Johnson v. Department of Transp.

• Decision Date: 26 August 2004
• Docket Number: No. 20030142-CA.,20030142-CA.
• Parties: Craig JOHNSON, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Granite Construction Company of California dba Gibbons & Reed Company, and John Does I-IV, Defendants and Appellee.
• Court: Utah Court of Appeals

98 P.3d 773

2004 UT App 284

Craig JOHNSON, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Granite Construction Company of California dba Gibbons & Reed Company, and John Does I-IV, Defendants and Appellee.

No. 20030142-CA.

Court of Appeals of Utah.

August 26, 2004.

Stephen P. Horvat, Anderson & Karrenberg, Salt Lake City, and Erik M. Ward and Lindy W. Vandyke, Gridley Ward & Shaw, Ogden, for Appellant.

Stephen J. Trayner and H. Scott Jacobson, Strong & Hanni, Salt Lake City, for Appellee.

Before BILLINGS, P.J., BENCH, Associate P.J., and THORNE, J.

OPINION

BENCH, Associate Presiding Judge:

¶ 1 Craig Johnson appeals the trial court's grant of summary judgment in favor of the Utah Department of Transportation (UDOT). We reverse and remand.

BACKGROUND¹

¶ 2 In the early morning hours of September 14, 1996, Craig Johnson was driving southbound on Interstate 15. As Johnson traveled over a section of freeway that was undergoing maintenance, the front left tire of his vehicle entered a twelve- to eighteen-inch-deep cutout in the pavement. Johnson lost control of his vehicle, which subsequently rolled through two more cutouts of similar depth. Johnson suffered permanent injury as a result of the accident.

¶ 3 The road maintenance, joint repair, and slab replacement was performed by Granite Construction Company (Granite) pursuant to a contract it had with UDOT. Granite assumed a contractual duty to implement a traffic control plan designed by an unidentified UDOT employee. The traffic control plan channeled traffic around the work area in order to preserve the safety of motorists and maintenance workers.

¶ 4 As part of the traffic control plan, Dyke LeFevre, UDOT's Region One Director, decided Granite would use barrels to separate the construction zone from the nearest travel lane rather than the concrete barriers customarily used when cutouts deeper than six inches are required. In reaching this decision, LeFevre relied upon prior conversations with the Federal Highway Administration (FHA) concerning other projects, and brief conversations with UDOT's Deputy Director, which did not directly address whether to use barrels or barriers. Safety studies and cost-benefit reports were neither prepared nor relied upon during the decision-making process. The FHA reviewed and approved the traffic control plan.

¶ 5 In a series of meetings and correspondence, Granite and the UDOT Project Engineer assigned to the road maintenance project expressed concerns over the degree of safety provided by the barrels. They requested that the traffic control plan be modified to employ barriers rather than barrels. In response to Granite's first detailed proposal to change the traffic control plan, UDOT informed Granite that "[LeFevre] does not feel that we could get approval from the [Transportation] Commission." UDOT went on to explain that "for us to justify the proposal for a change in the traffic control plan ... the net cost of the change would have to satisfy two conditions: 1) be in the range of $450,000 or below and 2) time savings must be at least a 50 day time saving [s]." A revised proposal was submitted, to which UDOT did not respond. LeFevre testified in his deposition that he could authorize the change only if he could keep the project within budget and on time.

¶ 6 Johnson filed suit against UDOT alleging negligence in the design and implementation of the traffic control plan. Specifically, Johnson asserted that UDOT was negligent in designing the traffic control plan to use barrels rather than barriers to separate the maintenance area from traffic, and authorizing Granite to open two lanes of traffic during off-peak hours, contrary to the traffic control plan. Johnson also claimed that UDOT was negligent in permitting various other deviations from the traffic control plan on the night of his accident including placing several barrels inside the cutouts rather than between the cutouts and traffic, failing to provide a white line between the cutouts and traffic lanes, failing to keep a buffer zone of two to three feet between the striping and the barrels, and failing to replace some missing barrels. ¶ 7 UDOT moved for summary judgment arguing that: (1) UDOT did not have any duty to implement or monitor the traffic control plan, and (2) UDOT could not be held liable for the negligence of an independent contractor. Additionally, UDOT argued that even if it could be held liable, it would be immune from liability in this instance due to the "discretionary function" and "negligent inspection" exceptions to the Governmental Immunity Act. See Utah Code Ann. § 63-30-8 (1997). The trial court, adopting UDOT's reasoning, granted summary judgment in favor of UDOT. Johnson appeals.²

ISSUES AND STANDARDS OF REVIEW

¶ 8 Johnson claims that the trial court incorrectly granted UDOT's motion for summary judgment by premising its grant on a number of faulty legal conclusions. Johnson argues that the contract between UDOT and Granite did not protect UDOT from liability because UDOT could not delegate its duty to provide safe highways. Johnson also maintains that UDOT may be liable even though Granite was an independent contractor. Further, Johnson contends that neither the "discretionary function" nor the "negligent inspection" exceptions to the Governmental Immunity Act shield UDOT from liability.

¶ 9 Summary judgment is proper when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). In reviewing a grant of summary judgment, we view "the facts in a light most favorable to the losing party below." Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634, 636 (Utah 1989). "Because the question of whether summary judgment is appropriate is a question of law, we accord no deference to the trial court." Cannon v. Travelers Indem. Co., 2000 UT App 10,¶ 14, 994 P.2d 824 (quotations and citation omitted); see also Goodnow v. Sullivan, 2002 UT 21,¶ 7, 44 P.3d 704

.

ANALYSIS

¶ 10 UDOT solicited bids for the maintenance project based on specifications, provided by UDOT, including a traffic control plan. UDOT then awarded the contract to Granite. The contract provided that Granite "agrees to furnish all labor and equipment; to furnish and deliver all materials not specifically mentioned as being furnished by the Department and to do and perform all work ... for the approximate sum of [$4,998,249.00]." The contract also required Granite to "provide, erect, and maintain barriers." The project required complete removal and replacement of multiple sections of the freeway. During the project, the twelve- to eighteen-inch-deep cutouts in various lanes were to be separated from traffic according to the traffic control plan. Any alterations of the traffic control plan required UDOT approval.

¶ 11 Johnson asserts that UDOT had a duty to prevent unsafe conditions during maintenance performed by an independent contractor on three grounds: (1) the nondelegable duty of UDOT to ensure highway safety, (2) the "retained control" doctrine, and (3) the "peculiar risk" or "inherently dangerous work" doctrine. UDOT counters that it had no responsibility for highway safety associated with the project since, under the terms of the contract, Granite accepted responsibility for all work, including implementation of the traffic control plan. Further, UDOT argues that because Granite was an independent contractor of UDOT, rather than its "agent, servant, or employee," UDOT cannot be held liable for the physical harm caused to Johnson, and asserts that the "retained control" doctrine is inapplicable under the present facts. UDOT also contends that the "peculiar risk" or "inherently dangerous work" doctrine has never been adopted by the Utah courts and should not be adopted here.³

I. UDOT's Responsibilities Under the Contract and the Delegability of UDOT's Duty to Ensure Highway Safety

¶ 12 UDOT argues that its contract with Granite absolved it of any duty to ensure the safety of conditions associated with the project. UDOT's argument fails under both principles of contract law and nondelegability of core governmental functions. "[A] party who delegates his duties under a contract to a third person is not relieved of his responsibilities, but rather remains ultimately responsible to the party with whom he contracted for guaranteeing the successful execution of the contractual duties." First Am. Commerce Co. v. Washington Mut. Sav. Bank, 743 P.2d 1193, 1195 (Utah 1987). Thus, the present contract could create a new duty of care in Granite for public safety, but the creation of Granite's contractual duty did not relieve UDOT of its preexisting statutory duty to provide safe highways.

¶ 13 The Utah Supreme Court has explained that "[c]ore functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution." Salt Lake City v. Ohms, 881 P.2d 844, 849 (Utah 1994). The inquiry focuses on whether the function or power that the branch of the government seeks to delegate involves a core function or power. See id. Examples of nondelegable functions and powers include: the supreme court's duty to discipline an erring attorney, see In re Bridwell, 25 Utah 2d 1, 474 P.2d 116, 116 (1970)

; legislative functions such as zoning and rezoning, see Sandy City v. Salt Lake County, 827 P.2d 212, 221 (Utah 1992); and legislative establishment of crime definitions and penalties, see State v. Green, 793 P.2d 912, 916 (Utah Ct.App.1990). Thus, the proper inquiry here is whether the function delegated to Granite should be considered a core governmental function. See Ohms, 881 P.2d at 849.

¶ 14 Utah Code section 72-1-201 creates UDOT and provides that UDOT shall:

(1) have the general responsibility for planning, research, design, construction, maintenance, security, and safety of state transportation systems;

....

(4) plan, develop, construct,

...