Williams-Porchia v. Wilder Construction Co.

• Decision Date: 21 September 2009
• Docket Number: 61975-6-I
• Court: Washington Court of Appeals
• Parties: SHANITA S. WILLIAMS-PORCHIA and JOHN E. SALTERS, JR., Appellants, v. WILDER CONSTRUCTION COMPANY, A Washington, Corporation, Respondent.

SHANITA S. WILLIAMS-PORCHIA and JOHN E. SALTERS, JR., Appellants, v. WILDER CONSTRUCTION COMPANY, A Washington, Corporation, Respondent.

No. 61975-6-I

Court of Appeals of Washington, Division 1

September 21, 2009

UNPUBLISHED OPINION

Schindler C.J.

A car traveling through a two-lane construction zone on the Mukilteo Speedway, State Route 525 (SR 525), crossed the center line and hit a Shuttle Express van head-on killing the driver of the car. The occupants of the van, Shanita S Williams-Porchia and John E. Salters (collectively Williams-Porchia), sued the driver's estate, the Washington State Department of Transportation (WSDOT), and Wilder Construction Company for negligence. The trial court granted Wilder's motion for summary judgment and dismissed the claims against Wilder.^[1] Because there are material issues of fact as to whether Wilder was negligent, we reverse and remand for trial.

FACTS

In April 2001, Wilder Construction Company entered into a contract with the WSDOT to widen and expand 1.8 miles of SR 525. The construction took place on the west side of the existing two-lane roadway. Wilder placed temporary "Jersey" barriers between the work area and the west side of the roadway.

The contract between the WSDOT and Wilder requires Wilder to perform all work in accordance with the WSDOT Standard Specifications for Road, Bridge and Municipal Construction (2000 ed.) (Standard Specifications). The contract provides in part:

The Contractor shall do all work and furnish all tools materials, and equipment for: . . . concrete barrier pavement markings, permanent signing . . . in accordance with and as described in the attached plans and specifications and the standard specifications of the Washington State Department of Transportation which are by this reference incorporated herein and made part hereof and, shall perform any changes in the work in accord with the Contract Documents.

Under Standard Specifications 1-07.23 (1), Wilder has a duty to "maintain existing roads and streets within the project limits, keeping them open, and in good, clean, safe condition at all times." The contract between WSDOT and Wilder also provides that Wilder is responsible for concrete barriers, pavement markings, and permanent markings.

The February 6, 2002 head-on collision was the third fatal accident at the project site. On November 1, 2001, a head-on collision involving a driver with a blood alcohol level of .11 resulted in a fatality. On February 2, a driver crossed the centerline, passing multiple cars and colliding head-on with an oncoming car.

At approximately 1:15 a.m. on February 6, 2002, Nikolas Mount was driving north on SR 525. Shanita Williams-Porchia and John Salters were in a Shuttle Express van traveling south. The posted speed limit was 60 miles per hour. Mount drove into the southbound lane to pass a car. Mount was driving at 60 to 70 miles per hour and remained in the southbound lane for 50 to 100 yards after passing the car. Witnesses said there was space to return to the northbound lane, but Mount did not move back into the lane or slow down.

The driver of the Shuttle Express saw the approaching car's headlights and slowed down to 40 to 45 miles per hour, but the Jersey prevented moving to the shoulder of the highway. Mount's car hit the Shuttle Express van head-on. The van spun around and landed sideways on the road. Another car then hit the van. Mount died. Williams-Porchia and Salters were seriously injured. According to the toxicology report, Mount's blood alcohol level was .21.

Williams-Porchia and Salters (collectively, Williams-Porchia) sued Mount's estate, the WSDOT, and Wilder for negligence.^[2] Williams-Porchia alleged that Wilder negligently failed to provide adequate signage and warnings and failed to provide a safe roadway for drivers:

2.14 Defendant Wilder, as defendant State's general contractor for this construction zone, failed to provide adequate signage and warning for oncoming traffic regarding the narrowing of lanes, speed, and lack of lighting in this construction zone.

2.15 Defendant Wilder failed to provide a safe roadway and particularly failed to reduce the posted speed limit so as to be safe, consistent with the circumstances of the construction then being undertaken.

2.16 Defendant Wilder additionally failed to provide for safe separation of traffic and otherwise failed to provide for the safe passage of traffic within this construction zone.

The complaint also alleged that as a result of the collision, Williams-Porchia and Salters sustained serious injuries. Williams-Porchia sought an award of medical costs and expenses, loss of earnings and impairment of earning capacity, and general damages.

Wilder filed a motion for summary judgment asserting that the contract with the WSDOT did not create a duty beyond the duty to exercise ordinary care in conformance with the contract's plans and specifications. Wilder argued that the government contractor immunity doctrine barred the lawsuit against Wilder. The WSDOT argued the court "should deny Defendant Wilder's Motion for Summary Judgment, because there are genuine issues of material fact regarding Wilder's negligence that should be decided by a jury." The WSDOT also argued that there were material issues of fact as to whether Wilder followed the contract requirements to maintain the striping and remove the temporary Jersey barriers when they were no longer needed.^[3] The court granted Wilder's motion for summary judgment and dismissed the lawsuit.

ANALYSIS

Williams-Porchia asserts the trial court erred in dismissing her lawsuit on summary judgment because there are material issues of fact. Specifically, Williams-Porchia contends there are material issues of fact about whether Wilder negligently failed to keep the roadway clear of sand and gravel, restripe SR 525 and remove the temporary Jersey barrier following the installation of the permanent barrier.

Wilder admits it has a duty to exercise ordinary care in maintaining the roadway in a condition that is reasonably safe for travel. But Wilder contends that it cannot be liable absent an independent showing of negligence.^[4] Wilder asserts that it is not negligent because it followed WSDOT's plans and specifications in compliance with the contract and the WSDOT was responsible to restripe SR 525.

We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn.App. 506, 512, 24 P.3d 413 (2001). Summary judgment is only proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing summary judgment, we consider supporting affidavits and other admissible evidence based on personal knowledge. Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn.App. 736, 744, 87 P.3d 774 (2004). The moving party bears the burden of proving there are no genuine issues of material fact. CR 56(c); Smith v. Preston Gates Ellis, LLP, 135 Wn.App. 859, 863, 147 P.3d 600 (2006), rev. denied, 161 Wn.2d 1011, 166 P.3d 1217 (2007). "A material fact is one of such nature that it affects the outcome of the litigation." Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997). We view the facts and reasonable inferences in a light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). Summary judgment is appropriate if in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).

To prove negligence, Williams-Porchia must establish (1) a duty, (2) breach, (3) resulting injury, and (4) proximate cause. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).

There is no dispute that the State has a duty to maintain its roadways. In Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002), the court held that "a municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel."

Under the terms of the contract, specifically Standard Specifications 1-07.13 (1), Wilder is liable for any damage resulting from the contractor's operations or negligence.^[5] Thus, the question is whether there are material issues of fact about whether Wilder was negligent in performing its duties under the contract with the WSDOT by failing to maintain the roadway in a condition that was reasonably...