Bailey v. M.B.C. Constr. Co.
| Decision Date | 18 February 2020 |
| Docket Number | No. A-19-156,No. A-19-157.,A-19-156,A-19-157. |
| Parties | TAMRA J. BAILEY, APPELLANT, v. M.B.C. CONSTRUCTION CO., INC., APPELLEE. TONY SHARP, APPELLANT, v. M.B.C. CONSTRUCTION CO., INC., APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeals from the District Court for Douglas County: JAMES T. GLEASON, Judge. Reversed and remanded for further proceedings.
Greg Abboud and Kathleen Person, of Abboud Law Firm, for appellants.
Raymond Walden, David M. Woodke, and Earl G. Green III, of Woodke & Gibbons, P.C., L.L.O., for appellee.
Tamra Bailey and Tony Sharp brought lawsuits against M.B.C. Construction Co., Inc. (M.B.C. Construction), alleging they sustained damages as the result of a motor vehicle accident that occurred within a construction site maintained by M.B.C. Construction on 96th Street near its intersection with Adams Street in Omaha, Nebraska. Following a jury trial, verdicts were rendered in favor of M.B.C. Construction. Bailey and Sharp have appealed. For the reasons set forth herein, we find that the district court erred in its ruling that expert testimony and evidence regarding an Occupational Safety and Health Administration (OSHA) violation would not be submitted to, or considered by, the jury and in failing to instruct the jury on its application. Accordingly, we reverse, and remand for further proceedings.
These consolidated actions arose out of an automobile accident that occurred at night on 96th Street near its intersection with Adams Street in Omaha. Sharp was a passenger in the vehicle driven by Bailey. At the time of the accident, 96th Street was under construction. Bailey attempted to turn onto 96th Street from the parking lot of the Willow Park Apartment Complex and, instead of turning onto an accessible lane of traffic, she turned and proceeded into the construction zone. Bailey crashed into a paver that was left by M.B.C. Construction in the construction zone rendering her car inoperable due to front-end damage. Both Bailey and Sharp sustained injuries resulting from the accident.
At trial, testimony for Bailey and Sharp was provided by Bailey; Sharp; Richard Bishop, a city inspector; George Lynch, an accident reconstruction specialist; and Terry Stentz, an expert witness regarding OSHA. Jeff Brown, M.B.C. Construction's general manager and project manager, testified on behalf of M.B.C. Construction.
The following facts were established through testimony by Bailey and Sharp. Around 9:30 or 10 p.m. the night before the accident, Bailey drove herself and Sharp to a local bar in Bailey's automobile. After arriving at the bar, Bailey proceeded to the area of the bar where a band was playing, while Sharp went to a different area to play pool. During the course of the night, Sharp saw Bailey with a beer in her hand from time to time. Bailey testified she had two beers that night while at the bar but was unsure how much Sharp drank.
Sometime between 12:30 and 1:00 a.m., Bailey and Sharp left the bar. When they left, Sharp felt a "little bit" intoxicated and Bailey drove. Bailey testified that she decided to take 96th Street south to Harrison Street in order to check on her daughter who lived in the Willow Park Apartment Complex located on the west side of South 96th Street between Park Drive and Harrison Street. Once Bailey was on 96th Street, she headed south. At that time, 96th Street consisted of four lanes of traffic, two going south and two going north. The southbound lanes were under construction and closed to traffic and the northbound lanes were temporarily reconfigured so there was one lane for southbound traffic and one lane for northbound traffic. To access the parking lot for the Willow Park Apartments, Bailey had to turn right from the temporary southbound lane of 96th Street; cross over the western lanes of South 96th Street, which were under construction; and then enter the parking lot.
After entering the parking lot and seeing that her daughter's vehicle was parked there, Bailey exited the parking lot. Because she intended to again proceed south on 96th Street, Bailey turned right after exiting the parking lot and attempted to enter the temporary, accessiblesouthbound lane but entered into the construction zone instead. After travelling south on 96th Street for about a quarter of a mile at a speed she described as 25 miles per hour, Bailey suddenly saw "something very large" blocking the road in front of her. Bailey testified that she did not see the object, which she later learned was a construction paver, until she was "maybe eight to ten feet" from it. Bailey testified that her car headlights were on and she was able to see the roadway "okay." Nevertheless, once she finally identified the object, Bailey testified she was unable to stop her car in time to avoid colliding with the object, which was a construction paver. Much of the testimony then centered on how Bailey entered the construction zone, whether it was properly barricaded or contained sufficient warnings, and how the accident ensued.
After the accident, Bailey laid down outside the driver side door of her car, complained that she hurt, and told Sharp, "I just want to go home." Sharp called his friends to come pick them up. Although both Bailey and Sharp testified they left the bar sometime around 1 a.m. and acknowledged the accident site was only 10 to 15 minutes from the bar, they acknowledged they did not contact anyone about the accident until after 2 a.m., and Sharp testified he had "no clue" what happened between the time of the accident and the time he made the first phone call at 2:17 a.m. When asked why he did not call the police or emergency services, Sharp testified it did not occur to him to call because he did not think he needed to call the police after a single vehicle accident. It was not until later that morning that Sharp ultimately called the police to report the accident.
Bishop, the city inspector, testified that he was responsible for inspecting the project construction site to observe construction activities, document those activities, and to ensure the construction activities met the standards and specifications set forth in the Standard Specifications for Public Works Construction 2003 3rd Edition adopted by the City of Omaha (City Standards). Bishop testified he was required to be on the construction site daily any time M.B.C. Construction was there and was responsible for notifying M.B.C. Construction if he noticed any condition which departed from the City Standards. Bishop testified that there are specific city standards which govern barricades for city construction projects. He testified that the specific requirements for placement and types of barricades for this project were dictated by the project's traffic control plan; the City of Omaha Barricading Standards, Specification Methods, and Materials (City Barricade Standards); and the Manual of Uniform Traffic Control Devices (MUTCD), all of which are incorporated into the City Standards at section 7.08. While looking at exhibit 66, a photograph depicting barricades at the intersection of the Willow Park Apartment Complex and southbound 96th Street, Bishop agreed that the barricades did not appear to be placed correctly.
Brown testified that he was general manager and project manager for M.B.C. Construction in connection with this project and his responsibilities included ensuring that M.B.C. Construction properly adhered to the project's traffic control plan, which plan included placement of traffic control devices. Brown testified that it retained Todco as a subcontractor to supply, place, and inspect barricades and barrels according to the traffic control plan.
Brown opined that the traffic control plan for the project was created in accordance with the City Standards which incorporated the City Barricade Standards and the MUTCD. He testified that a hierarchy existed among the plan and various rules in relation to dealing with any conflicts or inconsistencies therein. Specifically, Brown opined that the traffic control plan trumped all other regulations, including the MUTCD and OSHA regulations, and further, that the City Barricade Standards controlled specifications for barricades on the project and not OSHA.
Brown contradicted Lynch's testimony claiming the traffic control plan, which governed the project, did not require that barricade or warning devices be placed in front of the paver and were not required by the City.
As it relates to barricades protecting the construction zone generally, Brown agreed M.B.C. Construction was contractually obligated to create and maintain access to private parking areas along 96th Street, including the Willow Park Apartment Complex. He further acknowledged that, in relation to these access roads, the plan only required "road access" barricades being placed at the very north and south ends of the project. He testified that M.B.C. Construction did set up "road closed" barricades immediately south of the Willow Park Apartment access drive and did acknowledge barricading responsibilities at these sites to keep traffic exiting from private drives, like Willow Park, from turning...
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