In Court

Better Roads Staff | February 27, 2012

Uneven Lanes

Contractor’s failure to warn by requesting additional safety signs results in liability

By Brian Morrow

In a recent Missouri case, a motorcyclist sued the Missouri Highway and Transportation Commission (MHTC) and a highway contractor for a crash that occurred in a construction zone. The motorcyclist was driving at 70 miles per hour (mph) while passing a tractor-trailer when he lost control and crashed due to uneven pavement between two lanes. The motorcyclist suffered significant injuries, and sued for failure to warn of the uneven lanes.

In Harlan v. APAC-Missouri, Inc. (Dec. 13, 2011), the Missouri Court of Appeals ruled the issue of whether the highway contractor, APAC-Missouri, Inc. (APAC), knew or had reason to know that a 1¾-inch lane height difference it created was dangerous, and whether signs warning of that condition should have been used, was properly decided by the jury.

MHTC contracted with APAC to resurface the highway. On July 26, 2006, a motorcyclist, David Harlan, was driving eastbound on Interstate 70 highway through a construction zone created by APAC. As he drove through the inactive construction zone at the posted speed of 70 mph, Harlan moved into the passing lane to pass a tractor-trailer traveling at 55 mph. After passing the truck, Harlan lost control of his motorcycle attempting to return to the driving lane, due to uneven pavement between the two lanes. Harlan crashed and sustained significant injuries. As a result, Harlan sued MHTC and APAC.

At trial, the failure to warn claim was the only one against APAC. The jury assessed Harlan’s total amount damages to be $1 million. Following the trial, the jury returned a verdict finding MHTC to be 70 percent at fault, APAC to be 25 percent at fault, and Harlan to be 5 percent at fault. Therefore, the trial court entered judgment against MHTC for $700,000 and against APAC for $250,000. APAC appealed.

Road builders must review contract language carefully – to both protect motorists and themselves.

APAC argued the evidence established it followed the traffic control pattern established by MHTC, and it did not know the uneven pavement was a dangerous condition that was likely to cause injury. Under Missouri law, the state highways are under the jurisdiction and control of MHTC. In this case, MHTC did all the design work and contracted with APAC to execute its plan. However, the jury found that APAC knew, or had reason to know, the 1¾-inch uneven lane height was dangerous and that signs warning of that condition should have been used.

APAC’s general superintendent, Jason Stasny, testified that uneven lane situations can be dangerous. He testified that APAC knew there were going to be uneven lanes, that this condition could exist for extended periods of time, and that he was familiar with federal standards suggesting contractors should try to alleviate uneven lane conditions within one operating day, or as soon as possible, because it can be dangerous to motorists. Stasny acknowledged that MHTC’s 1999 standard specifications, which were part of APAC’s contract, provide:

“[t]he contractor may, at no cost to the Commission, add to the traffic control plan any standard signs or traffic control devices that contractor considers necessary to adequately protect the public and the work.”

Stasny also acknowledged the Manual on Uniform Traffic Control Devices provides that uneven lane signs should be used during operations anytime a difference in elevation between adjacent lanes is created.

Another witness, an estimator for APAC and former inspector for MHTC, testified the uneven lanes created during the cold milling process can create a danger for motorists, that APAC could have requested additional signs, and that he had made such requests in the past. The plaintiff’s engineering expert testified that studies going back to 1984 indicate uneven lanes can be unsafe and, at speeds of 45 mph or higher, even height differentials of one inch or less can be dangerous to motorcyclists. He testified that APAC’s failure to act fell below the standard of care for contractors.

APAC argued the evidence did not establish it had authority to unilaterally place warning signs, or that MHTC would have authorized signs if APAC had requested them. However, the testimony showed MHTC would have taken seriously any request for additional safety signs. The court found the evidence was sufficient to support the jury’s finding, and therefore, affirmed the judgment against APAC for $250,000.

This case highlights the importance of carefully reviewing and understanding a contract’s language. The work of road and highway contractors affects the traveling public on a continual basis. Traffic control is especially important as it directly impacts life-health-safety issues where the potential liability can be enormous. Here, despite APAC’s general compliance with its contract obligations, it was found liable for significant damages due to its failure to request additional safety signs. This liability might have been avoided by a careful review of the contract and specifications, especially regarding traffic control issues. v

Brian Morrow is a partner in the California law firm of Newmeyer & Dillion LLP. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact: brian.morrow@ndlf.com

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