AAPA Asphalt Meeting 2014

Hotel CapstoneTuscaloosa, AL

Joe DuncanHuie, Fernambucq & Stewart

March 12, 2014

Road Builder Laws Have Changed“Road Builders Get Immunity from the Alabama Supreme Court” –Jere Beasley Report 8/7/2013

“The reports of my death have been greatly exaggerated.” – Mark Twain-ish

Even Twain gets misquoted

What has actually changedFor ALDOT & public employees: Nothing

For Contractors:1. Supreme Court: Hosea Weaver v. Balch2. Statutory Change

The old law: McFadden v. Ten-T

McFadden: A contractor is entitled to follow the plans and specifications provided by an engineer unless those plans would result in an obviously dangerous or defective condition.

Types of cases against contractors1. You didn’t tell the state about an obviously

defective condition2. You failed to comply with the contract

requirements: Is this what McFadden really said?

An example: Dangerous condition

Washington Contractor has completed work but project not

accepted Driver drifts off shoulder Plans call for 4’ of aggregate to be placed at edge

of pavement to dress edge No requirement to perform and shoulder work Plaintiff’s theory: Contractor should have

discussed dangerous condition and inability to place 4’ of aggregate with ALDOT

Balch

• 5 ½ years before an accident Hosea Weaver resurfaced a roadway under an ALDOT contract

• Project was completed and accepted by ALDOT

• At time of accident, a 7-10 inch deep ditch ran along the shoulder of the road for 500 feet.

• State had maintenance responsibility for road

Hosea Weaver v. Balch

Hosea Weaver v. Balch

Balch AccidentCriticism of some comments:“It has to be someone’s fault”“You have to be able to sue someone.”

Is it anyone’s fault? Does someone else have to be liable simply because the state is not?

Balch Results Balch resulted in a $7.5 million verdict

against the road builder The expert never testified that the road was

dangerous or unreasonable; the only testimony was that it deviated from the plans and specifications

DutiesLiability was imposed on the road builder simply because there was a deviation in the width of lane and cross slope changed over the course of 500 feet.

The project was match existing.

BalchTrue for All Projects • All work performed by contractors is inspected by ALDOT• Contractor can not do work outside presence of ALDOT

inspector• Work must conform to ALDOT standards and specifications to be

accepted

For Balch• Assistant ALDOT engineer for the project agreed that had the

ditch been present, the project would not have been accepted• Contractor had no duty to maintain shoulder under ALDOT

contract• ALDOT filled in ditch with gravel after accident

The deviation from an ALDOT contract does not equate to negligence Plaintiff argued noncompliance with the contract equaled

negligence Plaintiff’s argument ignores dangerous and unreasonable Plaintiff’s argument created a moving standard

Under Plaintiff’s argument - no violation for “match existing” contact

Upon acceptance by the State, Hosea Weaver had no further responsibility – including maintenance

Balch – ARBA Arguments

Not foreseeable that State would simply fail to maintain the roadway after acceptance Plaintiff agreed that accident would not have occurred had state

maintained roadway

Failure to maintain was an alteration to Hosea Weaver’s “product”

Contractor should not bear liability for State’s discretion State has control over roadway construction State can accept or change plan at will

Balch – ARBA Arguments

State’s inspection and acceptance should create contractor immunity Contractor contracted with the State, not the

Plaintiff

Upon completion of a project, the State has the duty to provide safe roads – not contractors

State’s acceptance of roadway includes any deviations from contract

Balch – ARBA Arguments

Balch DecisionPer curiam: a majority of justices did not agree

What this means: the case is not binding precedent but is persuasive

Balch decision1. Court applied “acceptance doctrine”:

contractor not liable once state accepts2. Contractor is not liable due to lack of

causation & proximate cause3. Contractor has not duty to repair road4. Court reversed decision and ruled in favor of

Hosea Weaver

Alabama Road Builder Statute

Based on these situations, the road builders proposed a statute in February 2012 to adopt the acceptance doctrine by statute.

The interested parties were sent to mediation with the state bar president.

The Process The interested parties were referred to a

mediation process with Jim Pratt, bar president as mediator

Participating parties: Counties ALDOT ARBA Plaintiff’s bar Engineers

Process Multiple mediation sessions and meetings

among the parties resulted in several drafts of the bill

John Cooper, ALDOT director, was integral in offering testimony/commentary during mediation to allow the bill’s passage

SB 139 Section 1. Definitions:

“Contractor” means any person or entity, and any subcontractor, director, officer or employee of such a person or entity, that contracts with the State of Alabama, a county or other local government to construct, repair or maintain a highway, a road, a bridge or a street.

“Conclusion of Project” means the date that the Awarding Authority notifies the Contractor, in writing, that the Awarding Authority has assumed maintenance responsibilities for the roadway, or 60 days after the contractor has notified, in writing, the Awarding Authority that the Contractor’s work on the project is completed, whichever is earlier.

SB 139 Section 1: Definitions

“Awarding Authority” means: The Alabama Department of Transportation, if the Contractor

enters into a contract with the State of Alabama to construct, repair or maintain a highway, a road or a street for the State of Alabama; or

The county governing body, if the Contractor enters into a contract with that county to construct, repair or maintain a highway, a road or a street for that county; or

The governing body of any other local government, if the Contractor enters into a contract with that local government to construct, repair or maintain a highway, a road or a street for that local government.

SB 139 “Specifications” means specifications, plans,

drawings, bid documents or any other written or electronically stored requirements and details the Contractor agrees to perform.

“Dangerous Condition” means a condition that is not reasonably safe for the intended use of the roadway and is capable of causing a person physical injury or death under the anticipated use of the roadway.

Section 2: A Contractor is justified ordinarily in relying upon the

specifications that are contained in the contract with an Awarding Authority. No Contractor shall be held civilly liable for work performed on a highway, road, bridge or street including repairs, construction, or maintenance on behalf of the Awarding Authority unless it is shown by a preponderance of the evidence that physical injury, property damage or death is proximately caused by: a failure by the Contractor to follow the plans and specifications

resulting in a Dangerous Condition; or the Contractor’s performance of the contract in compliance with the

plans and specifications creates a condition that should have appeared, to a reasonably prudent contractor, to be a Dangerous Condition; or

a latent defect which creates a Dangerous Condition that is the result of the work of the Contractor.

Section 2: Plain English

A contactor is not liable for a condition of a road unless:

1. It fails to follow the plans and specs, resulting in a dangerous condition

2. Following the plans results in an obviously dangerous condition

3. The contractor’s work creates a latent defect

Section 3During the course of construction, a Contractor who constructs, maintains or repairs a highway, road, street, or bridge for the Awarding Authority is not liable to a claimant for personal injury, property damage or death arising from the performance of such construction, maintenance, or repair, if, at the time of the personal injury, property damage or death, the Contractor was in compliance with contract documents material to the condition, including the Traffic Control Plan, that was the proximate cause of the personal injury, property or death unless following the plans and specifications would result in a Dangerous Condition that should have appeared to be defective to a reasonably prudent contractor or that the contractor should have known that following the plans and specifications could create a Dangerous Condition that caused the injury or death.

Section 3 Plain English

The contractor will not be liable if it follows the plans and specs unless doing so creates an obviously dangerous condition.

Section 4If, prior to or during the course of construction, a Contractor discovers or determines that following the plans and specifications could result in a potentially Dangerous Condition then the Contractor shall, with specificity of such condition(s), expressly notify the Chief Engineer of the Alabama Department of Transportation in writing by certified mail, return receipt requested. The Alabama Department of Transportation, or the Awarding Authority, shall respond to the specific condition(s) raised within fourteen (14) days in writing as to its decision as to the appropriate response to the Dangerous Condition. The Contractor shall not be liable for any claim relating to any decision made by the Alabama Department of Transportation or Awarding Authority as to the appropriate response, design decisions or engineering decision, if any, to respond to the potentially Dangerous Condition identified.

Section 4 Plain English

If the contractor discovers a dangerous condition, then it can write to ALDOT for direction. ALDOT has 14 days to respond and the contractor is not liable for how ALDOT elects to address the situation.

Section 5The Contractor shall bear no civil liability for any alleged property damage, personal injury, death or other civil claims made by non-contractual third parties arising from the design decisions or professional engineering judgment, including decisions relating to the proper scope or inspection of the project, by the Awarding Authority. This section shall not apply to situations in which: the Contractor contracts in whole or in part to design the

roadway or project or to provide professional engineering services as to the design of the roadway; or

the Contractor undertakes to provide design or professional engineering services as to the roadway or project.

Section 5 plain language

A contractor is not liable for engineering decisions made by the designer unless:

a) The contractor is paid to design the road orb) The contractor attempts to provide

engineering

i.e., design/build projects

Section 6The Contractor shall bear no civil liability for any Dangerous Condition that is outside of the scope of the project or that is in excess of any requirement of the governing plans and specifications provided by the Awarding Authority. This section shall not apply to situations in which: the Contractor contracts to design in whole or in part the

roadway or project or to provide professional engineering services as to the design of the roadway; or

the Contractor undertakes to provide services as to the roadway or project that are outside the scope of the project or that are in excess of any requirement of the governing plans and specifications.

Section 6 Plain Language

The contractor is not responsible for issues outside the scope of the project unless

a) The contractor is hired to address such issuesb) The contractor undertakes to address those

issuesExample: A resurfacing project that does not

include shoulder work.

Section 7A Contractor shall bear no civil liability to a claimant for personal injury, property damage, or death which occurs subsequent to the Conclusion of the Project where the proximate cause of the personal injury, property damage or death is occasioned by a failure of the Awarding Authority to properly maintain the roadway or any of its features, including shoulders, unless: a Contractor contracts in whole or in part with the Awarding

Authority to maintain the roadway, or any of its features, including shoulders, or project in question; or

the Contractor undertakes, independent of a contract, to maintain a roadway or any of its features, including shoulders.

Section 7 Plain Language

The contractor is not responsible for any accident that is proximately caused by the state/county’s failure to maintain the road unless:

a) The contractor is hired to maintainb) The contractor undertakes to maintain

Section 8

Nothing in this Act shall limit or eliminate the liability of a Contractor for any civil action based on any alleged loss of or damage to, the property of a utility that is rightfully located on, or adjacent to, the right-of-way of any highway, road or street on which the Contractor performed the construction, repair or maintenance.

Section 9

The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 10

This act shall only apply to a cause of action which accrues after the effective date of this act. Pursuant to this act, a cause of action accrues at the time of property damage or the occurrence of the personal injury or death that is made the basis of the civil action.

Section 11

Nothing in this law shall be interpreted or construed to alter or affect the rights of any Awarding Authority to make a claim against a contractor or to exempt a contractor from compliance with all provisions of contracts between such contractors and an Awarding Authority.

Section 12

This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

A Lot of Information in a Little Time Questions? Contact us:

Huie, Fernambucq & Stewart, LLPJoe Duncan205-874-3420jduncan@huielaw.comtwitter: @joeduncanatty