawsuit against Wilder. The WSDOT argued the court "should deny Defendant Wilder's Motion for Summary Judgment, because there are genuine issues of material fact regarding Wilder's negligence that should be decided by a jury." The WSDOT also argued that there were material issues of fact as to whether Wilder followed the contract requirements to maintain the striping and remove the temporary Jersey barriers when they were no longer needed. The court granted Wilder's motion for summary judgment and dismissed the lawsuit.
At oral argument on summary judgment, Williams-Porchia stated that claims against the State were resolved and the WSDOT is no longer a party to the lawsuit.
ANALYSIS
Williams-Porchia asserts the trial court erred in dismissing her lawsuit on summary judgment because there are material issues of fact. Specifically, Williams-Porchia contends there are material issues of fact about whether Wilder negligently failed to keep the roadway clear of sand and gravel, restripe SR 525, and remove the temporary Jersey barrier following the installation of the permanent barrier.
Wilder admits it has a duty to exercise ordinary care in maintaining the roadway in a condition that is reasonably safe for travel. But Wilder contends that it cannot be liable absent an independent showing of negligence. Wilder asserts that it is not negligent because it followed WSDOT's plans and specifications in compliance with the contract and the WSDOT was responsible to restripe SR 525.
Below and on appeal, Wilder relies on the doctrine of government contractor immunity and Graham v. Concord Const., Inc., 100 Wn. App. 851, 855, 999 P.2d 1264 (2000), to argue that it is not liable. Under RCW 4.92.090, the State is liable for damages arising out of its tortious conduct. Because the State has waived immunity under RCW 4.92.090, we question the continuing viability of the doctrine of government contractor immunity. In any case, the doctrine does not affect our analysis. We focus solely on the question of whether there are material issues of fact as to Wilder's allegedly independent negligence.
We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). Summary judgment is only proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing summary judgment, we consider supporting affidavits and other admissible evidence based on personal knowledge. Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004). The moving party bears the burden of proving there are no genuine issues of material fact. CR 56(c); Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 863, 147 P.3d 600 (2006), rev. denied, 161 Wn.2d 1011, 166 P.3d 1217 (2007). "A material fact is one of such nature that it affects the outcome of the litigation." Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). We view the facts and reasonable inferences in a light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is appropriate if in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
To prove negligence, Williams-Porchia must establish (1) a duty, (2) breach, (3) resulting injury, and (4) proximate cause. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).
There is no dispute that the State has a duty to maintain its roadways. In Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002), the court held that "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."
Under the terms of the contract, specifically Standard Specifications 1-07.13 (1), Wilder is liable for any damage resulting from the contractor's operations or negligence. Thus, the question is whether there are material issues of fact about whether Wilder was negligent in performing its duties under the contract with the WSDOT by failing to maintain the roadway in a condition that was reasonably safe for ordinary travel. Wilder asserts that it complied with the WDSOT plans and specifications, and that it had no duty to repair temporary traffic control markings or to sweep the roadway. Wilder also asserts that temporary barriers did nothing to alter the existing lanes of SR-525, and it had no responsibility for restriping or the condition of the preexisting roadway.
"Section 1-07.13(1) of the WSDOT Standard Specifications states:
The Contractor shall rebuild, repaid, store, and make good all damages to any portion of the permanent or temporary work occurring before the physical completion date and shall bear all the expense of doing so, except damage to the permanent work caused by [exceptions that don't apply here] . . . Nothing contained in this section shall be construed as relieving the Contractor of responsibility for, or damage resulting from, the Contractor's operations or negligence. (Emphasis added).
Williams-Porchia asserts that Wilder breached its duty to maintain the roadway by negligently failing to keep SR-525 clear of sand and gravel from construction which caused the roadway markings to fade. Under the Standard Specifications, Wilder has a duty to "maintain existing roads and streets within the project limits, keeping them open, and in good, clean, safe condition at all times." The Standard Specifications also provide that the contractor shall "[m]aintain 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."
On February 4, 2002, Nabil Hamedeh, the WSDOT project engineer, wrote an e-mail to Chuck Smith, the WSDOT chief inspector for the project, saying that in light of the recent accidents, "I believe we should have double solid yellow stripes at that location." On February 5, Smith sent an e-mail to other WSDOT employees stating, "After talking with Wilder, they would prefer to have Maintenance perform the work of re-striping the existing portion of SR 525. . . . It also appears that we may need to have the sweeper come in and remove the sand prior to restriping. . . . I can have either Wilder or maintenance accomplish this." Vince Kientz, who worked in the State Traffic Office, responded, "Our striping machine just came off the rack (winter maintenance) and it will take several days to one week to check out the equipment and get it ready for this year's striping season."
In his deposition, Williams-Porchia's expert witness Thomas G. Shultz, stated that there was "a great amount of sand and gravel on the southbound shoulder between the edge line and the temporary concrete barrier . . . [and] that material is extremely abrasive and will cause rapid deterioration of the quality of any striping." Schultz testified that, "On a more probable than not basis, the likely source of the presence of sand and/or gravel on the roadway near the accident site would be the result of Wilder['s] trucks entering and leaving the roadway and from Wilder's nearby excavation and construction activities — to include sub-contractors entering and leaving the roadway."
Chuck Smith, the WSDOT chief inspector for the project testified that, "Wilder had responsibility for public highway safety in the area of the work project according to 1-07.23(1)." Smith added, "Wilder was responsible for double striping at the accident scene, as well as restriping any faded lines." In addition, Smith stated that "the striping was faded at the scene of the accident." Smith testified that WSDOT put Wilder on notice that the double striping was necessary and said, "both the double striping and restriping of existing faded lines, could have been accomplished by Wilder before the date of the accident on February 6, 2002."
Schultz testified that "Wilder Construction company failed to comply with the Contract by not having a striping company or a striper available, i.e. to have appropriate personnel, equipment, and material available at all times, in order to expeditiously correct the striping in the traffic control system." Shultz also testified that SR-525 should have been clearly striped and "the center line striping should have been for no passing from the first day of construction given the fact that the plans call for the placement of a substantial roadside obstacles within three feet of moving traffic."
John Logan, a transportation consultant on highway safety, also cited Standard Specifications 1-07.23(1) to testify that "Wilder violated its contractual duties by not painting the double yellow stripe before the subject accident occurred." Mark P. Leth, the Northwest Regional Traffic Engineer for WSDOT, stated in his deposition the contractor was responsible for maintaining the work zone:
A. Within the work zone, the contractor is responsible for the traffic control devices, installing them, maintaining them per plan.
Q. And what do you mean by "traffic control devices"?
A. Traffic control devices include signing, striping, traffic signals if they had those. Unless other arrangements were made, but, typically, in particular, signing, striping, the contractor has that responsibility.
Wilder argues that it was not responsible for the traffic control devices because they were not within its work zone. Wilder is correct that if there is no impact to SR 525 related to the new construction, WSDOT retains responsibility for striping under Standard Specifications 1-07.23(1). But according to Wilder's own expert Rod Majors, Wilder hauled loads and would use sweepers on the existing roadway. The WSDOT chief inspector, Smith, also testified that he was "familiar with the job site, the roadway in the area of the project, where the accident occurred" and that "Wilder was responsible for double striping at the accident scene, as well as restriping any faded lines."
"When the scope of the project does not require work on the roadway, the Contracting Agency will be responsible for maintaining the striping." Standard Specifications 1-07.23(1).
Williams-Porchia also contends there are material issues of fact regarding whether Wilder was negligent in failing to remove the temporary barriers following the installation of permanent barriers. According to Standard Specifications 6-10.3(5), "'As soon as the temporary barrier is no longer needed, the Contractor shall remove it from the project.'" In his declaration, Smith testified that the permanent barrier was in place as of January 25, 2002. Smith stated, "If the temporary barriers had been removed, shoulder widths of approximately 4 feet would have been present on the day of the accident. This would have given more room for vehicles to pull to the right and avoid oncoming traffic."
Viewing the evidence in the light most favorable to Williams-Porchia, we conclude that there are material issues of fact as to whether the portion of the roadway that needed to be re-striped was Wilder's responsibility. There are also material issues of fact as to whether Wilder breached its duty to maintain the roadway in a condition safe for travel by negligently failing to keep the roadway clear of gravel and removal of the temporary barrier. We reverse summary judgment dismissal of Williams-Porchia's claims against Wilder and remand for trial.
WE CONCUR.