Spruce Creek Dev. Of Ocala v. Drew, 98-2004.

• Decision Date: 24 September 1999
• Docket Number: No. 98-2004.,98-2004.
• Parties: SPRUCE CREEK DEVELOPMENT CO., OF OCALA, INC., Appellant, v. Wilma DREW and William Drew, her husband, Appellees.
• Court: Florida District Court of Appeals

746 So.2d 1109

SPRUCE CREEK DEVELOPMENT CO., OF OCALA, INC., Appellant, v. Wilma DREW and William Drew, her husband, Appellees.

No. 98-2004.

District Court of Appeal of Florida, Fifth District.

September 24, 1999.

Rehearing Denied December 3, 1999.

Robert E. Bonner and Ernest J. Myers, of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for appellant.

Steven L. Brannock, Chris N. Kolos and Thomas M. Burke, of Holland & Knight— Maguire, Voorhis & Wells, Orlando, for appellees.

GRIFFIN, J.

Spruce Creek Development Company of Ocala, Inc. ["Spruce Creek"], appeals a final judgment in favor of Wilma and William Drew ["the Drews"], arising out of a head-on motor vehicle accident killing one driver and permanently maiming the other, Mrs. Drew. The Drews contend that the accident was caused by improper signage at the entrance to appellant's retirement community in Marion County. Because we conclude that the jury was erroneously instructed, we reverse.

Six years before the accident, on March 29, 1989, through its roadway engineer Joseph Martone, P.E., Spruce Creek applied for and was granted a "Single Family Residential III Connection Permit" from the Florida Department of Transportation ["FDOT"], to construct an entrance and exit to its retirement development. Specifically, Spruce Creek sought to construct "one two way driveway, and 82' cross-over and left and right turn lanes" connecting the access road, S.E. 176th Street to U.S. 441, a divided four lane highway. It is undisputed that the access road did not extend beyond U.S. 441 and that the connection would result in a "T" intersection.

The application contained several provisions, including:

The connection(s) will be constructed in accordance with regulations adopted by the Department of Transportation and covered in its "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System."

The application also contained special provisions including:

5. The applicant shall construct and maintain any and all traffic control devices required or called for by application of the U.S. Department of Transportation's Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways.

At the time of the permit, the FDOT's "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System (1985)" provided at page 44 that:

All traffic control devices shall be installed in accordance with the Manual on Uniform Traffic Control Devices (MUTCD) and the current Department standards and specifications. (Emphasis original).

Section 2B-29 of the U.S. Department of Transportation's Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways ["MUTCD"], entitled "One Way Sign," provides in pertinent part:

One Way signs shall be placed on the near right-hand and the far-left hand corners of the intersection at non-signaled intersections so as to face traffic entering or crossing the one-way street (figure 2-3), except that intersections of divided highways with median widths of 30 feet or more¹ may be signed as in section 2A-31 ... A One Way sign should always be used, where applicable, and may be supplemented by a Turn Prohibited Sign (sec.2B-15).

One Way signs are not ordinarily needed on the one-way roadways of divided highways, where the design of interchanges indicates the direction of traffic on the separate roadways.

Section 2A-31 of the MUTCD, entitled "Wrong-Way Traffic Control," provides in pertinent part:

Efforts should be made to identify and make practical corrections at grade intersections on divided highways where wrong-way usage is being experienced or where a wide median, a rural unlighted environment or other contributing factors indicate the likelihood of wrong-way movements.

Where roadways are separated by median widths of 30 feet or more, the intersections with the crossroad shall be signed as two separate intersections and ONE WAY signs (section 2B-29) should be visible to each crossroad approach on the near right-hand and far left-hand corners of each intersection with the directional roadways as shown in Figure 2-3. However, when an engineering study has demonstrated that placement of ONE WAY signs in the median area may create confusion, the near right-hand signs in the median may be omitted and ONE WAY signs placed in the far right quadrant of the intersection. Figure 2-3a shows this alternate scheme with one pair of ONE WAY signs in the median replaced by YIELD signs. Turn Prohibition, DO NOT ENTER and WRONG WAY signs may be used to supplement ONE WAY sign layouts in Figures 2-3, 2-3a,2-4.

* * * * * *

If used, DO NOT ENTER and WRONG WAY signs should be placed on a divided highway at a location to be directly in view of a driver making a wrong-way entry from the crossroad. Additional signs may be placed where the median width is 30 feet or more ...

The FDOT approved Spruce Creek's permit on May 12, 1989, and construction began. Spruce Creek did not submit a traffic control device plan or drawing with its application. During construction, FDOT inspected the connection to determine whether the construction complied with the permit and FDOT did require Spruce Creek to install a stop sign and stop bar at the intersection. One-way signs were not required.

Prior to the construction of the connection, Acting State Traffic Engineer, Jack Brown ["Brown"], had issued an instructional memorandum on October 10, 1988, and a revised memorandum on November 18, 1988, entitled, "One-Way Signs on Divided Highway Intersections," regarding ambiguities in recent revisions of the MUTCD. The stated purpose of the memoranda to district traffic engineers was: "To establish the need for and location of one-way signs ... and other signs and pavement markings for crossroads on divided highways."

Both memoranda contained the identical background section detailing the ambiguity:

The requirements for the placement of signing and pavement markings for intersections on divided highways were revised in the Manual on Uniform Traffic Control Devices (MUTCD) in Revision No. 3 dated 9/84. The guidelines provided in the MUTCD in Section 2A-31 and the Figures 2-3 and 2-3a for Revision No. 3, were somewhat confusing. Section 2A-31 was subsequently revised via the Federal Register (Vol. 53 No. 51) on March 16, 1988 and became effective March 21, 1988. In spite of these revisions, the intent of the Manual is still unclear in part. The standards for signing and marking intersections on divided highways with median widths over 30 feet are shown in Figures 2-3 (page 2A-11) and 2-3a (bottom of page 2A-12). The text on Page 2A-18 explains that Figure 2-3 should be used except "... when an engineering study has demonstrated that placement of ONE WAY signs in the median may create confusion, the near right-hand signs in the median may be omitted and ONE WAY signs placed in the far right quadrant of the intersection. Figure 2-3a shows this alternate scheme with one pair of ONE WAY signs in the median replaced with YIELD signs. TURN PROHIBITION, DO NOT ENTER and WRONG WAY signs may be used to supplement ONE WAY sign layouts in Figures 2-3, 2-3a or 2-4."

Accordingly, it is not clear as to what pavement markings are required in the median area and what criteria should be used to determine the need for TURN PROHIBITION, DO NOT ENTER, and WRONG WAY signs.

This instructional memorandum is temporarily pending the processing of a procedure on this subject.

Accordingly, Brown outlined guidelines interpreting the MUTCD revisions:

Therefore, in order to provide clear guidelines and ensure uniformity in application statewide, the following criteria have been established ...

The guidelines articulated the new policy for placement of signs on divided highways with medians greater than 30 feet and contained the following comment concerning "T" intersections:

These guidelines (as well as the MUTCD) are only intended for crossroads and not crossovers (including "T" intersection). A crossroad is any roadway, paved or unpaved, which is maintained by a public agency. Driveways and entrances to businesses are not considered crossroads. However, if large malls or office complex type developments exist, it may be necessary to install the signs and markings noted herein. This decision is left to the discretion of the engineer. (Emphasis original).

After construction had been completed on the Spruce Creek connection at issue, Brown, now the State Traffic Operations Engineer, issued another instructional memorandum to district traffic engineers on July 2, 1990, entitled "One-way Signs on Divided Highway Intersections":

To clarify an issue raised over an instructional memorandum on the above subject dated November 18, 1988, the use of one-way signing at T-intersections on divided highways with medians over 30 feet is allowed. One-way signing should also be used for signalized intersections with medians over 30 feet. Typical applications are show in Figures 2-3, 2-3a of the MUTCD, (the yield signs would not be used for signalized intersections).

One-way signing for divided highway intersections was the subject of a procedure initially proposed by this office. However, since the document presented guidelines for signing, it will not appear as a procedure but will be included in the Traffic Engineering Manual, to be published later this year.

On June 15, 1991, the FDOT published the Traffic Engineering Manual referred to in Brown's memorandum. The manual section entitled "Signs and Markings at Nonsignalized Intersections of Divided Highways and Crossroads" contained the following definition:

Crossroad. Any intersecting roadway, paved or unpaved, which is maintained by a public agency. It does not include crossovers or "T" intersections. Driveways and entrances to businesses are not considered crossroads. However, if large malls or office complex developments exist, it may be necessary to install the

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