Porter v. Knife River, Inc.

• Decision Date: 18 February 2022
• Docket Number: S-20-578.
• Citation: 310 Neb. 946,970 N.W.2d 104
• Parties: Gwen Vargas PORTER, Special Administrator of the Estate of Curtis W. Blackbird and next friend of Nathan Mitchell, a minor child, appellant, v. KNIFE RIVER, INC., a Delaware corporation, et al., appellees.
• Court: Nebraska Supreme Court

310 Neb. 946

970 N.W.2d 104

Gwen Vargas PORTER, Special Administrator of the Estate of Curtis W. Blackbird and next friend of Nathan Mitchell, a minor child, appellant,

v.KNIFE RIVER, INC., a Delaware corporation, et al., appellees.

No. S-20-578.

Supreme Court of Nebraska.

Filed February 18, 2022

Nicholas R. Glasz, of Glasz Law Firm, for appellant.

Stephen G. Olson II, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for Knife River, Inc.

Patrick R. Guinan, of Erickson | Sederstrom, P.C., Omaha, for appellee D.P. Sawyer, Inc.

Patrick L. Sealey, of Heidman Law Firm, P.L.L.C., for appellee A.M. Cohron & Son, Inc.

Michael L. Storey and Mark E. Novotny, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee M.E. Collins Contracting Company, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Officer Curtis W. Blackbird died on duty responding to an emergency domestic violence call when his police cruiser crashed into a parked crane on a portion of Highway 94 that was closed for construction. Blackbird's widow, Ardetta Blackbird, as special administrator of Blackbird's estate and as next friend of Blackbird's son, Nathan Mitchell, filed this negligence action in the district court for Thurston County alleging negligent maintenance of a construction site against the highway construction contractors and subcontractors (collectively the contractors). The district court granted summary judgment in favor of the contractors. Blackbird's widow, as special administrator, appealed. During the pendency of this appeal, she passed away, and upon motion, Gwen Vargas Porter was substituted as special administrator (Administrator). The evidence was undisputed that the contractors met their obligations, including those under Neb. Rev. Stat. § 39-1345 (Reissue 2016) pertaining to the erection of suitable barricades and signs to notify motorists that Highway 94 was closed for construction. We conclude that there was no triable issue of fact and that the contractors were entitled to summary judgment. Accordingly, we affirm the order of the district court which granted summary judgment in favor of the contractors.

STATEMENT OF FACTS

Blackbird was on duty with the Omaha Tribal Police when his police cruiser tragically collided with a 50-ton "Crawler" crane parked on a portion of Highway 94 which was closed for construction. In the early hours of March 26, 2017, Blackbird received an emergency domestic violence call. In order to respond, Blackbird needed to travel from Macy, Nebraska, to Walthill, Nebraska. A westbound portion of Highway 94 was the fastest route from Macy to Walthill, but was designated by the Nebraska Department of Transportation (NDOT) as closed for construction. Despite the closure, Blackbird entered the closed roadway by maneuvering around barricades and proceeded on Highway 94. In the dark night, Blackbird's police cruiser collided with the crane that was parked on the highway, and Blackbird, who was not wearing a seatbelt, died as a result of injuries sustained in the collision.

Another officer with the Omaha Tribal Police, Ben Carrillo, had responded to the same call. He was driving ahead of Blackbird on Highway 94 and successfully navigated around the parked crane in the westbound lane. Carrillo had driven through the same route from Macy to Walthill earlier in the same shift. According to Carrillo, the highway had been closed for "quite some time." Carrillo testified that he and the other officers with whom he worked regularly drove around road-closed signs to respond to emergencies. After Carrillo passed the crane, he looked in his rearview mirror and noticed that he could no longer see the headlights of Blackbird's police cruiser. He turned his cruiser around and observed that Blackbird had collided with the crane.

A Nebraska State Patrol certified accident reconstructionist investigated the collision scene. In his report, he concluded that it was a typical closure for state projects and that the signs and barricades required were in place at the proper locations. He stated the road closure barricades were "not something that you would have missed.... You had to take — I had to take some sort of evasive maneuver to get around them, meaning I had to leave the roadway to get around them." He contacted the site supervisor, who stated that people had driven around the barricades when the construction crew was not present.

The contractors, who are the appellees in this case, include (1) Knife River, Inc., the general contractor for the Highway 94 construction project; (2) M.E. Collins Contracting Company, Inc., a subcontractor hired by Knife River and responsible for the paving project; (3) A.M. Cohron & Son, Inc., a sub-subcontractor hired by Collins and responsible for bridge, road, and culvert work (and the owner of the crane with which Blackbird's police cruiser collided); and (4) D.P. Sawyer, Inc., a subcontractor hired by Knife River and responsible for traffic control and barricading.

The NDOT owned the construction project on Highway 94. A traffic control plan for the Highway 94 project was developed and approved by the NDOT using the standard and typical plan. It complied with the Manual on Uniform Traffic Control Devices (2009) (MUTCD). The MUTCD is the "national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel." 23 C.F.R. § 655.603(a) (2021). Section 1A.07 of the MUTCD provides that "[t]he responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction ...."

The NDOT contracted with Knife River for the Highway 94 project. In February 2017, due to cracking in an earth slope near a culvert that ran under the highway, a change order was negotiated that expanded the original scope of work, and Knife River subcontracted with M.E. Collins Contracting Company, who subcontracted with A.M. Cohron & Son. A.M. Cohron & Son took control of the Highway 94 project on March 20. The area of the slope repair work was designated a "Work Area" and was closed for the duration of the repair. A.M. Cohron & Son deployed the crane, which it owned and controlled, into the westbound lane of Highway 94 on March 21. The crane could only be operated from the roadway due to the conditions at the site. As marked in the traffic control plan, the crane was parked in a section of the highway that was a "hard closure," meaning such section was closed to all traffic.

The undisputed evidence indicates that all traffic devices required by the traffic control plan were in place and operational in the early hours of March 26, 2017, the day of the collision. The Administrator's expert offered an observation that more robust barricades and signs were available. Blackbird proceeded past nine barricades and five signs all indicating the highway was closed. Carrillo told the accident reconstructionist that when Carrillo entered the east side of the work area, he slowed down to about 5 m.p.h. so he could leave the roadway and drive around the barricades.

This action was brought against the contractors, claiming that they were jointly and severally liable for negligence—leaving the crane on the highway without adequate illumination, barricades, or other traffic control—and that such negligence was the proximate cause of Blackbird's death. Specific claims of negligence were made against each of the contractors.

The district court sustained the contractors’ motions for summary judgment. In its order, the court determined that the contractors were entitled to summary judgment as a matter of law based on several theories in the alternative, including the failure of the Administrator's prima facie case of negligence, and based on several affirmative defenses, including contributory negligence and assumption of risk. The court therefore granted the contractors’ motions for summary judgment and dismissed the complaint with prejudice. The Administrator appeals.

ASSIGNMENT OF ERROR

The Administrator assigns, summarized and restated, that the district court erred when it granted summary judgment in favor of the contractors.

STANDARDS OF REVIEW

An appellate court affirms a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.

Statutory interpretation presents a question of law which an appellate court reviews independently of the lower court. In re William R. Zutavern Revocable Trust , 309 Neb. 542, 961 N.W.2d 807 (2021).

ANALYSIS

The Administrator claims that the district court erred when it granted summary judgment in favor of the contractors. We find no merit to the Administrator's claim, and we therefore affirm.

We note at the outset that summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Wintroub v. Nationstar Mortgage , 303 Neb. 15, 927 N.W.2d 19 (2019). See In re Estate of Lakin, supra . We have noted that the primary purpose of the summary judgment procedure is to pierce the allegations in the pleadings and show conclusively that the controlling facts are other than as pled.

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