Search Work Zone:

Text from 'Work Zone Liability' PowerPoint Presentation

Slide 1

Kevin Reynolds

Assistant Attorney General

Office of the Attorney General

Maryland State Highway Administration

Slide 2

General Topics

1. Introduction
2. Possible Plaintiffs
3. Possible Defendants
4. Negligence in Work Zone Cases
5. Limiting Liability
6. Other Factors Affecting Liability

Slide 3

Introduction

• General overview.
• Generic approach.
• Based on experience representing MSHA and understanding of law in other jurisdictions.
• Law in other jurisdictions may vary.
• Rights and liabilities to an actual dispute depend on applicable law and specific facts of each case.
  

Slide 4

Introduction

• What is work zone liability?
• Anyone injured in a work zone may claim that a work zone caused or contributed to an accident.

Slide 5

Introduction

• How does the work zone or TCP cause or contribute to the accident?
• Work Zone and/or TCP improperly:
  • Designed;
  • Installed; and/or
  • Maintained.

Slide 6

Introduction

• The work zone or TCP may be blamed for the accident even where the accident was caused by another driver.

Slide 7

General Topics

1. Introduction
2. Possible Plaintiffs
3. Possible Defendants
4. Negligence in Work Zone Cases
5. Limiting Liability
6. Other Factors Affecting Liability

Slide 8

Plaintiffs

• Anyone injured in the work zone including:
  • Drivers;
  • Passengers;
  • Motorcyclists;
  • Bicyclists;
  • Pedestrians; and
  • Construction personnel.

Slide 9

Plaintiffs

• Injury includes:
  • Death;
  • Personal injury; or
  • Damage to property.

Slide 10

Defendants

• Anyone involved in:
  • designing;
  • installing;
  • maintaining; or
  • inspecting;
• TCP or Work Zone

Slide 11

Defendants

• Defendants may include:
  • Governmental agencies;
  • Corporations; and/or
  • Individuals.

Slide 12

Defendants

• Often there are multiple Defendants, including:
  • Government / highway agency;
  • Highway agency’s consultant TCP designer;
  • Highway agency’s construction contractor;
  • Highway contractor’s subcontractor
  • A consultant providing construction inspection services to SHA; and
  • The individual employees of these entities.

Slide 13

General Topics

1. Introduction
2. Possible Plaintiffs
3. Possible Defendants
4. Negligence in Work Zone Cases
5. Limiting Liability
6. Other Factors Affecting Liability

Slide 14

Negligence

• Claims most often based on negligence.
• Negligence is generally defined as something that a person using ordinary care would not do, or not doing something that a person using ordinary care would do.

Slide 15

Negligence

• Ordinary care means that caution, attention or skill that a reasonable person would use under similar circumstances.
• In other words, was what you did reasonable under the circumstances?

Slide 16

Negligence

• The determination of what constitutes ordinary care and whether that standard of care was breached in a work zone accident case:
  • Depends on the specific facts of each case;
  • Decided by a jury or a judge;
  • Depends on a variety of factors;

Slide 17

Negligence

• Factors used to establish the standard of care may include the following:
  • The law:
• Statutes or regulations regarding the duties and obligations of the highway agency, consultant, or contractor;
• Prior court cases that have established or discussed the standard of care relating to maintaining roads or work zones; and/or
• Statutes or regulations that adopt or reference manuals or specifications relating to work zones.

Slide 18

Negligence

• MUTCD and related publications of the highway agency.
• AASHTO’s Green Book.
• AASHTO’s Roadside Design Guide.
• Any other professional publications that are considered authoritative or relied upon in the industry.
• Highway agency’s consultant and construction contracts.

Slide 19

Negligence

• Testimony of hired experts who give their opinion regarding:
  • the standard of care; and
  • whether the standard of care was breached.

Slide 20

Negligence

• Negligence claims may be supported by evidence and/or argument that:
  • The TCP was inconsistent with MUTCD AASHTO, or other governing standards;
  • The Work Zone was confusing;
  • The Work Zone did not provide positive guidance;

Slide 21

Negligence

• The Work Zone contained hidden dangers that could not be appreciated or understood by a driver exercising ordinary care;
• The Work Zone could have been safer by adding or removing traffic control devices;
• An alternative design was feasible and would have been safer.

Slide 22

Negligence

• Work Zone cases often involve:
  • Sight distance issues;
  • Confusing / improper / lack of signs;
  • Positive guidance issues;
  • Confusing traffic control devices;
  • Hazards on or next to the road;
  • Clear zone issues;
  • Pavement drop-off issues;

Slide 23

Negligence

• Pavement markings;
• Speed limits;
• Channelizing Devices;
• Tapers;
• Merge areas;
• Barriers;
• Flaggers;
• Maintenance of traffic control devices; and/or
• Buffers.

Slide 24

General Topics

1. Introduction
2. Possible Plaintiffs
3. Possible Defendants
4. Negligence in Work Zone Cases
5. Limiting Liability
6. Other Factors Affecting Liability

Slide 25

Limiting Liability

• The most effective way to minimize the risk of work zone liability is reduce the number of accidents and injuries that occur in the work zone.
• Safety first: Design through completion of project.

Slide 26

Limiting Liability

• When accidents do occur, the ability to successfully defend a lawsuit may depend on the ability to prove that the TCP and the work zone were the product of reasoned and sound engineering judgment.
• The complexity of each situation will dictate the necessary level of study, review, and inspection, and documentation.

Slide 27

Limiting Liability

• It is generally helpful to be able to show that the TCP and the work zone:
  • complied with the appropriate standards;
  • was safe for drivers exercising ordinary care; and
  • was reasonable given the nature of the work and the physical limitations of the work area.

Slide 28

Limiting Liability

• Those involved with the design of the TCP and the work zone may have to testify years later.

Slide 29

Limiting Liability

• The inability to produce a written record or specifically recall what was done may create a false impression that the decisions made were not the result of sound and reasoned engineering judgment, even where the TCP and work zone complied with the appropriate standards and was perfectly safe.

Slide 30

Limiting Liability

• Documentation may :
  • help to demonstrate that ordinary care was exercised and that decisions made were the result of sound and reasoned engineering judgment;
  • be the only evidence where no memory exists or persons involved are no longer available; and
  • refresh you memory

Slide 31

Limiting Liability

• Documentation may include:
  • Notes;
  • Reports;
  • Photographs;
  • Video; and
  • Other.

Slide 32

General Topics

1. Introduction
2. Possible Plaintiffs
3. Possible Defendants
4. Negligence in Work Zone Cases
5. Limiting Liability
6. Other Factors Affecting Liability

Slide 33

Other Factors

• An injured third-party brings a negligence claim because he has no contract with those designing, installing, or maintaining a TCP or work zone.
• All involved entities have a duty to the public to use ordinary care and may be responsible for the breach of that duty.

Slide 34

Other Factors

• The responsibilities, rights, and liabilities between the involved entities may be addressed in contracts between them.
• One entity may may be required to indemnify others against a loss relating to the contract and/or maintain insurance on behalf of all parties.

Slide 35

Other Factors

• If there is no contractual relationship between involved entities, one defendant may claim that another defendant should be completely responsible for the loss under the common law theory of indemnity or partially responsible for the loss under the common law theory of contribution.

Slide 36

Other Factors

• Sovereign immunity may prohibit or limit the liability of the government.
• Currently, Maryland has a limited waiver of its sovereign immunity: $200,000 per claim.

Slide 37

Other Factors

• The individual liability of government employees may be prohibited or limited.
• Currently, a Maryland state employee is immune from suit and liability for torts committed within the scope of his public duties absent malice and gross negligence

Slide 38

Other Factors

• An employee is prohibited from suing his employer by the workers compensation laws.
  • In exchange the employer is responsible for work related injuries.
• An employee may be able to sue another entity that is not his employee for work related injuries.