# Presentation: 430437

## WORK ZONE LIABILITY

- Kevin Reynolds
- Assistant Attorney General
- Office of the Attorney General
- Maryland State Highway Administration

## 6 GENERAL TOPICS

- _1.  Introduction_
- 2.  Possible Plaintiffs
- 3.  Possible Defendants
- 4.  Negligence in Work Zone Cases
- 5.  Limiting Liability
- 6.  Other Factors Affecting Liability

## 1.  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._

## 1.  INTRODUCTION

- What is work zone liability?
- Anyone injured in a work zone may _claim_ that a work zone _caused_ or _contributed_ to an accident.

## 1.  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.

## 1.  INTRODUCTION

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

## 6 GENERAL TOPICS

- 1.  Introduction
- _2.  Possible Plaintiffs_
- 3.  Possible Defendants
- 4.  Negligence in Work Zone Cases
- 5.  Limiting Liability
- 6.  Other Factors Affecting Liability

## 2. PLAINTIFFS

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

## 2.  PLAINTIFFS

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

## 6 GENERAL TOPICS

- 1.  Introduction
- 2.  Possible Plaintiffs
- _3.  Possible Defendants_
- 4.  Negligence in Work Zone Cases
- 5.  Limiting Liability
- 6.  Other Factors Affecting Liability

## 3. DEFENDANTS

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

## 3. DEFENDANTS

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

## 3.  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.

## 6	GENERAL TOPICS

- 1.  Introduction
- 2.  Possible Plaintiffs
- 3.  Possible Defendants
- _4.  Negligence in Work Zone Cases_
- 5.  Limiting Liability
- 6.  Other Factors Affecting Liability

## 4.  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.

## 4.  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?

## 4.  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;

## 4.	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.

## 4.  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.

## 4.  NEGLIGENCE

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

## 4.  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;

## 4.  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.

## 4.  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;

## 4.  NEGLIGENCE

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

## 6	GENERAL TOPICS

- 1.  Introduction
- 2.  Possible Plaintiffs
- 3.  Possible Defendants
- 4.  Negligence in Work Zone Cases
- _5.  Limiting Liability_
- 6.  Other Factors Affecting Liability

## 5.  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.

## 5.  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.

## 5.  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.

## 5.  LIMITING LIABILITY

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

## 5.  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.

## 5.  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

## 5.  LIMITING LIABILITY

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

## 6	GENERAL TOPICS

- 1.  Introduction
- 2.  Possible Plaintiffs
- 3.  Possible Defendants
- 4.  Negligence in Work Zone Cases
- 5.  Limiting Liability
- _6.  Other Factors Affecting Liability_

## 6.  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.

## 6.  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.

## 6.  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.

## 6.  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.

## 6.  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.

## 6.  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.