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Pavik v. George & Lynch, Inc.

Supreme Court of Delaware

March 23, 2018

JENNIFER PAVIK, DOUGLAS TODD PAVIK, and ASHLEE JEAN REED, Plaintiffs Below, Appellants,
v.
GEORGE & LYNCH, INC., a Delaware corporation, and GEORGE & LYNCH TRUCKING, LLC, a Delaware Limited Liability Company, Defendants Below, Appellees.

          Submitted: January 10, 2018

          Court Below: Superior Court of the State of Delaware C.A. Nos. S14C-01-006, S14C-04-005

         Upon appeal from the Superior Court. REVERSED AND REMANDED.

          Chase T. Brockstedt, Esquire, (argued), Lewes, Delaware, Stephen A. Spence, Esquire, Lewes, Delaware, Vincent A. Bifferato, Jr., Esquire, Wilmington, Delaware, and Roger D. Landon, Wilmington, Delaware, for Appellants.

          Louis J. Rizzo, Jr., Esquire, (argued), Wilmington, Delaware for Appellees.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

          VAUGHN, Justice, for the Majority

         I.

         This appeal involves a single-vehicle accident that occurred on Omar Road in Sussex County. Ashlee Reed was the driver of the vehicle, and Jacqueline Pavik was her passenger. Reed was injured in the accident. Pavik died from injuries she received. At the time, Omar Road was undergoing reconstruction. The accident occurred on a Sunday night when no construction was taking place and the road was open to the public. Reed and Pavik's parents allege that the accident was caused by an unsafe road condition known as raveling, which was a byproduct of the road reconstruction. Raveling, they claim, caused Reed to lose control of her vehicle and crash into trees off the roadway. George & Lynch, Inc. (George & Lynch) was the general contractor in charge of construction. Reed and Pavik's parents brought suit against a number of entities, but this appeal involves only George & Lynch. Among the claims they assert against George & Lynch is a claim that George & Lynch was negligent for failing to place adequate temporary traffic control signs or devices warning the public of road conditions. The Superior Court granted summary judgment in favor of George & Lynch, holding that it had no duty to post temporary traffic control signs or devices warning about the condition of the road on the weekend the accident occurred, regardless of whether it anticipated that raveling would occur because of a predicted storm over the upcoming weekend. The Superior Court also held that certain repair work that the Delaware Department of Transportation (DelDOT) performed on Omar Road on the day of the accident broke any causal link between George & Lynch's alleged negligence and the accident. The question on appeal is whether the Superior Court's summary judgment analysis was legally correct. We have concluded that it was not and that the judgment of the Superior Court must be reversed.

         II.

         The State of Delaware and DelDOT entered into a contract with George & Lynch to repave a number of roads in Sussex County, including Omar Road. It was agreed that a paving process known as cold in-place recycling (CIPR) would be used.[1] CIPR is a method of removing and reusing the existing surface. It involves removing roughly two to five inches off the top of the existing asphalt surface, mixing that crushed asphalt with a binding agent, and then reapplying it as a recycled base layer. Paving rollers then compact the reused asphalt into place. Finally, an overlay-either a sealant or a thin layer of fresh asphalt-is placed on top of the recycled material. The overlay process cannot take place until the recycled asphalt has cured, which takes approximately one week. During this one-week curing period, the road surface is in an unfinished condition, but the road may be re-opened to traffic before the final coat is applied.

         The contract between the State and George & Lynch included a section titled "Maintenance of Traffic." It provided, in pertinent part:

This item shall consist of furnishing, installing, maintaining and/or relocating the necessary temporary traffic control devices used to maintain vehicular, bicycle and pedestrian traffic . . . . All work shall be performed in a manner that will provide reasonably safe passage with the least practicable obstruction to all users, including vehicular, bicycle and pedestrian traffic.
All requirements of the Delaware Manual on Uniform Traffic Control Devices (MUTCD), Part 6, herein referred to as the Delaware MUTCD . . . shall apply for all temporary traffic control devices. Any, and all, control, direction, management and maintenance of traffic shall be performed in accordance with the requirements of the Delaware MUTCD, notes on the Plans, this specification, and as directed by the Engineer.
The Contractor shall be aware that the Case Diagrams and safety measures outlined in the Delaware MUTCD are for common construction situations and modifications may be warranted based on the complexity of the job. The Contractor shall submit justification for modifications to the Temporary Traffic Control Plan (TTCP) to the Engineer for approval prior to implementation.
. . . The Contractor shall submit a Temporary Traffic Control Plan (TTCP) . . . at or prior to the pre-construction meeting. . . .
. . . [T]he Contractor shall be required to have an American Traffic Safety Services Association (ATSSA) certified Traffic Control Supervisor on the project. The authorized designee must be assigned adequate authority, by the Contractor, to ensure compliance with the requirements of the Delaware MUTCD and provide remedial action when deemed necessary by the Traffic Safety Engineer or the District Safety Officer. The ATSSA certified Traffic Control Supervisor's sole responsibility shall be the maintenance of traffic throughout the project. This responsibility shall include, but is not limited to, the installation, operations, maintenance and service of temporary traffic control devices. Also required is the daily maintenance of a log to record maintenance of traffic activities, i.e., number and location of temporary traffic control devices; and times of installation, changes and repairs to temporary traffic control devices. The ATTSA [sic] Traffic Control Supervisor shall serve as the liaison with the Engineer concerning the Contractor's maintenance of traffic.[2]

         Other parts of the contract addressed other matters, such as public safety and traffic control:

104.09 Maintaining Traffic. . . . The Contractor shall keep the section of the Project being used by public traffic in a condition that safely and adequately accommodates traffic. The Contractor shall furnish, erect, and maintain barricades, drums, warning signs, delineators, striping, and flaggers, in accordance [with] the Traffic Control Manual.[3]
104.14 Contractor's Responsibility for Work. Until the Contractor has achieved substantial completion, the Contractor shall have the sole and absolute responsibility for the work and to provide for the protection and safety of . . . members of the general public.[4]
[Note] 7: All work shall be performed in a manner that will reasonably provide the least practicable obstruction to all road users, including vehicular, pedestrian and bicycle traffic, and shall conform to the requirements of the 2011 Delaware Manual on Uniform Traffic Control Devices, Part 6, including all revisions up to the date of advertisement for bids.[5]

         Provisions pertinent to warning signs found in the Delaware Manual on Uniform Traffic Control Devices (DeMUTCD) include the following:

Section 2C.01 . . . Warning signs call attention to unexpected conditions on or adjacent to a highway, street, or private roads open to public travel . . . that might call for a reduction of speed or an action in the interest of safety and efficient traffic operations.
Section 2C.02 . . . 01 The use of warning signs shall be based on an engineering study or on engineering judgment.
Guidance:
02 The use of warning signs should be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all signs.[6]
Section 6A.01 . . . 07 No one set of [temporary traffic control (TTC)] devices can satisfy all conditions for a given project or incident. At the same time, defining details that would be adequate to cover all applications is not practical. Instead, Part 6 displays typical
applications that depict common applications of TTC devices. The TTC selected for each situation depends on [the] type of highway, road user conditions, duration of operation, physical constraints, and the nearness of the work space or incident management activity to road users.[7]
Section 6F.47 . . . Special warning signs may be used based on engineering judgment. Guidance: Special warning signs should conform to the general requirements of color, shape, and alphabet size and series. The sign message should be brief, legible, and clear.[8]

         The contract also contained provisions which discussed the relationship between DelDOT and George & Lynch:

105.01Authority of the Engineer. The Engineer [i.e., DelDOT] is the administrator of the Contract and not a supervisor of the work. . . .
105.02Authority and Duties of Inspectors. Inspectors, acting under the authority of the Engineer, are administrators of the Contract and not supervisors of the work. . . . The inspector shall in no case act as foreman or perform other duties for the Contractor, nor interfere with the management of the work by the latter.[9]

         As required by the Maintenance of Traffic section of the contract, George & Lynch submitted a traffic control plan to DelDOT prior to the start of construction. The plan George & Lynch chose followed two "case diagrams" from the DeMUTCD: Case 6 and Case 15. Case 6 was supplemented by Figure 6C-1 and Table 6C-1. They provided for certain permanent warning signs, permanent in the sense that they were erected at the beginning of construction and remained in place until the project was completed. The permanent signs, placed at proper intervals, read "ROAD WORK 1500 FT, " "ROAD WORK 1000 FT, " "ROAD WORK 500 FT, " and "END ROAD WORK, " facing each direction and along every side street.

         Case 6 also addressed the use of temporary warning signs for flaggers and for shutting down one lane of a two lane road while construction was actively occurring. These signs indicated that a flagger was present and that a lane was closed. Case 15 addressed creating a detour if both lanes of Omar Road needed to be shut down. Under the contract, roadwork was restricted to the hours of 8:00 a.m. to 4:00 p.m., Monday through Friday, which meant that the temporary signs relating to lane closures and flaggers were to be taken down at the end of each work day and "traffic [was to be] returned to unrestricted roadway use until work resumed the next weekday morning."[10] The plan did not require any temporary warning or traffic control signs at night or on weekends for any portion of the project, including areas where the CIPR asphalt was curing. The plan was approved by DelDOT.

         The use of CIPR presents a risk that a condition known as "raveling" can occur when the rough CIPR recycled base layer is curing. When the base layer "ravels, " it loses its integrity and starts to break apart. This causes the formation of loose gravel, depressions, potholes, and ruts. A deteriorated road surface with those conditions can result in vehicles losing control because it adversely affects the tire-to-road friction dynamic - the tires' grip is lessened which diminishes the driver's control.

         There is evidence that George & Lynch had prior experience with raveling while using CIPR. Raveling occurred during George & Lynch's CIPR paving jobs located on State Route 20 between Dagsboro and Roxana in 2008, and again on State Route 404 between Bridgeville and Georgetown in 2011. As part of a 2012 Sussex County repaving project that included Omar Road, George & Lynch experienced raveling of CIPR on Indian Mission Road a few months prior to the accident in this case.

         There is also evidence that George & Lynch was aware from experience that a roadway that is undergoing the CIPR curing process is especially susceptible to raveling when it is subjected to heavy traffic, excessive rainfall and limited sunlight. George & Lynch employees testified by deposition that they were aware that Omar Road was heavily traveled, at least at that time of year, especially on weekends, because it is a primary route from inland Sussex County to the resort beaches. There is also evidence they were aware that the section of Omar Road where the accident occurred was heavily wooded with a significant tree canopy that limited sunlight.

         On August 22 (four days before the accident), weather forecasts began predicting significant rainfall for the weekend. By Friday, August 24, recycled asphalt had been laid on a portion of the road and compacted into place to begin the curing process. At 4:00 p.m., work was stopped for the weekend, and the road was reopened to traffic. At that time, the road surface appeared to be in order, and there was no evidence of raveling. DelDOT inspectors and safety inspectors were satisfied with the road's condition. As contemplated by the contract, George & Lynch removed the temporary lane closure and flagger signs when the road was reopened, leaving behind only the standard set of "Road Work" signs.

         On Saturday, August 25, a severe thunderstorm passed through the area. By noon on Sunday, DelDOT had received complaints from drivers about potholes on Omar Road. These complaints suggest the thunderstorm may have disrupted the compacted asphalt material and interrupted the curing process. George & Lynch was under contract to make itself available during non-work hours to make repairs, but DelDOT was unable to locate its list of emergency contacts George & Lynch had provided. On the afternoon of Sunday, August 26, DelDOT sent its own crew out to patch potholes on Omar Road around 3:30 p.m.

         On Sunday night, August 26, 2012, around 11:00 p.m., Reed and Pavik were driving from Ocean City, Maryland, to their homes in Sussex County. Reed was driving. Pavik was the front-seat passenger. Reed claims that while driving on Omar Road, she saw a deer just off the side of the road in the grass, facing toward the road. The deer startled her, and she worried it would dash into the road. She reacted by applying her brakes. She then started to feel gravel under her tires for the first time. Upon pressing her brakes, the back end of the vehicle started to "swish." Due to the loss of friction between the vehicle's tires and the road surface, the vehicle lost directional control and entered a yaw. In a yaw, a vehicle's tires are rolling but sliding sideways. She tried to recover by turning the opposite way and adding more pressure to her brakes. Her actions, however, did not restore control. The vehicle left the roadway and struck trees before coming to rest.

         The accident occurred on the portion of Omar Road that was undergoing the curing process. The road had deteriorated due to raveling. Corporal Jay Burns of the State Police Collision Reconstruction Unit reported that the "area that was re-surfaced appeared to be extremely rough and deteriorating creating an unstable driving surface" [11] and that he had observed "large depressions and scattered gravel."[12]

         Reed testified in her deposition that if she had known that loose gravel was present on the road or that the road was rough, she would have reduced her speed until she had been able to gauge the road's condition.

          The Appellants' collision reconstruction expert, John Nawn, testified in his deposition that the raveling on Omar Road caused Reed's vehicle to lose control. He also testified that temporary warning signs should have been in place that warned motorists that the surface conditions of the pavement were not the surface conditions of a normally paved roadway, signs such as "Rough Road" and "Loose Gravel" or "Uneven Pavement." George & Lynch disputes Nawn's opinions. It argues that "[a]lthough John Nawn has stated that he would have put up a warning sign, at no time in his deposition nor in his report could he site [sic] to a specific provision in the DeMUTCD that required such a sign. Nawn could only state with certainty that a sign would have been 'consistent' with the DeMUTCD." However, in a supplemental report dated February 25, 2016, Nawn states that "George & Lynch's failure to provide warning sign(s) breached the standard of care under the terms of their contract with the Delaware Department of Transportation and the provisions of the Manual on Uniform Traffic Control Devices."[13]

         DelDOT's construction-area supervisor conducted a post-accident investigation and concluded that all required signs were in place at the time of the accident and there was no deviation from the DeMUTCD.

          In its motion for summary judgment, George & Lynch argued that it did not owe a legal duty to the plaintiffs to erect temporary warning signs. The plaintiffs argued that the permanent warning signs were insufficient to alert Ms. Reed to the perils of traveling on Omar Road as it underwent the CIPR curing process and that temporary warning signs such as "Loose Gravel" or "Rough Road" should have been in place.

         The Superior Court granted summary judgment in favor of George & Lynch. In the court's view, the first element of the negligence inquiry-duty-was dispositive of George & Lynch's liability.[14] The court held that the traffic plan in George & Lynch's contract with the State defined the scope of its duty, and because the plan did not call for the use of a "Loose Gravel" or "Rough Road" sign when a road was open to traffic during non-construction hours, George & Lynch had no duty to erect one.[15] It also ruled that DelDOT's repair work over the weekend "broke any causation link" between George & Lynch's work and the accident.[16]

         III.

         "This Court reviews de novo the Superior Court's grant or denial of summary judgment 'to determine whether, viewing the facts in the light most favorable to the nonmoving party, the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law.'"[17]

         IV.

         The appellants contend that summary judgment was inappropriate because genuine issues of material fact remain regarding whether George & Lynch breached its duty of care to the traveling public to act as a prudent and reasonable contractor in performing the work on Omar Road. They contend that George & Lynch was responsible for in-the-field maintenance of traffic conditions - including the use of temporary warning signs; that George & Lynch had a duty to exercise its judgment to determine whether temporary warning signs should have been used to warn motorists of the risks that might be encountered while driving on the unfinished portions of Omar Road; and that George & Lynch breached that duty by failing to erect warning signs.

         George & Lynch contends that it was under no duty to place temporary warning signs along the road the Friday afternoon before the accident; that neither the Appellants nor their expert could identify any requirement by DelDOT or the DeMUTCD that a sign must be erected warning motorists that they will be driving on a temporary roadway; that neither the appellants nor their expert could identify any specific conditions of the roadway that existed on Friday night that would have required the use of a warning sign; that no duty exists to place warning signs for a condition which has not yet but, might develop; and that the grant of summary judgment was appropriate.

         V.

         The parties' call our attention to four Delaware cases that have discussed accidents at road construction sites. The first in time is a decision of this Court, High v. State Highway Dep't.[18]

         In High, the plaintiff's husband was killed in an accident at a road construction site. Road construction was taking place on the southbound lanes of a dual highway. Traffic was diverted from the southbound lanes over a grass median, and detoured onto the northbound lanes which had been temporarily altered to handle both directions of traffic. The altered northbound lanes had a double-yellow line to separate the traffic. The plaintiff's husband was struck when a motorist crossed over into the opposite traffic lane while braking to avoid a sudden traffic stoppage ahead of him.

         Prior to beginning the work, the general contractor was required to present a traffic control plan. The plan was approved by the Highway Department with several revisions. The plan provided for "a series of detour signs and barricades erected at each end of the detour; the painting of double yellow lines . . . 'do not pass' signs . . . and the placement of 'advisory' speed signs."[19] The plaintiff sued the Highway Department and the general contractor, alleging negligence on the part of both. All of the experts in the case, both for the plaintiff and the defendants, agreed the detour plan approved by the State was in accordance with nationally accepted standards and followed the Manual of Uniform Traffic Control Devices. The plaintiff's expert, however, testified that the Highway Department and the general contractor were negligent in not adopting a more cautious plan, including additional barricades and different signage.

         This Court was of the view that since both the plan approved by the Highway Department and the plan proposed by the plaintiff's expert were in compliance with the Manual of Uniform Traffic Control Devices, it was not negligence to pursue one rather than the other. The Court stated: "[I]f there are two acceptable courses of action for the achievement of the same purpose, it is not negligence on the part of a defendant to pursue one rather than the other." ...


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