Ferguson v. Ben M. Hogan Company

• Decision Date: 23 December 1969
• Docket Number: No. HS-69-C-18.,HS-69-C-18.
• Citation: 307 F. Supp. 658
• Parties: Helen FERGUSON and Dave Ferguson, Plaintiffs, v. BEN M. HOGAN COMPANY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

307 F. Supp. 658

Helen FERGUSON and Dave Ferguson, Plaintiffs, v. BEN M. HOGAN COMPANY, Defendant.

No. HS-69-C-18.

United States District Court W. D. Arkansas, Hot Springs Division.

December 23, 1969.

COPYRIGHT MATERIAL OMITTED

Osro Cobb, Little Rock, Ark., and Henry W. Woods, Little Rock, Ark., for plaintiffs.

Wood, Smith & Schnipper, Hot Springs, Ark., for defendant.

OPINION

JOHN E. MILLER,^* Senior District Judge.

This is an action by which plaintiffs, Helen and Dave Ferguson, husband and wife, seek damages from the defendant, Ben M. Hogan Company, for injuries sustained by Helen Ferguson when she fell while crossing Central Avenue in Hot Springs, Arkansas, on February 19, 1969.

Plainitffs alleged that defendant created a dangerous and hazardous condition in a street extending into the crosswalk plaintiffs attempted to use and that defendant negligently failed to protect or warn plaintiffs of the danger, as required by the common law and by the provisions of the contract between defendant and the Arkansas Highway Department.

Defendant denied that it was negligent and specifically alleged that Mrs. Ferguson was negligent in failing to perceive the obvious, in crossing the street in too rapid a manner, in failing to observe warning signals, failing to cross in a controlled area, and otherwise failing to exercise ordinary care for her own safety.

The plaintiffs are citizens and residents of Michigan. The defendant is a corporation organized and existing under the laws of the State of Arkansas. The amount involved is in excess of $10,000, exclusive of interest and costs.

The substantive law of Arkansas is applicable to the issues before the court. The case was tried to the court without a jury. The following shall constitute the findings of fact and conclusions of law of the court, as contemplated by Rule 52(a), Fed.R.Civ.P.

Plaintiffs were regular patrons of the race track at Hot Springs, Arkansas, during the racing season. They arrived in Hot Springs on February 15, 1969, and checked in at the Anthony Motel, which is located several blocks north of the race track on the east side of Central Avenue. On the day of the accident plaintiffs walked south on Central Avenue to the race track, attended seven races, and walked back to their motel room before sunset. They were aware, as a result of walking to the races and driving on Central Avenue, that resurfacing was in progress or incomplete on Central Avenue. Shortly after they reached their motel room, plaintiffs decided to eat their evening meal at the Royal Vista Restaurant, located on the west side of Central Avenue approximately 200 feet southwest of the Anthony Motel. It is undisputed that resurfacing was completed at the crosswalk in front of the Royal Vista Inn, and plaintiffs crossed without difficulty. Upon arriving at the restaurant, Mrs. Ferguson decided that she preferred the Blue Bell Restaurant, also located on the west side of Central Avenue several hundred feet north of the Royal Vista Inn. Plaintiffs then walked to the Blue Bell and found that it was crowded to the extent that immediate service could not be obtained. They then abandoned the prospect of eating at a restaurant and walked south on the sidewalk on the west side of Central, intending to return to their motel room, which was equipped with a kitchenette. Laser Street enters Central Avenue from the east but does not extend westward beyond Central. The Anthony Motel is located on the southeast corner of the intersection. Plaintiffs looked in both directions for traffic, and then proceeded eastward in the south crosswalk to reach their motel. They were approximately midway across Central in the crosswalk when Mrs. Ferguson stumbled and fell, sustaining injury to her right shoulder and knee, a facial laceration and a broken nose.

The defendant, Ben M. Hogan Company, had contracted with the Arkansas State Highway Department to resurface a lengthy portion of Central Avenue. It appears that it is standard procedure among highway contractors to stagger the length of the asphalt strips while resurfacing is in progress in order to permit the flow of traffic to continue and to insure proper union of the edges. This procedure was followed by defendant in its work on Central Avenue, with the result that only the east half of the south crosswalk at the intersection of Central and Laser was resurfaced at the time Mrs. Ferguson fell. The resurfaced portion of the street was approximately 2½ inches higher than the older pavement, and it may be reasonably inferred that Mrs. Ferguson tripped or stumbled on the elevated asphalt, although neither plaintiff testified positively that such was the case. Defendant discontinued laying asphalt from December 21, 1968, to April 7, 1969, in deference to weather conditions and seasonal limitations imposed by the Arkansas Highway Department. There were, however, no warning signs or protective devices in close proximity to the intersection of Central and Laser.

The contract between defendant and the Arkansas State Highway Department provides in part as follows:

"7.1 The Contractor shall provide safeguards, safety devices and protective equipment and take any other needed actions on his own responsibility or as the engineer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract."

"7.9 The Contractor shall provide, erect, and maintain all necessary barricades, suitable and sufficient lights, danger signals, and other signs, provide a sufficient number of watchmen and take all necessary precautions for the protection of the work and safety of the public * * *. Suitable warning signs, illuminated at night by lanterns or flares, shall be provided to mark the places where surfacing ends or is not compacted. All lights for this purpose shall be kept burning from sunset to sunrise.

"The Contractor shall erect warning signs in advance of any place on the project where operations interfere with the use of the road by traffic, and at all intermediate points where the new work crosses or coincides with an existing road."

There is a split of authority as to whether provisions in a public contract as to care to be exercised or precautions to be taken for protection of third persons may be relied upon in an action for damages by a third person against a public contractor.¹ Many well-reasoned decisions hold that liability does not depend on contract but arises out of a legal duty devolving on a contractor not to obstruct or make the highway dangerous for ordinary use under the circumstances. Joshmer v. Fred Weber Contractors, Inc. (Mo.App.1956), 294 S.W. 2d 576; Briscoe v. Worley (1952), 208 Okl. 60, 253 P.2d 145; Smith v. Wilson (Okl.1958), 325 P.2d 421; Kehm v. Dilts (1936), 222 Iowa 826, 270 N.W. 388; Toler v. Hawkins (1940), 188 Okl. 58, 105 P.2d 1041. This view has been held to be especially persuasive in cases of "nonfeasance" as opposed to "misfeasance." McClendon v. T. L. James & Co. (5 Cir. 1956), 231 F.2d 802, and see generally Prosser On Torts, § 99 (3d Ed. 1964).

Arkansas, however, has apparently adopted the proposition that the duty of a public contractor to exercise ordinary care for the safety of the traveling public may arise from and be defined by both the common law and the provisions of a highway contract. Hogan v. Hill (1958), 229 Ark. 758, 318 S.W.2d 580; Hill v. Whitney (1948), 213 Ark. 368, 210 S.W.2d 800. Stated simply, a highway contractor, by entering into a contract with a public authority, places himself in such a relation toward the traveling public, that the law imposes upon him the duty to exercise reasonable care to act in such manner that the traveling public will not be injured. This approach is logically sound, as while it may be doubted that members of the traveling public actively rely on the public contract, the contractor is engaging in an affirmative course of conduct for his own economic benefit which may affect public safety, and injury to those who come in contact with his finished or unfinished work is certainly to be anticipated if it is negligently done. This view is also supportable regarding "nonfeasance" as the public authority may be expected to rely on the contractor who breaches his contract by doing nothing at all, and such reliance may be expected to endanger members of the traveling public by preventing the public authority from taking precautions for their protection.

It is well settled that, apart from the provisions of a public contract, a legal duty rests on a public highway contractor to exercise reasonable care for the safety of members of the general public while they travel over a road on which he is working, which duty is nondelegable. Schwarcz v. Charlton County (1955), 211 Ga. 923, 89 S.E.2d 881; Bressingham v. City of New York (Sup., 1949), 138 N.Y.S.2d 57, aff'd 286 App. Div. 811, 143 N.Y.S.2d 621; Brinkley v. Gallahar (1962), 50 Tenn.App. 129, 359 S.W.2d 857; Strakos v. Gehring (Tex. 1962), 360 S.W.2d 787, reversing Gehring v. Strakos, Tex.Civ.App., 345 S.W. 2d 764, on other grounds. Accordingly, the contractor who fails to guard, or maintain proper barriers, lights, or other warning signals, at unsafe places near the work of construction or repair of a highway may be held liable for injuries resulting therefrom. Seregos v. C. W. Good, Inc. (3 Cir. 1952), 193 F.2d 741; Breedon v. White (1945), 62 Ariz. 256, 156 P.2d 904; Holland v. Phillips (1956), 94 Ga.App. 361, 94 S.E.2d 503; O'Brien v. Musfeldt (1951), 345 Ill.App. 12, 102 N.E.2d 173; State Contracting & Stone Co. v. Fulkerson (Ky.1956), 288 S.W.2d 43; Eidson v. Dean Const. Co. (Mo.App.1950), 233 S.W.2d 820, 825; Carson v. Dobson Bros. Const. Co. (1967), 181 Neb. 287, 147 N.W.2d 797; C. C. T. Equipment Co. v. Hertz Corp. (1962), 256 N.C. 277, 123 S.E.2d 802; Moore v. Geiger (1966), 6...