Sager v. County of Spokane, No. 22438-4-III (WA 2/24/2005)
| Decision Date | 24 February 2005 |
| Docket Number | No. 22438-4-III,22438-4-III |
| Court | Washington Supreme Court |
| Parties | KARYL KIMBERLY SAGER, individually, and as the Personal Representative of the Estate of Jonathon E. Sager, deceased, JONATHON JAMES SAGER, individually and SHANNON COLLEEN PEARSON, Appellants, v. The COUNTY OF SPOKANE, a Municipal Corporation; DALE BRADLEY and PATRICIA BRADLEY, husband and wife, and WM. WINKLER CO., a Washington Corporation, Defendants, K. C. CONSTRUCTION, INC., an Idaho Corporation, Respondent. |
Appeal from Superior Court of Spokane County. Docket No: 01-2-02556-7. Judgment or order under review. Date filed: 10/02/2003. Judge signing: Hon. Salvatore F Cozza.
Counsel for Appellant(s), Edward A. Dawson, Dawson & Meade, 1310 W Dean Ave, Spokane, WA 99201-2015.
Marcia Marie Meade, Attorney at Law, 1310 W Dean Ave, Spokane, WA 99201-2015.
Counsel for Defendant(s), Hugh T. Lackie, Evans Craven & Lackie PS, 818 W Riverside Ave Ste 250, Spokane, WA 99201-1095.
Peter Joseph Johnson, Johnson Law group, 818 W Riverside Ave Ste 700, Spokane, WA 99201-0916, Counsel for Respondent(s)
Kevin James Curtis, Attorney at Law, 601 W Riverside Ave Ste 1900, Spokane, WA 99201-0627.
On October 28, 2000, Dale Bradley was driving in the center lane of Sprague Avenue and began to turn left onto Dishman Road. Unfortunately, Mr. Bradley was unaware that four days earlier this portion of Sprague had become a five-lane, one-way street as the result of the Valley Couplet roadway project. When turning left, Mr. Bradley crossed two lanes of traffic and drove directly into the path of John Sager, who was driving his motorcycle in the lane closest to the curb. Mr. Sager died from his injuries. A wrongful death lawsuit was filed by his family and estate (collectively `Ms. Sager') against the County, the Bradleys, and K.C. Construction, Inc. Ms. Sager settled with the County and the Bradleys, and K.C. Construction was dismissed on summary judgment.
Ms. Sager appeals, contending the court erred by granting summary judgment because K.C. Construction had a duty (1) to reasonably anticipate and alleviate all dangerous conditions in or near the construction area; (2) to use ordinary care when complying with the standards set forth in the Manual on Uniform Traffic Control Devices (MUTCD); and (3) to warn motorists about dangerous conditions caused by construction and roadway design. Ms. Sager also maintains that there are numerous issues of fact that must be resolved by a jury. Because we conclude K.C. Construction did not have an independent or concurrent duty to use ordinary care to remove or repair hazardous conditions beyond the boundaries of the construction zone, we affirm the judgment of the trial court.
Cause of Action. On the morning of October 28, 2000, John Sager was driving his motorcycle westbound on Sprague Avenue between Argonne and Dishman Road. At the time, Sprague was a one-way arterial going westbound as a result of the Valley Couplet roadway project.
Mr. Sager was traveling in the southernmost lane of Sprague at Argonne. Dale Bradley was also traveling westbound on Sprague, but he was driving a minivan in one of the center lanes. Unaware that Sprague had been changed from a two-way street to a five-lane, one-way street, Mr. Bradley made a left-hand turn onto Dishman cutting across two lanes of traffic. By turning left, Mr. Bradley drove directly into the path of Mr. Sager. Mr. Sager's motorcycle struck Mr. Bradley's van. Mr. Sager subsequently died as a result of the injuries he sustained in collision.
Ms. Sager filed a negligent construction lawsuit against K.C. Construction Inc., the County, and Dale and Patricia Bradley. Ms. Sager settled with the Bradleys and the County. K.C. Construction was dismissed on summary judgment. Ms. Sager challenges this decision on appeal.
Valley Couplet Project. In 1999, Spokane County redesigned portions of Sprague as part of the Valley Couplet. K.C. Construction, Inc. was the general contractor on the project.
Prior to the redesign, Sprague had seven lanes of traffic at the Dishman intersection: three westbound, three eastbound, and a lane specifically designed for left turns. The left-turn lane for westbound traffic turning onto Dishman was comprised of a raised center island and white striping consisting of a wide channeling and a stop bar.
Construction began on the Valley Couplet in 1999. As designed by the County, the Valley Couplet created a new four-lane, one-way road, Appleway, to serve east-bound traffic from the Interstate 90-Sprague interchange to University Road. All westbound traffic from University to Thierman Road would travel on Sprague, which would be reconfigured to accommodate five lanes of one-way westbound traffic.
Terms of the Original Contract between the County and K.C. Construction. K.C. Construction was the general contractor for the Valley Couplet roadway project. Ultimately, the work was bid out in two contracts due to changes in the scope, sequencing, and timing of the project. The original plans of the first contract dealt with the reconfiguration of Sprague to a one-way street only from University to just east of Dishman.
This original reconfiguration was to be accomplished by (1) removing the islands from the center lane, (2) grinding off the overlay on all five westbound lanes, and
(3) placing permanent striping on the new surface. Because the plan called for a complete overlay of the old surface—resulting in a completely new surface—the plan did not expressly require K.C. Construction to remove the existing striping. Hence, K.C. Construction had no contractual duty to remove the existing striping apart from its duty to grind and resurface the road. K.C. Construction also had no express contractual duty to provide temporary striping.
Change Order. Under a change order issued by the County Engineer in June 2000, the work on Sprague was extended from Dishman westward to Thierman Road. The change order required K.C. Construction to remove the center islands and patch the existing asphalt where the islands had been removed. In the change order, the County assumed responsibility for temporary striping and signal modifications. Specifically, the change order provided:
A. Sprague Avenue, Thierman Road to Dishman Road— 2000 (CRP 2842)
This work consists of removing concrete islands and patching existing asphalt in order to accommodate switching Sprague Avenue to one-way traffic westbound. This work will be accomplished in conjunction with contract work from Dishman Road to University Road at unit prices shown on Attachment `A' as per the enclosed plans and under the contract specifications. NOTE: all work will be accomplished maintaining two-way traffic and providing access to all properties.
County forces will accomplish temporary striping and signal modifications. The contractor will coordinate with the County to provide a safe transition.
Clerk's Papers (CP) at 263 (emphasis added). Delay in Completion of Overlay. The grinding of the westbound lanes, and the overlay of the new surface, including the new permanent striping, was scheduled to occur in the fall of 2000 or the spring of 2001. Due to weather conditions, the County ultimately made the decision to delay work until the spring of 2001.
Opening of the Valley Couplet. On October 11, 2000—17 days before the collision between Mr. Sager's motorcycle and Mr. Bradley's minivan—the County made the decision to open Appleway to eastbound traffic and to close Sprague to eastbound traffic. However, at this time, all five lanes on Sprague were not open as one-way lanes. Because the center traffic islands had not been removed and the County had not yet completed its temporary striping, the County decided that only Sprague's previously-existing westbound lanes would remain open to traffic. At this point then, the portion of Sprague later involved in the Sager-Bradley collision, was operating with only the three northernmost westbound lanes. Consequently, up until October 24—four days before the collision—the original left-hand turn lane from Sprague onto Dishman was still available for use by westbound motorists.
On October 24, the County restriped Sprague between Argonne and Dishman in order to open all five lanes of Sprague to westbound traffic. In addition to the restriping of the lanes, the County placed two solid barrier lines that diverged and tapered to form a median; thereby preventing traffic from turning left from the former left-hand turn pocket at the intersection of Sprague and Dishman. But after this restriping was completed, the former left-turn stop bar and the channelizing line remained visible on the pavement.
That same day, October 24, the County opened all five lanes of Sprague to westbound traffic.
Following its original design, the County did not place any traffic control devices at the intersection of Sprague and Dishman to prevent left-turn lanes from what was now the middle lane of Sprague. The County also did not place any traffic control devices at the intersection to explain to drivers that left-hand turns were now prohibited from what was now the middle of a one-way street. Instead, the County relied on the knowledge and training of drivers to follow the signs and markings identifying Sprague as a one-way street.
Events on the Day of the Collision. Four days later, on October 28, K.C. Construction returned to provide traffic control for a subcontractor who was to install a new island around the railway overpass between Argonne and Dishman. Two days earlier, K.C. Construction had submitted a Traffic Control Plan (TCP) to the County for this work and the County had approved this plan in concept that same day. This plan provides, in part, that:
1. The traffic control plan submitted has been approved for concept only. The contractor is responsible for determining specific signing and layout as required by the...
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