Arreguin-Leon v. Hadco Constr. LLC

• Decision Date: 13 December 2018
• Docket Number: No. 20161092-CA,20161092-CA
• Citation: 438 P.3d 25
• Court: Utah Court of Appeals
• Parties: Noe ARREGUIN-LEON, Appellee, v. HADCO CONSTRUCTION LLC, Appellant.

438 P.3d 25

Noe ARREGUIN-LEON, Appellee,
v.
HADCO CONSTRUCTION LLC, Appellant.

No. 20161092-CA

Court of Appeals of Utah.

Filed December 13, 2018

Karl M. Tilleman, Robert L. Janicki, Salt Lake City, and Michael L. Ford, Salt Lake City, Attorneys for Appellant

Troy L. Booher, Beth E. Kennedy, Leonard E. McGee, Salt Lake City, and Peter R. Mifflin, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.

Opinion

MORTENSEN, Judge:

438 P.3d 28

¶ 1 Working on a ladder involves certain inherent risks. Working on a ladder on the shoulder of Utah’s largest interstate freeway magnifies those risks. In this series of unfortunate events, a car crash into a construction site knocked Noe Arreguin-Leon (Plaintiff) off a ladder and caused him to sustain serious bodily injury. Plaintiff sued Hadco Construction LLC (Hadco) for negligently failing to implement a proper traffic control plan, which purportedly would have protected against cars entering the construction site. At trial, the jury awarded Plaintiff $2.9 million in damages and found Hadco partially responsible for Plaintiff’s injuries. Hadco appeals, and we reverse and remand for a new trial.

BACKGROUND

The Accident

¶ 2 The Utah Department of Transportation (UDOT) contracted with Hadco to build a new stretch of road on I-15 (the Corridor). Hadco subcontracted with Highway Striping & Signs (HSS) to install all road signs along the Corridor. As principal contractor of the Corridor, Hadco was responsible for implementing a traffic control plan to protect the construction workers but failed to do so. On the day of the accident, because Hadco had provided them no protection from traffic, the construction workers parked their semitrailer behind the work site in an attempt to safeguard themselves while installing a sign.

¶ 3 Plaintiff, who was employed by HSS, worked on the Corridor. He was atop a ladder, installing an exit sign, when a driver (Driver), who had fallen asleep at the wheel, suddenly veered off course, drove into the construction site, and crashed into Plaintiff’s ladder.¹ Plaintiff fell from the ladder and sustained significant injuries. After resolving his claims against Driver, Plaintiff brought suit against Hadco for negligently failing to implement a proper traffic control plan.

The Lawsuit

¶ 4 During pre-trial discovery, Plaintiff disclosed a traffic engineer as an expert (Expert). Plaintiff specified that Expert would testify regarding Hadco’s violation of five engineering practices, regulatory standards, or contractual provisions, including that: (1) no traffic control (warning signs, barrels, etc.) was in place at the accident site; (2) HSS had placed vehicles near the accident site in violation of a UDOT standard known as a "work clear zone"; (3) HSS customarily placed its vehicles on the side of the road to protect workers, and if that were the case, a UDOT approved traffic control plan should have been designed to close the shoulder in conformance with "TA-5," a regulatory standard governing how to close the shoulder of a highway; (4) Hadco knew or should have known that HSS would be working at the accident site on the day of the incident, and therefore should have taken corrective action; and (5) no traffic control plan for the accident site had been designed by a professional engineer or approved by UDOT.

¶ 5 Because Hadco did not provide a traffic control plan specific to the Corridor, Expert did not base any opinion on an actual plan. Plaintiff disclosed that Expert arrived at his opinions by visiting the accident site and reviewing "(1) UDOT standard plans and drawings, (2) the Manual on Uniform Traffic Control Devices (2003 ed.), and (3) information provided by Plaintiff’s counsel, which consisted of deposition transcripts, the police report, pictures, subcontract agreements, and daily traffic control plan inspections." Plaintiff’s counsel did not disclose that Expert would offer trial testimony regarding causation.

438 P.3d 29

¶ 6 In lieu of having Expert submit an expert report, Hadco elected to depose and cross-examine Expert on the five disclosed traffic-control opinions, see supra ¶ 4. During the deposition, Expert explained that Hadco should have closed the shoulder. He further explained that Hadco should have installed a taper, a buffer zone, signs, and barricades. At the conclusion of the examination, Hadco’s counsel asked Expert, "Do you have any other opinions in this case that we have not talked about today?" Expert responded, "No," and asked to review the transcript, but he did not correct or add anything to his deposition testimony.²

¶ 7 After Expert’s deposition—but before trial—Hadco provided Plaintiff with a supplemental disclosure, containing "a packet ... consisting of Hadco’s daily traffic control plans ... and copies of UDOT standard drawings." The supplemental disclosure did not directly or specifically address the Corridor. Rather, the disclosure contained UDOT’s single-page standard plan for a lane closure. Hadco also retained a traffic control expert "to rebut [Expert’s] five disclosed traffic-control opinions," but did not retain an expert "to testify on the issue of whether Hadco’s conduct caused Plaintiff’s injuries because Plaintiff had not disclosed an expert on that issue."

The Trial

¶ 8 At trial, Hadco’s primary defenses were that Driver—not Hadco—caused Plaintiff’s injuries, and that Hadco was unaware that HSS was working on the Corridor on the day of the accident. The jury heard undisputed evidence, from Hadco’s Director of Operations and Hadco’s own expert witness, that (1) the purpose of traffic control plans is to protect workers from traffic, (2) it was Hadco’s responsibility to implement a traffic control plan for the Corridor, and (3) Hadco did not implement any plan.

¶ 9 Expert testified regarding the five disclosed traffic-control opinions. Plaintiff then asked Expert to give his opinion on whether Hadco’s failure to implement a traffic control plan caused the accident and Plaintiff’s injuries. Hadco’s counsel immediately objected to the testimony regarding causation for three reasons: (1) Plaintiff had not disclosed that Expert would offer any opinions regarding causation, (2) Expert had not disclosed any data or information upon which he allegedly relied to formulate his surprise causation trial opinion, and (3) Expert testified at his deposition that he had no opinions in the case beyond those discussed at his deposition, which did not include any opinion relating to causation. The following bench conference ensued:

438 P.3d 30

Hadco’s counsel: Seems to me like this testimony is going toward causation—would traffic control have prevented the accident—and it goes beyond any opinion that he’s ever disclosed in this case. There’s a list of his items of testimony, and he doesn’t touch on that at all.

Plaintiff’s counsel: Your Honor, [Expert] was deposed in this case. [Hadco’s counsel] had every opportunity to ask any question he wanted, and—he’s not limited to the initial disclosure. If he had—if [Hadco’s counsel] had elected a report, he would be limited to the contents of the report, but because a deposition has been elected, [Expert] is not so limited.

Hadco’s counsel: That’s not correct, your Honor.

Plaintiff’s counsel: And—and there were documents provided to [Expert] after (inaudible).

Hadco’s counsel: Then he needs to supplement his disclosure.

The court: Your objection is noted and is, frankly, overruled.

Hadco’s counsel: Can I make a record—a record on this? I think it’s very important.

The court: This record is the record here now.

¶ 10 Expert went on to testify that if the required traffic control plan had been implemented, "[t]here might have been an accident still. There’s no question about that. I don’t think the accident would have taken place where this happened" and therefore, Plaintiff’s injury would not have occurred. Expert then explained that the traffic control plan required Hadco to place barrels over nearly 900 feet around the work site. To identify where Driver fell asleep, Expert relied upon Hadco’s incident report, which stated that Driver fell asleep about 200 yards from the worksite. Expert noted that this was "within that 900-foot area" where there should have been barrels, and if Hadco had implemented the standard plan, he "would fully expect" that Driver would have hit "at least one, if not more, of these plastic barrels."

¶ 11 Expert further opined that, based on his own experience with hitting barrels, Driver would have awakened if he hit a barrel. As Expert put it, "[t]here’s a hellacious racket that erupts when you hit one of these things. ... they make quite a noise. And so, had this area been, in fact, barricaded, as was suggested by the standard drawing, this driver would have been aware immediately upon impact of one of those barrels."

¶ 12 Expert then described what would have happened after Driver awakened on impact, based upon his professional training and experience. First, he explained that "normal perception, judgment, reaction time is about 2.5 seconds. That’s the average that traffic...