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Pavik v. George & Lynch, Inc.
Citation: 183 A.3d 1258Docket: 160, 2017
Court: Supreme Court of Delaware; March 23, 2018; Delaware; State Supreme Court
Original Court Document: View Document
Jennifer Pavik, Douglas Todd Pavik, and Ashlee Jean Reed appealed a decision from the Superior Court of Delaware regarding a single-vehicle accident on Omar Road in Sussex County. Ashlee Reed was driving, and Jacqueline Pavik was a passenger who died from injuries sustained in the crash, which occurred during a road reconstruction project. The plaintiffs alleged that an unsafe condition known as raveling, a result of the ongoing construction, caused Reed to lose control of the vehicle and crash. They claimed George Lynch, Inc., the general contractor, was negligent for not providing adequate temporary traffic control signs to warn of the hazardous road conditions. The Superior Court granted summary judgment in favor of George Lynch, ruling that the company had no duty to post warning signs because the accident occurred on a weekend when no construction was happening. The court also determined that repair work performed by the Delaware Department of Transportation (DelDOT) on the day of the accident severed any causal link between George Lynch’s alleged negligence and the accident. Upon review, the Supreme Court of Delaware found the Superior Court's summary judgment to be legally incorrect and reversed the decision, remanding the case for further proceedings. The contract between the State and George Lynch required the contractor to furnish and maintain necessary traffic control devices, underscoring the expectation for adequate safety measures during the construction process. Work must be conducted to ensure safe passage for all users—vehicular, bicycle, and pedestrian—with minimal obstruction. Compliance with the Delaware Manual on Uniform Traffic Control Devices (MUTCD) is mandatory for all temporary traffic control devices. Traffic control, management, and maintenance must adhere to the Delaware MUTCD, project plans, specifications, and directives from the Engineer. Modifications to the Temporary Traffic Control Plan (TTCP) are permitted but require justification and approval from the Engineer before implementation. The Contractor must submit a TTCP during the pre-construction meeting and must employ an American Traffic Safety Services Association (ATSSA) certified Traffic Control Supervisor, who will oversee traffic maintenance, including installation and servicing of temporary devices, as well as daily logging of maintenance activities. This supervisor will act as the liaison with the Engineer regarding traffic maintenance. The Contractor is responsible for maintaining safe traffic conditions throughout the project until substantial completion is achieved. This includes the erection and maintenance of necessary traffic control devices like barricades, warning signs, and flaggers, in accordance with the Traffic Control Manual. Warning signs should highlight unexpected conditions that require caution, and their use should be based on engineering studies or judgment, minimizing unnecessary signage to maintain respect for traffic signals. No single set of temporary traffic control (TTC) devices is adequate for all project conditions, as detailed in Section 6A.01.07. Instead, Part 6 provides typical applications for various TTC setups, which depend on factors such as highway type, road user conditions, operational duration, physical constraints, and proximity to road users. Special warning signs, guided by engineering judgment, should adhere to specific standards regarding color, shape, and legibility. The contractual relationship between DelDOT and George Lynch is outlined, with DelDOT acting as the contract administrator rather than a work supervisor. Inspectors, under the Engineer's authority, are also contract administrators and must not interfere with the contractor's management of work. George Lynch submitted a traffic control plan to DelDOT before construction, using two case diagrams from the DeMUTCD: Case 6, which involved permanent warning signs and temporary signs for flaggers and lane closures, and Case 15, which addressed detours during total lane shutdowns. Construction was limited to weekdays from 8:00 a.m. to 4:00 p.m., requiring that temporary signs be removed each evening for unrestricted roadway use until the next workday. The plan, approved by DelDOT, did not necessitate nighttime or weekend traffic control signs, including during the curing of CIPR asphalt. CIPR poses a risk of "raveling," which can compromise road integrity, leading to loose gravel and reduced tire-to-road friction, affecting vehicle control. George Lynch had prior experiences with raveling during CIPR jobs in 2008 and 2011 and encountered similar issues on Indian Mission Road shortly before the incident in question. The contractor was aware that roadways in the CIPR curing stage are particularly vulnerable to raveling under heavy traffic, excessive rain, and limited sunlight. Employees from George Lynch acknowledged awareness of the heavily trafficked nature of Omar Road, particularly on weekends, as it serves as a main route to resort beaches. They recognized that the accident-prone section was densely wooded, limiting sunlight exposure. Notably, weather forecasts indicated impending significant rainfall shortly before the accident. On August 24, recycled asphalt was laid and compacted, and the road was reopened to traffic after inspections deemed it satisfactory, with no signs of surface deterioration. Temporary lane closure and flagger signs were removed, leaving only standard "Road Work" signs. Following a severe thunderstorm on August 25, complaints about potholes emerged by noon the next day, suggesting that the storm affected the road's surface and disrupted the asphalt's curing process. George Lynch was contractually obligated to be available for repairs during non-work hours, but DelDOT could not locate their emergency contact list. DelDOT dispatched its crew to patch potholes on August 26. Later that night, Reed and Pavik were driving on Omar Road when Reed spotted a deer, which startled her and prompted her to brake. This action caused the vehicle to lose traction due to loose gravel, leading to a loss of control and ultimately a crash into trees. The area where the accident occurred was undergoing curing and had deteriorated, exhibiting rough conditions and gravel. A collision reconstruction expert attributed the loss of control to the road's raveling and indicated that appropriate warning signs, such as “Rough Road” or “Loose Gravel,” should have been displayed to alert motorists to the hazardous conditions. Reed testified that had she been aware of the road's poor condition, she would have reduced her speed. George Lynch contests the opinions of John Nawn regarding the necessity of warning signs at a construction site. Nawn could not cite a specific DeMUTCD provision mandating such signs, stating only that a sign would have been 'consistent' with the code. In a supplemental report, Nawn claimed Lynch’s failure to provide warning signs violated the standard of care in its contract with the Delaware Department of Transportation (DelDOT) and the Manual on Uniform Traffic Control Devices. However, DelDOT’s construction-area supervisor found all required signs were present at the time of the accident, confirming compliance with the DeMUTCD. The Superior Court granted summary judgment in favor of George Lynch, determining that Lynch did not owe a legal duty to the plaintiffs for erecting temporary warning signs, as the traffic plan in its contract did not require such signs when the road was open during non-construction hours. The court also concluded that DelDOT's ongoing repair work severed any causal link between Lynch's actions and the accident. The appellants argue that summary judgment was inappropriate due to unresolved material facts about Lynch’s duty of care and the requirement to use temporary warning signs. They assert that Lynch was responsible for maintaining traffic conditions and should have exercised judgment regarding the use of warning signs for the unfinished roadway. Conversely, Lynch maintains it had no obligation to place signs before the accident, asserting that neither the appellants nor their expert could identify a specific requirement for signs under DelDOT or the DeMUTCD, nor any existing hazardous conditions that warranted such warnings. The appellants reference several Delaware cases related to construction site accidents, starting with High v. State Highway Dep’t, which involved a fatal accident during road construction. Alterations to the northbound lanes included a double-yellow line for traffic separation. The plaintiff's husband was hit by a motorist who veered into oncoming traffic while braking for a sudden stop. A traffic control plan, which included detour signs, barricades, and lane markings, was required from the general contractor and approved with revisions by the Highway Department. Both plaintiff and defense experts agreed the plan met national standards and adhered to the Manual of Uniform Traffic Control Devices. However, the plaintiff's expert claimed negligence for not implementing a more cautious plan with extra barricades and signage. The Court determined that choosing between two acceptable plans did not constitute negligence and found no evidence that the contractor deviated from the approved plan, leading to a reversal of the jury verdict against the Highway Department and the contractor. In a separate case, Thurmon v. Kaplin, a motorcyclist sued a general contractor and subcontractor after an accident during non-construction hours on a repaving site. The motorcyclist was struck while in the right turn lane, with inadequate lane markings. The Court noted that the consulting engineer from DelDOT had not directed the contractor to apply specific striping. The plaintiff's argument that the defendants had a duty to provide markings was rejected as the Manual did not impose such a mandatory duty. Nonetheless, the Court acknowledged that the contractor had taken on the responsibility to ensure public safety, leaving the question of their prudence to the jury. In Hales v. English, a contractor resurfacing Route 113 followed an approved traffic control plan, which included having a police officer direct traffic at an intersection. The plaintiffs were stopped at a side road stop sign, waiting to turn onto the highway while the officer managed traffic as per the plan. The officer directed the plaintiffs' vehicle to cross the southbound lane, leading them to believe they could proceed left onto the northbound lane without stopping, resulting in a collision. The plaintiffs contended that the contractor should have closed the median, rerouted traffic, or employed an additional flagger. The Superior Court granted summary judgment for the contractor, citing a lack of evidence showing deviation from the approved traffic control plan. The court referenced the precedent set in High, stating that if two acceptable methods exist to achieve the same goal, choosing one does not constitute negligence. In a related case, Patton v. 24/7 Cable Company, a motorcyclist sued multiple parties after a collision in a construction zone. The defendant driver entered a crossover median without noticing the motorcyclist. The motorcyclist argued that the contractors failed to implement reasonable safety measures and did not comply with their construction permit. The contractors sought summary judgment, asserting there was no evidence of negligence since they adhered to the DeMUTCD standards. The court determined that, while the plaintiffs claimed negligence for failing to maintain safe travel through the construction site, the standard of care was defined by the DeMUTCD. However, if negligence was alleged due to a lack of supervision, the standard shifted to that of a reasonable contractor. The court found factual questions regarding the adherence to the DeMUTCD and the contractors' compliance with their contract with DelDOT, leading to a denial of summary judgment. Notably, differences from the High case included agreement among experts in High on compliance with standards, whereas in this instance, an expert claimed that the contractor failed to provide necessary warning signs, indicating a potential breach of contract and DeMUTCD provisions. Additionally, the plaintiffs alleged that the contractor failed to anticipate a safety risk, which was not a claim in High. Both Thurmon and Patton acknowledged a general contractor's duty to ensure public safety, which can be satisfied by implementing an effective traffic plan meeting national standards like the DeMUTCD. The Superior Court interpreted the case of High as establishing that a contractor's duty is defined by the traffic management plan approved by the State, concluding that George Lynch was not required to install “Loose Gravel” or “Rough Road” signs since the plan did not specify them. This interpretation was erroneous in two significant respects. First, the Court mischaracterized High as focused on duty rather than negligence, thus improperly influencing the assessment of whether Lynch should have provided additional temporary warning signs. High actually hinged on breach of duty, absolving the contractor and the State of liability because the existing precautions in their traffic plan were deemed reasonable and in line with national safety standards. Second, the Court wrongly concluded that Lynch could not be held liable for not using specific warning signs because the traffic plan lacked explicit provisions for them. Unlike High, where the proposed precautions directly contradicted the traffic plan, the issue here involved temporary warning signs, which were not addressed by the plan at all. Therefore, the absence of a requirement for these signs does not preclude potential negligence on Lynch's part for failing to implement them during off-hours. George Lynch's obligations under the DeMUTCD are limited to risks during active construction, specifically in relation to Case 6 and Case 15, which focus on traffic mitigation while repaving occurs. These cases do not address safety measures for non-work hours when traffic is normal, highlighting that adherence to DeMUTCD standards during work hours does not equate to reasonable precautions for off-hours risks. Without a specific plan for such risks, George Lynch's responsibilities revert to general contractual duties, which require compliance with the 2011 DeMUTCD and a tort duty to exercise reasonable care. The precedent set by High indicates that a contractor's duty encompasses following a traffic management plan that aligns with national safety standards but does not limit liability solely to such plans. Additionally, case law, such as Richardson v. Pioneer Const. Co., underscores a contractor's common law duty to ensure public safety and provide adequate traffic conditions. Contractually, George Lynch was responsible for maintaining public safety on the project, with oversight from DelDOT, but the contract's lack of requirement for extra warning signs during non-work hours was interpreted by the trial court as limiting their obligations to foresee and mitigate those risks. The contract in question did not explicitly relieve George Lynch of the duty to take reasonable care in mitigating risks posed to after-hours drivers. It lacked provisions regarding the necessary actions to address foreseeable risks that could arise outside of regular working hours. If the contract had stated that George Lynch's responsibilities were confined to specific hours, the State might have exclusively borne the burden of mitigating risks thereafter. However, since the contract did not specify this, it remains inappropriate to alter the parties' agreed terms. The Superior Court should have applied a negligence framework to assess whether George Lynch reasonably foresaw the need for temporary traffic control signs over the August 25-26 weekend and whether it sought permission from DelDOT to place such signs. Questions also arise regarding whether DelDOT would have approved such a request and if the lack of signs contributed to the accident. George Lynch contended that the DeMUTCD does not mandate sign placement on temporary road surfaces. While this is accurate, the DeMUTCD does allow for warning signs when conditions warrant their use. The absence of specific conditions in the DeMUTCD does not imply that signs are unnecessary. George Lynch further claimed it did not violate either the contract or the DeMUTCD, yet questions persist about its obligation to ensure public safety. Additionally, George Lynch argued that signs should only be erected when necessary, but the determination of whether the benefits of such precautions outweigh the costs is a factual issue for the court. The company also stated that there was no duty to warn of risks that had not yet manifested. However, a duty to exercise reasonable care for foreseeable risks exists. Finally, the Superior Court concluded that DelDOT's weekend pothole patching severed the causal link between George Lynch's actions and the accident. This ruling was deemed insufficiently supported by evidence, as questions remained about whether DelDOT's activities contributed to the incident, particularly since a witness did not recall encountering potholes. Reed lost control of her vehicle on Omar Road, which had been recently repaired but exhibited loose gravel and rough conditions at the time of the accident. Although the road was in a deteriorated state when Corporal Burns arrived post-accident, there is no evidence regarding its condition when the Delaware Department of Transportation (DelDOT) completed repairs. George Lynch contends that DelDOT should not have been expected to place "Loose Gravel" warning signs when no loose gravel was present at the time of their departure. The foreseeability of gravel conditions following DelDOT's work is a key point. DelDOT's responsibilities after-hours are limited to emergency repairs, and the record is unclear about any further duties or inspections conducted by the crew. Questions remain regarding the crew's awareness of raveling issues, their inspection practices, and whether they had any obligation to post additional signs. The court indicated that it was erroneous to determine that DelDOT's actions constituted a superseding cause of the accident as a matter of law, emphasizing that the determination of superseding cause is fact-driven. The dissent expressed concerns about emotional bias influencing jury decisions in cases involving loss of life, but the majority held confidence in the jury's ability to remain impartial. The dissent also touched on Ms. Reed's adherence to driving responsibilities and the broader implications of negligence, suggesting these matters should be resolved by the jury rather than the court. Finally, the court reiterated that the trial court's absolution of George Lynch from liability was premature, as it skipped the essential duty phase of the negligence analysis. Four signs warning of construction were present on Omar Road, yet the driver did not notice any construction indicators or reduce speed until she saw a deer. The contract stipulates that George Lynch is not responsible for certain traffic control measures, which could lead to increased costs for the state in road improvement projects. The court found genuine disputes of fact regarding whether DelDOT's repairs affected the causation link between George Lynch’s work and the accident, necessitating further proceedings. The dissenting opinion argues that the Superior Court correctly concluded that George Lynch followed the approved traffic control plan, which limited its obligations, as there was no evidence of deviation from this plan. The dissent emphasizes that a contractor is not negligent if pursuing an acceptable course of action, even if another method exists. On August 24, 2012, DelDOT took control of the non-active work zone and deemed it safe for normal traffic without additional warnings. Following a rainstorm, DelDOT repaired the road without asking George Lynch to perform repairs, which it was only obligated to do upon request. DelDOT failed to notify George Lynch of potholes or deteriorating conditions and did not request additional warning signs, affirming that George Lynch had no duty to inspect or maintain the road over the weekend. Lynch's repair work on the road, completed by Friday afternoon, severed the causal link to the tragic accident occurring on Sunday night at 11:00 PM. Lynch complied with the approved traffic control plan, and DelDOT's assumption of control over the road at 4:00 PM on Friday eliminated any obligation for Lynch to conduct after-hours repairs, leading to the affirmation of the Superior Court’s summary judgment in favor of Lynch. The contract between Lynch and DelDOT defined specific obligations, including the placement of permanent warning signs, adherence to a work schedule (Monday through Friday, 8:00 AM to 4:00 PM), traffic modification during active work, filling ruts and potholes daily, and returning traffic to normal flow after inspections. It did not permit Lynch to establish additional warning signs during inactive periods without DelDOT's direction, which aligns with guidelines from the Delaware Manual on Uniform Traffic Control Devices that advocate for minimizing unnecessary signage. A distinction was made that, unlike previous cases, there was no evidence that Lynch assumed a common law duty of care beyond the contract's specific terms, and the adequacy of DelDOT's planning decisions regarding traffic control during non-construction hours remains unclear. George Lynch lacked the authority to install additional warning signs without DelDOT's approval and was not obligated to perform repairs outside of designated work hours unless requested by DelDOT. The contract specified that unnecessary overuse of warning signs should be avoided to prevent public desensitization. On August 24, 2012, George Lynch fulfilled its contractual obligations by removing temporary warning signs and leaving permanent ones in place while addressing road surface issues. DelDOT inspected the road, deemed it safe, and reopened it to traffic that same day. At that time, conditions were dry, and no road damage was observed. Following a heavy rainstorm the next day, DelDOT’s maintenance crew confirmed potholes and undertook repairs without involving George Lynch, severing any causal link between Lynch's prior work and a subsequent accident. The court expressed hesitation in holding George Lynch liable for not monitoring the road continuously or for failing to address potential hazards arising from changing weather conditions, as the contract delineated the responsibilities clearly. Lynch lacks the authority to manage road improvement projects, which raises concerns about escalating costs for the state and taxpayers. DelDOT is identified as the responsible party for determining the necessity of additional signage on Omar Road at the time of the accident. However, DelDOT retains its sovereign immunity as it did not secure liability insurance for such incidents, leaving George Lynch as the sole potentially liable party. DelDOT did not require Lynch to perform weekend inspections or to install additional warning signs beyond the agreed traffic control plan, instead opting to handle after-hours inspections and repairs themselves. The majority's decision to impose a general tort duty of reasonable care for weekend repairs contradicts the agreed limitations of Lynch’s contractual responsibilities. This could lead to increased costs for future state road projects, as contractors would need to factor in potential liabilities that extend beyond their defined roles, affecting their ability to bid competitively. The majority's interpretation of prior case law does not accurately reflect the findings regarding the reasonableness of the traffic control plan, which was only deemed compliant with national safety standards without a thorough assessment of its adequacy under the specific circumstances. In cases of fatal accidents involving young victims, juries may be inclined to award damages even without clear fault, particularly against well-resourced defendants. The case of George Lynch emphasizes that he did not bear a public duty as suggested by the majority opinion. Delaware law mandates that drivers must maintain full attention, observe traffic conditions, and comply with traffic control devices. Traffic and construction signs are designed to alert drivers to specific hazards, and failure to heed such warnings constitutes a lack of due care. Delaware law (21 Del. C. § 4176) outlines that careless driving results from failing to drive with due regard for conditions, while inattentive driving arises from not maintaining a proper lookout. Drivers in construction zones must recognize that obstructions or dangers exist and cannot assume safety; they are required to control their vehicles to stop within visible distances of hazards. The expectation is that motorists will encounter construction situations routinely and should prepare accordingly. Evidence from cases, such as Woods v. State and Williams v. State, confirms that construction zones require heightened awareness, and signage, such as speed limits and caution lights, serves as a clear warning to drive cautiously. The responsibility lies with the driver to navigate these areas safely and attentively. The traffic-routing plan approved by the Highway Department adhered to standard safety provisions outlined in the Manual of Uniform Traffic Control Devices, which are widely used across states. The detour implemented during construction met nationally accepted traffic control standards. Although the plaintiffs’ expert suggested that a lack of additional warning signs constituted a breach of contract and regulations, the expert only indicated that such signs would be "consistent" with the obligations, not mandatory. Compliance with the contract and regulations was determined by DelDOT, which approved the plans prior to construction. George Lynch's responsibilities changed once the road was returned to DelDOT's control. Four prominent warning signs were posted as per the approved plan, signaling to drivers to reduce speed due to ongoing construction. A driver involved in an accident acknowledged that she would have slowed down if she had seen the construction signs. Despite this, she testified that she did not notice any warnings before the incident and only reduced her speed upon spotting a deer. The ruling emphasized that George Lynch did not breach its duty or control the worksite during the accident weekend. The majority decision affirmed summary judgment, stating that contractors are only liable for adhering to their approved traffic control plans and are not expected to take discretionary additional precautions.