Ballenger Paving Co. v. Gaines
| Decision Date | 12 March 1998 |
| Docket Number | No. A97A2534.,A97A2534. |
| Citation | 231 Ga. App. 565,499 S.E.2d 722 |
| Parties | BALLENGER PAVING COMPANY v. GAINES. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Fulcher, Hagler, Reed, Hanks & Harper, David P. Dekle, Augusta, for appellant.
Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., James W. Ellison, Augusta, L. Matt Wilson, Atlanta, for appellee. BEASLEY, Judge.
While observing the use of his employer's saw blades at a road construction site, Timothy Gaines was struck by an automobile that invaded the site. Gaines sued the general contractor, Ballenger Paving Company, for inadequate traffic control at the site. A jury awarded Gaines $2.7 million. Ballenger unsuccessfully moved for a directed verdict and for judgment notwithstanding the verdict, arguing that the intrusion of the automobile, driven by a drunk driver, was an unforeseeable intervening criminal act.
The issues on appeal are (i) whether the driver's actions were the sole proximate cause of the accident; (ii) whether Gaines was a licensee on the site and as such not entitled to recover absent a showing of wilful and wanton misconduct; (iii) whether Ballenger was entitled to a directed verdict on Gaines' claims that Ballenger should have closed the entrance ramp, used overhead flood lights, or used a crash truck; (iv) whether the evidence demanded a finding that Gaines had equal knowledge of the traffic control measures; (v) whether the jury array was illegally constructed; and (vi) whether the trial court erred in admitting into evidence the Manual on Uniform Traffic Control Devices.
1. Proximate cause and Breach of duty.
Ballenger first argues it "was entitled to a directed verdict and judgment notwithstanding the verdict because viewing the evidence in the light most favorable to the plaintiff, the true proximate cause of this accident was Alan Brownley's criminal act of driving under the influence of alcohol and crashing through a clearly delineated barricade after disregarding warning signs." In its third enumeration of error, Ballenger argues that the court should have directed a verdict on Gaines' claims that Ballenger was negligent in failing to close the entrance ramp leading up to the construction site, in failing to use flood lights, and in failing to use a crash truck. Although the first enumeration relates to proximate cause and the third relates to breach of duty, both ignore evidence to the contrary.
A directed verdict or j.n.o.v. should only be granted "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict...."1 " 2
(a) So construed, the evidence showed that the driver Brownley was not intoxicated and that his negligence in not seeing the barrels was a reasonably foreseeable consequence of Ballenger's actions in failing to follow recognized standards of conduct in traffic control.
Shortly after 11:00 p.m. Brownley left a party where he drank beer and consumed pizza, a hot dog, and some chips. He drove his vehicle up the Washington Road on-ramp to I-20. As he looked over his left shoulder to view the traffic with which he intended to merge, he did not see the signs or reflective barrels on the entrance ramp channeling traffic to make a hard left turn to cross over the right lane of I-20 and merge into the only lane of I-20 open (the left lane). He drove through the plastic barrels and struck Gaines.
(1) Ballenger's negligence.
The right lane and the entrance ramp were the site of road reconstruction. Ballenger had contracted with the Department of Transportation to replace the paving and had subcontracted Eaton Construction Company to saw the old paving into squares which Ballenger would remove and replace with new paving. Eaton purchased diamond blades from Norton Construction for the sawing. Eaton invited Norton's representative, Gaines, to visit this worksite to field test new blades that might be faster and more effective with the particular type of paving at that site. When Gaines arrived, he notified Ballenger of his presence.
The site that night was very dark because Eaton did not like to use the floodlights mandated by its subcontract for the protection of people working at the site. By contract and by law,3 Ballenger was responsible for providing adequate traffic control at the site. Even though Ballenger informed Eaton the lack of floodlights was a safety problem for site workers, Ballenger allowed Eaton to use only a small light on the saw.
Ballenger's contract with the DOT also required the barrels serving as channelization devices to have steady burning lights, but on this night only two of the barrels at most had working lights. This may have confused drivers into thinking there was an open thoroughfare between them. This lighting also violated the Manual for Uniform Traffic Control Devices (MUTCD), which is not only the recognized minimum standard for the industry for traffic control devices,4 but was incorporated into the DOT contract for the purpose of protecting both the public and the workers at the site.5 Negligence claims for failure to provide adequate lighting at road construction sites are not uncommon. 6
Beyond the lighting problems, Ballenger failed to follow the recommended procedure for providing an adequate taper lane for merging traffic. At the posted 45 mph speed limit on the ramp, the taper should have been 1,350 feet long, whereas it was only 104 feet. The industry formula for this short length mandated a speed limit of only four mph, but no speed limit under forty-five was posted. Ballenger maintained that the physical characteristics of this site prevented the longer taper required by the MUTCD. Accordingly, an expert witness testified that the ramp should have been completely closed to traffic during the four nights that work occurred. Ballenger claimed that such would have been too disruptive to traffic flow, but conceded that it had recommended such a lane closure to the DOT, and that on at least one night the lane was actually closed for Ballenger's work. Two years after the construction, Ballenger and its expert witness went to the site to set up barrels as they were arranged on the night of the accident. Ballenger found it necessary to close down the ramp for the safety of people at the site.
The expert also testified that the unlit signage leading up to the construction site was inadequate per industry standards. Other witnesses testified that the sharp left turn into the fast lane of I-20 was difficult and dangerous, and that immediately following the accident Ballenger placed the barrels at a softer angle. A water truck on site could have been used as a crash barrier as was done on other sites, but Ballenger refused to provide the manpower for such.
(2) Brownley's intoxication.
Despite the evidence of negligence, Ballenger argues that the true proximate cause of the accident was Brownley's inebriation, and that even if the lighting and other traffic control had been done, or even if the lane had been closed, Brownley in his alcohol-influenced state would have not seen anything and would have crashed through the barricade regardless. Ballenger emphasizes the findings of a test showing Brownley had a blood-alcohol level of .13 grams about one-and-one-half hours after the accident, which exceeded the legal limit for driving.7
This argument assumes the evidence was undisputed Brownley was intoxicated. This is not so. Brownley testified he was not intoxicated, and the first two people to speak face-to-face with Brownley within minutes after the accident testified he exhibited no symptoms of intoxication and they smelled no alcohol. After the accident Brownley ran to get help, which one defense witness testified was consistent with sobriety. The defense toxicologist admitted that eating a heavy starchy meal would delay the absorption of alcohol up to three hours, and therefore the blood alcohol level may have been less than.13 at the time of the accident.
Ballenger's citations to cases holding that intervening unforeseeable criminal acts may break the chain of causation are therefore irrelevant.8 The jury, which also entered the verdict against the defaulting Brownley, may have found that Ballenger was negligent in not closing the ramp or in not having proper lighting or taper length and that Brownley was negligent in failing to maintain a proper lookout. Looking over one's shoulder to prepare to merge can be expected on a freeway entrance ramp.9 While Brownley's failure to discern the unlit construction site surrounded by unlit reflective barrels may have been negligent, it was also foreseeable. The stated purpose of requiring such lighting was to protect workers from passing motorists.
" 10 "Clearly there can be more than one proximate cause of an accident...."11
Watson v. Marshall,12 cited by Ballenger, is distinguishable. In Watson a driver in dense fog did not see various...
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