Divided Delaware Supreme Court Holds Highway Contractor Owes a Common Law Duty to Provide for the Safety of the Traveling Public, Above and Beyond Its Approved Traffic Control Plan

Pavik v. George & Lynch, Inc., No. 160, 2017, 2018 Del. LEXIS 133 (Mar. 23, 2018)

This case arises out of a highway reconstruction project and a car accident which occurred on the highway during non-working hours.  The Delaware Department of Transportation (“DelDOT”) hired George & Lynch, Inc. (“G&L”) to repave Omar Road.  The contract obligated G&L to perform its work in a manner that would provide reasonably safe passage to the traveling public and to provide for the protection and safety of the general public.  DelDOT approved G&L’s traffic control plan, which provided for placement of temporary warning signs during working hours and permanent warning signs advising travelers of road work ahead.  As part of its work, G&L performed cold in-place recycling, a process by which asphalt is removed, recycled, and reapplied as a base layer.  As the recycled asphalt cures, the road surface can support traffic, but there is a risk that raveling—a condition in which the base layer breaks apart—can occur.

It was during a curing period that the accident occurred.  On Friday, after asphalt had been installed and began to cure, the road was reopened.  On Saturday, after a thunderstorm, DelDOT received complaints of potholes on the road.  On Sunday, DelDOT patched the potholes and later that night, the driver lost control of her car and ran off the road.  Plaintiffs claimed the accident was caused by raveling and that G&L was negligent because it failed to provide warning signs about the road’s condition during the non-working hours.  G&L argued that it had no duty to erect additional signs and that DelDOT’s repairs broke the chain of causation.

The trial court granted G&L summary judgment, holding that the approved traffic plan defined the scope of its duty, and because the plan did not call for placement of additional signs during non-working hours, G&L had no duty to erect them.  The court also held that DelDOT’s repair work broke any causal link between G&L’s work and the accident.

The Delaware Supreme Court reversed, holding that the lower court erred by not approaching this case through the “standard negligence framework,” i.e., determining whether G&L should have, in the exercise of reasonable care, foreseen a need for temporary traffic control signs, and if so, whether it should have sought authority from DelDOT to erect the signs, and whether the absence of the signs was a cause of the accident.

The Court also noted that the court below had misinterpreted a prior Supreme Court case, High v. State Highway Dep’t, as holding that when the State approves a contractor’s traffic safety plan, the plan defines the scope of the contractor’s duty, and absent deviation from the plan, there is no negligence.  The Court explained that High turned on the element of breach, not duty, and does not stand for the proposition that a contractor’s duty begins and ends with a State-approved traffic plan.  Rather, G&L, as a contractor doing road work, was under a common law duty to act as a reasonably prudent contractor in providing for the safety of the traveling public in addition to its contractual duties  Thus, G&L’s compliance with safety standards during working hours did not mean that G&L acted reasonably to address risks that may have arisen during off-hours, and absent a specific plan to deal with those risks, G&L’s obligations arose from its general contractual and common law duties.  Because questions remain as to whether G&L satisfied these obligations, G&L was not entitled to summary judgment.

The Court also reversed the decision on causation, explaining that superseding cause is a fact driven issue and could not be resolved as a matter of law on the present record.

Chief Justice Strine dissented, concluding that summary judgment was appropriate because G&L had conformed to its duty under the approved traffic control plan and DelDOT’s weekend repairs broke any causal connection between G&L’s work and the accident on Sunday evening.  The dissent explained that the approved traffic plan defined and limited G&L’s potential for liability and noted that the “practical reality” of the majority’s decision is that “road construction contractors are no longer bound only by the approved traffic control plan governing a specific project, but rather, may face potential liability at the discretion of a jury where they could have exercised any level of discretion to take additional precautionary measures.”

To view the full text of the court’s decision, courtesy of Lexis®, click here.

John J. Gazzola

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