McLain v. State, 96-270

• Decision Date: 21 May 1997
• Docket Number: No. 96-270,96-270
• Citation: 563 N.W.2d 600
• Parties: Jimmie D. McLAIN, Jr. and Rodna J. Forbes, Appellants, v. The STATE of Iowa, L.L. Pelling Company, Inc., Cedar Rapids Asphalt & Paving, and Selco, Inc., Appellees.
• Court: Iowa Supreme Court

Page 600

563 N.W.2d 600

Jimmie D. McLAIN, Jr. and Rodna J. Forbes, Appellants, v. The STATE of Iowa, L.L. Pelling Company, Inc., Cedar Rapids Asphalt & Paving, and Selco, Inc., Appellees.

No. 96-270.

Supreme Court of Iowa.

May 21, 1997.

Timothy S. White and Crystal L. Usher of White & Johnson, P.C., Cedar Rapids, for appellants.

Samuel C. Anderson and Natalie Williams Burris of Swisher & Cohrt, P.L.C., Waterloo, for appellees-State, L.L. Pelling Co., and Cedar Rapids Asphalt & Paving.

J. Michael Weston and Brenda K. Werner of Moyer & Bergman, P.L.C., Cedar Rapids, for appellee-Selco, Inc.

Considered by HARRIS, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

Plaintiff, Jimmie McLain, was injured in an automobile accident in a construction zone on Interstate Highway 380. He and his wife sued the State of Iowa and the contractors working on the project, claiming the area was unreasonably dangerous because the traffic warning signs were inadequate in alerting motorists of traffic congestion. All defendants moved for summary judgment. The State claimed it was immune from tort liability, pursuant to Iowa Code section 668.10(1) (1993), for claims of failure to place, erect, or install traffic control devices. The contractors claimed they complied with all State plans and specifications and, therefore, were entitled to share the same immunity as the State. The district court granted defendants' motions and dismissed the action. On appeal, we affirm.

I. Background Facts and Proceedings.

In April 1992, L.L. Pelling Company (Pelling) and Cedar Rapids Asphalt & Paving ¹ contracted with the State of Iowa, through the Iowa Department of Transportation (DOT), to perform construction on the northbound lanes of Interstate Highway 380 near Cedar Rapids. Pelling subcontracted with Selco, Inc. to install and maintain the traffic control devices for the project. Pursuant to their contracts, Pelling and Selco were bound to comply with the State's plans and specifications. Further, the State retained complete control over the type, number, and location of traffic control devices. Any variation from the plans and specifications required prior State approval.

In the contracts, the parties incorporated by reference numerous general and supplemental specifications. These specifications, which involve highway construction and maintenance and traffic control devices, are located in manuals that have been adopted by the DOT. See Iowa Code § 321.252 (requiring DOT to adopt a manual for a uniform system of traffic control devices). They are important because they constitute the standards and requirements that must be observed in contracts awarded by the DOT. In particular, the parties agreed to be bound by SS-5025, the "Supplemental Specification for Traffic Controls for Street and Highway Construction Maintenance, Utility and Emergency Operations." SS-5025 sets forth principles and standards to be observed in the design, installation, and maintenance of traffic control devices.

Before contracting with Pelling, the DOT conducted a traffic volume study to determine the potential for traffic congestion due to the construction and to determine what advance warning signs were needed to alert motorists. The DOT decided that two signs were sufficient to notify northbound motorists of the construction. One sign warned that road construction was eight miles ahead and the other that road construction was three miles ahead. In addition, both signs warned that delays were possible. In accordance with the construction contract, Selco installed the signs at the proper locations. Selco also installed a sign approximately four miles south of the construction zone, warning of "road construction next six miles."

On July 9, 1992, McLain was traveling northbound on I-380 between 5:00 and 6:00 p.m. As he neared the construction zone, and after he passed the three-mile warning sign, traffic became congested because northbound traffic was reduced from two lanes to one lane. A vehicle ahead of McLain abruptly slowed or stopped, and he collided with the rear of the vehicle and suffered personal injuries and property damage. At the time of the accident, all of the DOT's warning signs were in place and in compliance with State requirements. Even though he had passed each of the signs, McLain claims he only saw one of them.

One June 21, 1993, McLain and his wife, Rodna Forbes (hereafter collectively referred to as "McLain"), filed a petition against the State, Pelling, and Cedar Rapids Asphalt & Paving. He sought recovery of the damages he sustained as a result of the accident, and Forbes sought damages for loss of consortium. On May 6, 1994, the district court granted the defendants' motion for leave to add Selco as a third-party defendant. McLain then filed an amended petition to include claims against Selco.

All defendants filed motions for summary judgment. The State claimed it was entitled to judgment under Iowa Code section 668.10(1), which provides immunity to the State for failure to place, erect, or install traffic control devices. The remaining defendants claimed they complied with all State plans and specifications and, therefore, were entitled to the same immunity. McLain resisted the motions, stating that there were numerous genuine issues of material fact and that none of the defendants should be afforded the protection of section 668.10(1).

Following a hearing, the district court granted defendants' motions and dismissed the action. McLain filed timely notice of appeal.

II. Scope of Review.

Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 237(c). In determining if there is a genuine issue of fact, we consider the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any. Id. We examine the record before the district court to decide whether a genuine issue of material fact exists and whether the court correctly applied the law. Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 201 (Iowa 1997). In doing so, we view the facts in the light most favorable to the party opposing the motion for summary judgment. Id. Summary judgment is proper when the only conflict concerns the legal consequences flowing from undisputed facts. Production Credit Ass'n v. Farm & Town Indus., Inc., 518 N.W.2d 339, 341 (Iowa 1994).

III. McLain's Claims Against the State.

McLain asserts that the defendants failed to establish the absence of material fact issues relating to the warnings and traffic control devices in the construction area. Specifically, he claims there are fact issues as to whether the defendants agreed to monitor the effectiveness of the signs and to add, change, or modify the signs as necessary. The State argues that, because all of McLain's claims involve the placement of traffic control devices and the sufficiency of warnings, the State is immunized under Iowa Code section 668.10(1). We agree with the State.

A. Immunity Under Section 668.10(1).

We must determine whether McLain's claims relate to the State's failure to place, erect, or install traffic control devices. If they do, and the exceptions to immunity are not satisfied, the State is exempt from tort liability. Iowa Code section 668.10(1) provides:

In any action brought pursuant to this chapter, the state or a municipality shall not be assigned a percentage of fault for any of the following:

1. The failure to place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursuant to section 321.252. However, once a regulatory device has been placed, created or installed, the state or municipality may be assigned a percentage of fault for its failure to maintain the device.

As the statute makes clear, Iowa Code section 668.10(1) immunizes the State for decisions about whether or where to place traffic signs. Sullivan v. Wickwire, 476 N.W.2d 69, 73 (Iowa 1991); Hunt v. State, 538 N.W.2d 659, 661 (Iowa App.1995). In other words, the State is not subject to tort liability for its decisions concerning sign selection or placement. Phillips v. City of Waukee, 467 N.W.2d 218, 220 (Iowa 1991); Hunt, 538 N.W.2d at 661. This includes claims that the State improperly failed to install signs, that its signs were improperly located, or that its signs failed to adequately warn motorists. See Sullivan, 476 N.W.2d at 73; Foster v. City of Council Bluffs, 456 N.W.2d 1, 2 (Iowa 1990).

Despite the different characterizations of his claims, McLain's basic claim is that the State should have monitored the effectiveness of the traffic control plan and installed additional signs. Jack Anderson, McLain's expert witness, testified in his deposition that, even though the existing signs were adequate most of the time, it was his opinion that an additional sign, preferably a changeable message board, should have been installed for use during peak traffic hours.

Iowa Code section 668.10(1) does not just immunize the initial placement or installation of traffic control devices; it applies to all such placements or installations. A plaintiff cannot overcome the State's immunity by merely claiming that the State should have done more to warn motorists or should have installed more traffic control devices. As we held in Sullivan, even if a plaintiff makes a claim that the State could have done more to inform motorists of potential danger ahead, the State is still immune. Sullivan, 476 N.W.2d at 73.

B. Exceptions to Immunity.

McLain also argues that even if his claims relate to the State's failure to place, erect, or install traffic control devices, the State still cannot escape liability under section 668.10(1) because the recognized exceptions to governmental immunity are satisfied. We disagree.

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