Transp. Eng'g, Inc. v. Cruz
| Decision Date | 07 November 2014 |
| Docket Number | No. 5D13–923.,5D13–923. |
| Citation | 152 So.3d 37 |
| Parties | TRANSPORTATION ENGINEERING, INC., Appellant, v. Annette CRUZ, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Daniel B. Rogers, of Shook, Hardy & Bacon, LLP, Miami, and David S. Johnson and Tiffany C. Raush, of Shook, Hardy & Bacon, LLP, Tampa, for Appellant.
Angela C. Flowers, of Kubicki Draper, Ocala, for D.A.B. Constructors, Inc., Appellee.
Arnold R. Ginsberg, of Arnold R. Ginsberg, P.A.; Manuel F. Fente, of Law Offices of Manuel F. Fente, P.A.; Robert Rossano, of Law Offices of Robert Rossano, P.A., Miami, for Annette Cruz, Appellee.
In this personal injury case, defendant Transportation Engineering, Inc. (“TEI”) appeals from an order granting summary final judgment for codefendant D.A.B. Constructors, Inc. (“DAB”), but denying its summary judgment motion on the same issue. Although that portion of the trial court's order denying TEI's motion falls outside of our appeal jurisdiction, we conclude that under these unique facts TEI has demonstrated a departure from the essential requirements of the law and irreparable harm, warranting certiorari relief.
Vanessa Cruz (“Vanessa”) was tragically killed on July 15, 2008, in a single vehicle accident on the Florida Turnpike. Vanessa was the front seat passenger in a vehicle when the driver lost control, left the roadway, and struck an uncushioned guardrail end at an emergency crossover in the median. The guardrail end struck the car at Vanessa's door.
Annette Cruz (“Cruz”), as personal representative of the estate of her daughter, Vanessa, settled with the vehicle's driver for policy limits,1 and then filed suit against the Florida Department of Transportation (“DOT”), the entity responsible for erecting and maintaining the guardrail; TEI, the company that designed the guardrail; DAB, the company that constructed the guardrail; and two other companies not related to this appeal. In the complaint in effect at the time of the summary judgment hearing (the third amended complaint), Cruz alleged that DOT breached a duty of care to Vanessa by failing to warn the public about or failing to remedy a dangerous condition, not readily apparent to the public, which was caused by an improperly designed and constructed guardrail. Specifically, Cruz alleged that DOT failed to provide safeguards to prevent vehicles from becoming impaled on the guardrail end at the emergency crossover where Vanessa died, and in so doing, DOT failed to follow both national safety standards and its own standards for constructing guardrail ends at emergency crossovers. Cruz similarly alleged that TEI and DAB breached their duties of care to Vanessa by negligently designing and constructing the guardrail ends, and in failing to follow the national safety standards and DOT standards applicable to the design and construction of guardrail ends.
Five years before the accident, in 2003, DOT initiated a project to install median guardrails along the entire Florida Turnpike to reduce the number of fatal accidents caused by vehicles crossing the median into oncoming traffic lanes. Because it was separating the oncoming traffic lanes with a guardrail, DOT recognized the need for regular emergency crossovers, or breaks, to allow police and other emergency vehicles to cross the median and access oncoming traffic lanes.
DOT had specific “Design Standards,” derived from national standards, governing the design and construction of guardrails and emergency crossovers. Design Standard Index 700 required a clear zone of 36 feet for areas where the speed limit exceeds 55 miles per hour. The clear zone is an area next to the road, generally free of obstructions, where drivers can attempt to regain control of errant vehicles. Design Standard Index 400 required “crash cushions” as end treatments for guardrail openings (like those in an emergency crossover) located inside the clear zone (where they are more likely to be struck by fast-moving vehicles, causing injury to passengers). The speed limit was 70 miles per hour where the crash occurred and the guardrail was approximately 30 feet from the road, or within the 36–foot clear zone. Consequently, the Design Standards required crash cushions on the guardrail end involved in this accident.
Outside the clear zone, DOT Design Standards allowed unprotected “Type II” end anchorages, without crash cushions, on exposed guardrail ends. In 2004, crash cushions were at least three to four times as expensive as Type II end anchorages.
Although the emergency crossover at issue was inside the clear zone, in March 2004, DOT developed preliminary guide drawings specifying Type II end anchorages instead of crash cushions, contrary to its own Design Standard Index 400. In an attempt to prevent vehicles from striking the unprotected Type II end anchorage of the approaching or oncoming guardrail end of an emergency crossover, the trailing guardrail was angled outward so that most errant vehicles heading toward the emergency crossover would strike the trailing guardrail, deflecting them away from the oncoming guardrail end.
DOT's Mike Shannon maintained that using Type II end anchorages with a “departure angle design” on the trailing guardrail of an emergency crossover was an alternative that served the same purpose as using crash cushions.2 According to Shannon, the alternative design “waived” the need for crash cushions. Shannon believed this alternative design was derived from “national based information,” based on national studies, but he was not familiar with any specific national or state engineering studies on the alternative design.
Despite believing that the alternative design in DOT's guide drawing was “safe,” Shannon nevertheless maintained that the guide drawings were only “concept drawings” to be used as “guidance,” and that TEI had the ultimate responsibility to ensure that its design plans met state and national standards. At one point, DOT and TEI met to discuss the project. A DOT memo memorializing that meeting included the following statement:
TEI discussed receipt of the Turnpike's comment regarding their turnaround design not being consistent with the standard turnaround design adopted by the Turnpike in March 2004. TEI sited [sic] several reasons to include enhancements to the adopted design; however, the Turnpike requested that they reconsider utilizing the adopted design for consistency with the other guardrail projects unless there was clearly an unsafe aspect with the adopted design. TEI agreed to revise their design.
TEI ultimately submitted design plans for the guardrail ends and emergency crossovers within its scope of work, including the one at issue here. The first page of those designs indicated that the governing standards and specifications for the designs were DOT's 2004 “Design Standards,” including 2004 Design Standard Index 400. However, consistent with DOT's March 2004 guide drawings, TEI's design plans depicted Type II end anchorages instead of crash cushions on all guardrail ends at the emergency crossovers, and DOT accepted TEI's design plans.
DOT hired DAB to construct the guardrails and emergency crossovers at issue according to TEI's design plans. DOT expected DAB to follow TEI's design plans. According to DOT's Shannon, the notes on the design plans referring to the applicable DOT Design Standards did not modify the plans themselves. Similarly, Mark Davidson, a representative of the engineering firm DOT hired to supervise construction, testified the design plan superseded any applicable DOT Design Standards, even though the plans referenced the standards. Thus, if DAB had wanted to install crash cushions, it would have had to seek a modification to the plans. It was not allowed to make unilateral modifications. DAB constructed the guardrails and emergency crossovers according to TEI's plans, using Type II end anchorages instead of crash cushions. DOT accepted DAB's completed work.
Cruz's standard of care expert, Arnold Ramos, testified that DAB had a duty to ensure that the guardrails and emergency crossovers were constructed according to DOT Design Standards. Consequently, DAB had a duty to ensure that the guardrail ends in the emergency crossover at issue were constructed with crash cushions because they were located inside the clear zone. He acknowledged that TEI's plans called for Type II end anchorages, but they also referenced Design Standard Index 400, which “put the burden on the contractor to make sure he's familiar with the standards.” According to Ramos, DAB should have recognized the need for crash cushions and then requested a supplemental agreement or change order from DOT to include them.
However, Ramos testified that TEI was not negligent.
Significantly, Ramos was Cruz's only standard of care expert. And, the only breach of duty identified by Ramos was DAB's...
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