McCorvey v. Utah State Dept. of Transp., Nos. 910054

CourtSupreme Court of Utah
Writing for the CourtHALL; HOWE; ZIMMERMAN; STEWART; DURHAM, J., concurs in the concurring and dissenting opinion of STEWART
Citation868 P.2d 41
PartiesDaniel B. McCORVEY, Plaintiff, v. UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson Construction Company, a Utah corporation, Defendants. Daniel B. McCORVEY, Plaintiff and Appellant, v. UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson Construction Company, a Utah corporation, Defendants and Appellees. Daniel B. McCORVEY, Plaintiff and Appellee, v. UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson Construction Company, a Utah corporation, Defendants and Appellants.
Decision Date10 November 1993
Docket Number910069 and 910084,Nos. 910054

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868 P.2d 41
Daniel B. McCORVEY, Plaintiff,
v.
UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson
Construction Company, a Utah corporation, Defendants.
Daniel B. McCORVEY, Plaintiff and Appellant,
v.
UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson
Construction Company, a Utah corporation,
Defendants and Appellees.
Daniel B. McCORVEY, Plaintiff and Appellee,
v.
UTAH STATE DEPARTMENT OF TRANSPORTATION and LeGrand Johnson
Construction Company, a Utah corporation,
Defendants and Appellants.
Nos. 910054, 910069 and 910084.
Supreme Court of Utah.
Nov. 10, 1993.

Page 42

David R. Olsen and Jesse C. Trentadue, Salt Lake City, for McCorvey.

R. Paul Van Dam, Atty. Gen. and Annina M. Mitchell, Asst. Atty. Gen., Salt Lake City, for UDOT.

HALL, Chief Justice:

This is a consolidated appeal from a jury verdict entered in favor of plaintiff Daniel B. McCorvey in a personal injury action brought against the Utah Department of Transportation ("UDOT") and LeGrand Johnson Construction Company ("LeGrand"). 1 We affirm.

I. FACTS

"Where evidence is in conflict in a jury trial, we assume that the jury believed those facts that support its verdict, and we view the facts and the reasonable inferences that arise from those facts in a light most supportive of the jury's verdict." 2 We recite the facts accordingly.

On August 7, 1986, McCorvey was paralyzed when his car left the road and rolled in the median on Interstate 15 near Cove Fort, Utah. The accident occurred in a construction area where the road was being resurfaced by a process referred to as "chip sealing." Chip sealing involves applying an oil-based emulsion onto the highway and then placing gravel on top of the emulsion. The gravel is then pressed into the emulsion by huge rollers. Next, the surface is swept, or "broomed," to remove any excess gravel. Finally, normal highway traffic is used to further imbed the gravel into the new surface. During the process, excess chips are used so that the gravel will be as dense as possible.

UDOT, which maintains Utah's interstate highways, retains independent contractors to do much of the necessary highway repair. LeGrand was awarded the contract to resurface the project at issue in this case. Although LeGrand was responsible for the actual resurfacing on the project, UDOT supplied the traffic control plan and was ultimately responsible for motorist safety. 3

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The 15-mile construction project began approximately 10 miles north of the accident site in the two southbound lanes. Under the traffic control plan, one lane would be closed during the chip spreading process. The plan called for placement of two "early warners," large electric signs with arrows directing traffic from one lane into another, that would guide traffic into the lane that was not being chipped. The early warner signs would have "speed limit 25 miles per hour" signs affixed to them. Several "no passing" signs would line the project, and "loose gravel" signs would greet motorists at the beginning of the project.

At the time the accident occurred, LeGrand had resurfaced most of the 15 miles. However, it neglected to broom the right-hand outside lane near the accident site. Consequently, the right lane was still covered with excess gravel that was in turn thrown into the left inside lane by passing motorists. The left lane, which was already broomed, still had a significant amount of gravel on it, especially close to the median to the left of the lane.

On the day of the accident, McCorvey was traveling south on I-15 with a friend, Paul Page, in a 1986 Honda Civic. McCorvey testified that he first encountered construction several miles north of the accident scene where LeGrand was resurfacing a rest area. He slowed and passed through that area without event. He was in the left lane resuming normal highway speed when he hit a section of road that was covered with thick gravel. When he encountered the gravel, he downshifted and reduced his speed to approximately 45 miles per hour.

McCorvey began to lose control of the Honda almost immediately. He testified that the left lane had deep grooves in which it was possible to travel but that ridges of gravel lined the grooves, making it difficult to maneuver. The unswept right lane was worse, with gravel across the entire lane. The Honda's tires were throwing excess chips from the road up into the air. As McCorvey proceeded south, a twelve-passenger Suburban van approached him from behind. The van was driven by P. Wayne Wright and contained four adults and six children.

Gravel thrown by the Honda's tires broke the windshield of the Suburban, prompting Wright to attempt to pass the Honda in the right-hand outside lane. As Wright came abreast of McCorvey, the Suburban threw up a large amount of gravel, showering the Honda on its right side. McCorvey testified that he hit a big patch of gravel and lost control of his car as he attempted first to accelerate to stay ahead of the Wrights and then to slow down and drop back.

The Honda left the highway and entered the median, traveling between 52 and 62 miles per hour. McCorvey panicked and attempted to steer back onto the road, which caused the car to roll at least twice. McCorvey and his passenger were ejected, and both suffered paralyzing injuries.

All of the witnesses who were traveling the same stretch of road at the time of the accident testified that both lanes were open for travel and that they had not seen any traffic control signs for several miles. Moreover, McCorvey's testimony indicated that LeGrand employees may have placed "do not pass" and early warner signs on the road after the accident to make it appear as if they were there when the crash occurred.

The witnesses also agreed that there should have been more control of the project so that cars could not pass and that the right lane should have been closed. All the cars in which the witnesses were traveling suffered chipped paint and broken windshields from flying gravel, and all the drivers were extremely irate about the road conditions.

McCorvey's experts testified that the crash was caused by the excess gravel on the road and the inadequate signing on the project. One expert cited the combination of contradictory signing, such as the use of both 25- and 55-mile-per-hour speed limit signs in the construction zone, 4 the prior "no passing" signs, and the fact that both lanes were open to traffic as the cause of the accident. The lack of warning and guidance on the dangerous road caused drivers to react in ways that

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might otherwise be considered unreasonable to avoid gravel damage to their cars. 5

Although there was testimony that not all of the required signs were actually in place that day, McCorvey's traffic engineering expert testified that even if all the signs had been placed correctly, UDOT's traffic control plan was inadequate and did not comply with federal safety guidelines. The plan failed to provide drivers with sufficient warning of the hazards presented by the loose gravel. Also, it failed to physically close off the outside right lane until it had been swept, and it did not impose a speed slower than the 55-mile-per-hour speed posted for the unswept lane. On the other hand, defendants' experts testified that the plan was adequate and that the accident was caused by driver error on McCorvey's part.

The jury returned a verdict in favor of McCorvey and attributed fault for the accident as follows: LeGrand, 50 percent; UDOT, 28 percent; McCorvey, 10 percent; and Wright, 12 percent. UDOT's proportionate share of liability of $1,517,800 was reduced to $250,000 pursuant to Utah Code Ann. § 63-30-34, which limits the amount of damages recoverable against the state. 6 UDOT moved for a new trial, claiming that the evidence was insufficient to support the verdict against it. The trial court denied the motion.

McCorvey appeals that portion of the final judgment reducing his recovery against UDOT to $250,000. He claims that the damage recovery limit is unconstitutional as applied to him. UDOT appeals from the denial of its motion for a new trial, claiming that the evidence was insufficient to support the jury's finding that UDOT proximately caused McCorvey's injury, and that the "sudden peril" instruction given to the jury constituted prejudicial error. For ease of organization, we first address the issues raised by UDOT's appeal.

II. SUFFICIENCY OF THE EVIDENCE

A trial court's denial of a motion for a new trial based on a claim of insufficiency of the evidence will be reversed "only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict." 7 To support this claim on appeal, "the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." 8

UDOT does not dispute the jury's finding that it was negligent. Instead, it claims that no reasonable jury could conclude that its negligence was a proximate cause of McCorvey's injury. It claims that its actions were not the proximate cause of McCorvey's injury because (1) omissions in the traffic control plan were not the substantial causative factor leading to the accident, and (2) even if UDOT's negligence was a substantial causative factor, the negligent actions of LeGrand, McCorvey, and Wright were intervening forces that became the superseding cause of the accident. We address each allegation in turn.

UDOT first asserts that even if its traffic control plan was substandard, the flawed plan was not the substantial causative factor leading to the accident. Its prior negligence in adopting the traffic control plan, UDOT claims, was minimal and insignificant in comparison to the other parties' acts, and cannot be seen as the proximate cause of the accident.

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Generally, proximate cause is an...

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31 practice notes
  • Jenkins v. Jordan Valley Water Conservancy Dist., Case No. 20100400-CA
    • United States
    • Court of Appeals of Utah
    • January 6, 2012
    ...45specific problems, or to place 'caps' on the amount of damages," as was upheld in McCorvey v. Utah Department of Transportation, 868 P.2d 41 (Utah 1993). See Laney, 2002 UT 79, ¶ 70; see also McCorvey, 868 P.2d at 47-48 (holding that the damage cap on claims against governmental enti......
  • Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., No. 970345
    • United States
    • Supreme Court of Utah
    • March 5, 1999
    ...section 11 is transgressed by the enactment of governmental immunity. For example, in McCorvey v. Utah State Department of Transportation, 868 P.2d 41, 47-48 (Utah 1993), we found that section 63-30-34(1), which imposes a cap on damages recoverable from governmental entities, did not violat......
  • Lee v. Gaufin, Nos. 20995
    • United States
    • Supreme Court of Utah
    • November 30, 1993
    ...is less than meets the eye, at least where legislation impinging on recovery for personal injuries is at issue. See McCorvey v. Utah, 868 P.2d 41 (1993) (Stewart, J., concurring and dissenting, joined by Durham, J.) (arguing that damage cap on personal injury recoveries against state cannot......
  • Lyon v. Burton, No. 950515
    • United States
    • Supreme Court of Utah
    • January 19, 2000
    ...limits or caps on compensatory damages in three cases. See Bott v. DeLand, 922 P.2d 732 (Utah 1996); McCorvey v. State Dep't of Transp., 868 P.2d 41 (Utah 1993); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989). Two cases have held the damage cap in Utah Code Ann. § 63-30-34 unconst......
  • Request a trial to view additional results
31 cases
  • Jenkins v. Jordan Valley Water Conservancy Dist., Case No. 20100400-CA
    • United States
    • Court of Appeals of Utah
    • January 6, 2012
    ...45specific problems, or to place 'caps' on the amount of damages," as was upheld in McCorvey v. Utah Department of Transportation, 868 P.2d 41 (Utah 1993). See Laney, 2002 UT 79, ¶ 70; see also McCorvey, 868 P.2d at 47-48 (holding that the damage cap on claims against governmental enti......
  • Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., No. 970345
    • United States
    • Supreme Court of Utah
    • March 5, 1999
    ...section 11 is transgressed by the enactment of governmental immunity. For example, in McCorvey v. Utah State Department of Transportation, 868 P.2d 41, 47-48 (Utah 1993), we found that section 63-30-34(1), which imposes a cap on damages recoverable from governmental entities, did not violat......
  • Lee v. Gaufin, Nos. 20995
    • United States
    • Supreme Court of Utah
    • November 30, 1993
    ...is less than meets the eye, at least where legislation impinging on recovery for personal injuries is at issue. See McCorvey v. Utah, 868 P.2d 41 (1993) (Stewart, J., concurring and dissenting, joined by Durham, J.) (arguing that damage cap on personal injury recoveries against state cannot......
  • Lyon v. Burton, No. 950515
    • United States
    • Supreme Court of Utah
    • January 19, 2000
    ...limits or caps on compensatory damages in three cases. See Bott v. DeLand, 922 P.2d 732 (Utah 1996); McCorvey v. State Dep't of Transp., 868 P.2d 41 (Utah 1993); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989). Two cases have held the damage cap in Utah Code Ann. § 63-30-34 unconst......
  • Request a trial to view additional results

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