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1. Highways and Streets--construction--warning signs--negligence--contractors
The trial court did not err by granting summary judgment for third-party defendants Rea
and P.S.I. in a action arising from a collision in a work zone where Rea was a contractor of
NCDOT, P.S.I. was a subcontractor of Rea, and the third-party plaintiff alleged negligence in
failing to attach a 45 m.p.h. speed advisory sign to the “left lane closed ahead” sign. There was
testimony that it was NCDOT's duty to create a traffic control plan and that P.S.I. only furnished
the materials and erected the signs as NCDOT directed; if the signs were not erected as specified
by NCDOT, neither Rea nor P.S.I. would be compensated. There was also evidence that
NCDOT marked the roadway indicating which signs were to be erected and where, that an
NCDOT inspector was present when P.S.I. erected the signs, and that NCDOT inspected the
signs almost daily. The only duty of Rea and P.S.I. was to exercise ordinary care in providing and
maintaining reasonable warnings.
2. Highways and Streets--construction--warning signs--negligence--NCDOT
The trial court erroneously granted summary judgment for third-party defendant NCDOT
in an action arising from a truck rear-ending a van in a construction zone where the third-party
plaintiff alleged negligence in the placement of a warning sign and there was evidence that the
truck driver would have slowed had he seen the sign and that the signage contributed to the
accident. Genuine issues of fact existed as to whether NCDOT breached its duty and whether the
signage was a proximate cause of the accident.
Judge WYNN dissenting.
McDaniel, Anderson & Stephenson, L.L.P., by William E.
Anderson and John M. Kirby, for defendants-appellants J.M.X.,
Incorporated and Esau R. Dixon.
Yates, McLamb & Weyer, L.L.P., by Rodney E. Pettey, for third-
party defendant-appellee Rea Construction Company; and Smith,
Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by
James D. Blount, Jr. and Deanna L. Davis, for third-party
defendant-appellee Protection Services, Inc.
WALKER, Judge.
On 23 August 1996, a multi-vehicle accident occurred in a
construction zone on I-85 North in Durham County, prior to the
Glenn School Road overpass. Plaintiffs initiated four civil
actions against third-party plaintiffs J.M.X., Incorporated
(J.M.X.) and Esau Roosevelt Dixon (Dixon), alleging that Dixon, an
employee of J.M.X., was negligent in operating a tractor trailer
owned by J.M.X. Plaintiffs alleged that Dixon negligently drove
the tractor trailer into the rear of a John Umstead Hospital van
which was stopped in the right northbound lane, causing a chain
reaction collision and that J.M.X. was liable under the doctrines
of agency and respondeat superior. Third-party plaintiffs answered
denying negligence and claimed that the accident was unavoidable
since Antoinette Toler (Toler), the driver of the hospital van,
negligently cut in front of the tractor trailer, leaving Dixon
insufficient time to stop.
Third-party plaintiffs later filed third-party complaints
against Toler, Rea Construction Company (Rea), Protection Services,
Inc. (P.S.I.), and the State of North Carolina, ex rel NCDOT
(NCDOT), alleging that Toler was negligent in operating the
hospital van and that Rea, P.S.I., and NCDOT were negligent in
constructing signage for the construction zone since they failed to
attach a 45 m.p.h. speed advisory sign to the “left lane closed
ahead” sign. Rea was a contractor of NCDOT for this construction
project, and P.S.I. was a subcontractor of Rea. Third-party
defendants Rea, P.S.I., and NCDOT moved for summary judgment, whichwas granted after a hearing. The trial court then granted third-
party plaintiffs' motion pursuant to Rule 54(b) of the North
Carolina Rules of Civil Procedure, allowing them to immediately
appeal the summary judgment orders.
Third-party plaintiffs assign as error the trial court's
granting of summary judgment in favor of Rea, P.S.I., and NCDOT
since genuine issues exist. “To recover damages for common law
negligence, a plaintiff must establish (i) a legal duty, (ii) a
breach thereof, and (iii) injury proximately caused by such
breach.” Hunt v. N.C. Dept. of Labor, 348 N.C. 192, 195, 499
S.E.2d 747, 749 (1998). Summary judgment is proper when there isno genuine issue as to any material fact and any party is entitled
to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule
56(c)(1999); Coastal Leasing Corp. v. T-Bar S Corp., 128 N.C. App.
379, 496 S.E.2d 795 (1998). Defendant, as the moving party, bears
the burden of showing that no triable issue exists. Roumillat v.
Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339,
341-342 (1992). This burden can be met by showing: (1) that an
essential element of plaintiff's claim is nonexistent; (2) that
discovery indicates plaintiff cannot produce evidence to support an
essential element; or (3) that plaintiff cannot surmount an
affirmative defense. Id. at 63, 414 S.E.2d at 342. Once a
defendant has met that burden, the plaintiff must forecast evidence
tending to show a prima facie case exists. Id. “However, it is
only in exceptional cases, in which reasonable minds cannot differ
as to foreseeability of injury, that a court should decide
proximate cause as a matter of law.” Williams v. Carolina Power &
Light Co., 296 N.C. 400, 403, 250 S.E.2d 255, 258 (1979). Thus,
summary judgment is “rarely appropriate in negligence actions.”
Bernick v. Jurden, 306 N.C. 435, 450, 293 S.E.2d 405, 415 (1982).
[1]We first address the granting of summary judgment in favor
of Rea and P.S.I. Third-party plaintiffs contend that contractors
and subcontractors of NCDOT have a statutory duty to maintain the
highways and to comply with the standards in the NCDOT manual.
Third-party plaintiffs rely on N.C. Gen. Stat. § 136-25 which
provides:
It shall be mandatory upon the Department of
Transportation, its officers and employees, orany contractor or subcontractor employed by
the said Department of Transportation, to
select, lay out, maintain and keep in as good
repair as possible suitable detours by the
most practical route while said highways or
roads are being improved or constructed,....
N.C. Gen. Stat. § 136-25 (1999). Rea and P.S.I. argue that a
contractor is not required to guarantee the safety of the motoring
public. See Presley v. C.M. Allen & Co., Inc., 234 N.C. 181, 184,
66 S.E.2d 789, 791 (1951). Instead, a contractor's duty is simply
to “exercise ordinary care in providing and maintaining reasonable
warnings and safeguards against conditions existent at the time and
place.” C.C.T. Equip. Co. v. Hertz Corp., 256 N.C. 277, 284, 123
S.E.2d 802, 808 (1962).
Third-party plaintiffs' expert witness, Don R. Moore,
testified that it was NCDOT's duty to create a traffic control plan
and that P.S.I. only furnished the materials and erected the signs
as NCDOT directed. The evidence indicates that if the signs were
not erected as specified by NCDOT, neither Rea nor P.S.I. would be
compensated for its work. Here, there is also evidence that NCDOT
marked the roadway indicating which signs were to be erected and
where, and that a NCDOT inspector was present when P.S.I. erected
the signs for this construction project. NCDOT then inspected the
signs almost daily to ensure that they remained in conformity with
NCDOT's standards. Since NCDOT had sole discretion in determining
the signage for this construction project, the only duty of Rea and
P.S.I. was to exercise ordinary care in providing and maintaining
reasonable warnings. Therefore, we conclude that no genuine issue
exists as to whether Rea or P.S.I. breached their duty todefendants and that the trial court properly awarded summary
judgment in their favor.
[2]We next address the granting of summary judgment in favor
of NCDOT. Third-party plaintiffs argue that NCDOT is responsible
for the “necessary planning, construction, maintenance, and
operation of an integrated statewide transportation system”
pursuant to N.C. Gen. Stat. § 143B-346 (1999) and that it breached
its duty, proximately causing injury. Specifically, third-party
plaintiffs contend that NCDOT violated N.C. Gen. Stat. § 136-30 by
failing to conform with the NCDOT Manual Standard § 150.03 which
requires that an advisory speed sign be attached to the post of a
“left lane closed ahead” sign. Relying on an Ohio case, Lumbermens
Mutual Casualty Co. v. Ohio D.O.T., 49 Ohio App. 3d 129, 551
N.E.2d 215 (1988), third-party plaintiffs argue that NCDOT did not
have discretion in this matter and was required to post a 45 m.p.h.
advisory speed sign on the post with the “left lane closed ahead”
sign. In Lumbermens, the Ohio court found the D.O.T. did not
comply with its manual which states that a rough road sign, once
installed, “shall” be accompanied by advisory speed signs. Id.
The record reveals the parties stipulated that the appeals
from the present case and the companion case of Green v. Dixon, et
al, (NO. COA99-131 filed 4 April 2000), would be consolidated for
hearing pursuant to Rule 40 of the Rules of Appellate Procedure.
Although NCDOT did not submit a brief for consideration in the
present case, this Court, in its discretion, elects to consider the
briefs filed by the third-party defendants in both cases. We note,however, that it is a better practice for the parties to file
briefs in each case.
In their briefs, third-party defendants contend that the trial
court properly granted summary judgment since there is no genuine
issue of material fact. Third-party defendants argue that
Lumbermens is distinguishable from the present case since the
advisory speed sign was merely “relocated” within the construction
zone rather than completely missing. NCDOT Manual Standard §
150.03 consists of a diagram which illustrates the signage that is
to be used for the long term closure of one side of a four-lane
divided roadway. There is, however, evidence in the record that
the standards set forth in the NCDOT Manual are subject to the
discretion of the NCDOT project engineer and should be adjusted
according to the particular field conditions. Furthermore, third-
party plaintiffs have failed to cite any provisions in the NCDOT
Manual which deprive the project engineer of discretion in this
matter.
Third-party defendants further contend that there is no
factual issue regarding proximate cause since all of the drivers
involved in the accident had actual notice of the construction.
Additionally, third-party defendants rely on the testimony of
Moore, third-party plaintiffs' expert, who admitted that similar
accidents occur in construction zones where the signage is proper,
that the majority of drivers does not follow the first advisory
speed limit sign encountered, and that the second advisory signwould have been past the section of I-85 where the accident
occurred.
Third-party plaintiffs argue that the construction signage was
a proximate cause of the accident and that Moore's testimony was
sufficient to withstand the summary judgment motion. Moore averred
in his affidavit that the “omission of the 45 MPH sign from the
post with the LEFT LANE CLOSED AHEAD sign south of the bridge
violated applicable safety standards” and that these violations
“more likely than not contributed to the causation of the accident
on August 23, 1996.” Third-party plaintiff Dixon testified that if
he had seen a 45 m.p.h. advisory speed limit sign before he reached
the Glenn School Road overpass, he would have reduced his speed
from 55 m.p.h. to 45 m.p.h. Furthermore, during his deposition,
Moore testified that, in his opinion, “this signage did contribute
to and was a causation of the accident, and the reason for that is
because we have other vehicles that are merging.” Moore stated
that even if Dixon were not paying attention to the signs, the
signage could have contributed to the accident due to the reactions
of other drivers on the highway. Based on this testimony, we
conclude that this case is distinguishable from Lumbermens and that
third-party plaintiffs forecasted sufficient evidence tending to
establish a prima facie case since genuine issues exist as to
whether NCDOT breached its duty and whether the signage was a
proximate cause of the accident. In summary, we affirm the trial court's granting of summary
judgment in favor of Rea and P.S.I., and we reverse the granting of
summary judgment in favor of NCDOT.
Affirmed in part and reversed in part.
Chief Judge EAGLES concurs.
Judge WYNN dissents.
WYNN, Judge, dissenting.
I disagree with the majority's conclusion that no genuine issue exists as to whether Rea or P.S.I. breached a duty to the defendants. Instead, I would find that an issue of fact exists as to whether Rea and P.S.I. breached a duty to exercise ordinary care for the safety of the general public.
First, our case law indicates that a road contractor undertakes such a duty. In C.C.T. Equip. Co. V. Hertz Corp., 256 N.C. 277, 284, 123 S.E.2d 802, 808 (1962), our Supreme Court established that when “a contractor undertakes to perform work under contract with the State Highway Commission, the positive legal duty devolves on him to exercise ordinary care for the safety of the general public traveling over the road on which he is working.”
Second, our statutes mandate a duty on road contractors. Under N. C. Gen. Stat. § 136-25, “any contractor or subcontractor employed by [NCDOT]” has a duty “to select, lay out, maintain and keep in as good repair as possible suitable detours by the most practical route . . . .” Finally, the testimonial evidence at trial pointed to such a duty. Employees of both Rea and P.S.I. testified that their businesses routinely adopted the safety standards set forth in the NCDOT Manual for Highway Signs. In doing so, they acknowledged that a certain duty of care existed towards those traveling the highways, and that they were aware of this duty.
Thus, existing case law, statutory law and testimonial evidence in this case shows that Rea and P.S.I. owed a duty to the general public to exercise ordinary care in the placement of highway signs for this project. The fact that they may have followed NCDOT's orders as to where to put the signs does not mean that they no longer had a duty to exercise ordinary care. Indeed, such evidence is only part of the proof that the jury would consider in determining whether the contractor and subcontractor breached their existing duty of care to the general public.
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