United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3926

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Rosa Maria Lopez; Regions Bank, * 

Special Administrator for the Estate * 

of Isidro Lopez, Deceased, * 

* 

Plaintiffs/Appellees, * 

* 

v. * Appeal from the United States

* District Court for the 

Robert Mendez; Roadway Express, Inc., * Eastern District of Arkansas.

* 

Defendants/Appellees, * 

* 

v. * 

* 

James Construction Group, * 

Originally Sued As Angelo Iafrate * 

Construction, L.L.C., * 

* 

Third Party Defendant/ * 

Appellant. *

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Submitted: October 12, 2005

Filed: December 23, 2005(Corrected: 1/06/06)

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Before BYE, BEAM, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.
1

The Honorable J. Leon Holmes, Chief Judge, United States District Court for

the Eastern District of Arkansas.

2

Standard Specifications § 104.01 provided that:

The intent of the Contract is to provide for the construction and completion of

every detail of the work described. The Contractor shall furnish all labor,

materials, equipment, tools, transportation, and supplies required to complete

the work according to the plans, specifications, and terms of the Contract. 

3

The construction contract required James to erect and maintain traffic control

devices in accordance with the MUTCD. The proper location of the signs, the proper

number of the signs, and the proper spacing of the signs as outlined in the MUTCD

applied to the contract. Section 604.03 of the standard specifications specifically

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James Construction, L.L.C. ("James") appeals from a judgment entered on a

jury verdict finding James 40% responsible for a traffic accident in a construction

zone. James, a contractor, performed highway construction work for the State of

Arkansas. James argues that the acquired-immunity doctrine shielded the company

from liability and that the district court1

 therefore erred in denying its motion for

judgment as a matter of law or, in the alternative, a new trial. We affirm. 

I. Background

James contracted with the Arkansas Highway and Transportation Department

("AHTD") to complete highway improvements and paving work at the intersection of

Interstates 40 and 440. The contract expressly provided that "[t]he contractor shall

assume full responsibility for the safe and uninterrupted movement of traffic through

construction areas for the duration of the project." This responsibility included

erecting and maintaining traffic control devices, such as traffic barrels, construction

warning signs, yield signs, and stop signs. To ensure that James fulfilled its duty to

adequately warn motorists, the contract required James to: (1) comply with every

detail of the contract's plans and specifications;2

 (2) comply with the Manual on

Uniform Control Devices for Streets and Highways ("MUTCD");3

 (3) take steps
stated that compliance with the MUTCD was required.

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James deemed reasonably necessary to provide the safe flow of traffic and the safety

of the public; and (4) correct any deficiencies that were out of compliance with the

plans and specifications, the MUTCD, or James's judgments about what was

reasonably necessary to protect the safety of the public.

While doing asphalt-paving work on Interstate 40, James constructed a

temporary ramp between the two highways. The permanent on-ramp from Interstate

440 East to Interstate 40 East curves in a gradual arc to the right, which allows drivers

to maintain their speed close to normal highway speed as they merge from Interstate

440 to Interstate 40. James had blocked off the permanent on-ramp at a point about

half way along its length. At that point, James had diverted traffic onto a temporary

ramp. This temporary ramp curved back to the left, away from the arc of the

permanent on-ramp, and then intersected Interstate 40 at an angle. James placed stop

signs at the end of the temporary ramp, one on each side of it. 

Tragically, an accident occurred near the construction zone. A Roadway

Express, Inc. ("Roadway") tractor-trailer driven by Robert Mendez collided with a

vehicle driven by Isidro Lopez and his wife, Rosa. The accident occurred when

Mendez attempted to exit Interstate 440 and enter Interstate 40 eastbound via the

temporary ramp. Mendez's truck struck a car parked at the stop sign, crossed two

eastbound lanes of Interstate 40, the median, and two westbound lanes of Interstate

40, and finally struck the Lopez automobile. The impact killed Mr. Lopez and

seriously injured Mrs. Lopez.

Mrs. Lopez subsequently brought a wrongful death and survival action in tort

against Mendez, Roadway, and James. One of the hotly-contested factual issues at

trial was whether James had placed "Stop Ahead" signs to warn motorists of the

upcoming stop signs placed at the juncture of the temporary ramp at Interstate 40. No
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party disputed that the original plans called for "Yield" signs at that junction and

"Yield Ahead" signs that motorists would see before approaching the intersection of

the temporary ramp and Interstate 40. According to James, this plan had been orally

modified to allow the use of "Stop" and "Stop Ahead" signs rather than the "Yield"

and "Yield Ahead" signs. At trial, the parties disputed whether these signs were in

place when the accident occurred. 

During the trial, James moved for a directed verdict, claiming it was protected

from liability by the Arkansas doctrine of acquired-immunity. The district court

denied the motion. The jury returned a verdict for Mrs. Lopez, finding both James and

Mendez negligent. The jury also found that James failed to perform its work in

accordance with its contract with the State of Arkansas. Finally, the jury found that

Roadway and Mendez were 60% responsible and James was 40% responsible for the

accident. 

The district court entered judgment on the jury's verdict. James then moved for

judgment as a matter of law or, in the alternative, for a new trial. The trial court denied

James's motion. James appeals, arguing that the acquired-immunity doctrine bars any

liability being assigned to James because representatives for the State of Arkansas

testified at trial that James had performed according to the plans and specifications in

the contract; in addition, James argues that the district court's instructions to the jury

did not accurately reflect the law and deprived James of its acquired-immunity

defense, entitling James to a new trial. 

II. Discussion

A. Acquired-Immunity Doctrine

James contends the district court erred in denying its motion for judgment as

a matter of law or, in the alternative, a new trial because it is entitled to acquired

immunity. In response, appellees assert that James is not entitled to acquired immunity

because the jury could find James negligently performed its contract with the State of
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Arkansas from evidence of record. We review the district court's decision to deny a

motion for judgment as a matter of law de novo. Kipp v. Mo. Highway & Transp.

Comm'n, 280 F.3d. 893, 896 (8th Cir. 2002). We review a district court's decision to

deny a motion for a new trial under an abuse of discretion standard. Blair v. Wills, 420

F.3d 823, 829 (8th Cir. 2005). 

In general, litigants may not sue the State of Arkansas because of the state's

sovereign immunity. Univ. of Ark. for Med. Sci. v. Adams, 117 S.W.3d 588, 590 (Ark.

2003). The state's sovereign immunity does not extend to independent contractors

engaging in work for the state. Southeast Constr. Co. v. Ellis, 342 S.W.2d 485, 488

(Ark. 1961). However, the acquired-immunity doctrine creates an exception to this

rule. The exception provides that a contractor who performs its work according to the

terms of its contract with a governmental agency, and under the governmental

agency's direct supervision, is not liable for damages resulting from its performance.

Smith v. Rogers Group, Inc., 72 S.W.3d 450, 455 (Ark. 2002). Thus, if damages result

from the contractor's performance of a construction contract with the state, "and the

damages result from something inherent in the design and specifications required by

the public agency, the contractor is not liable unless he is negligent or guilty of a

wrongful tort." Guerin Contractors, Inc. v. Reaves, 606 S.W.2d 143, 144 (Ark. App.

1980). The purpose of the doctrine is to protect an "innocent contractor who has

completely performed the work to the government's plans and specifications." Smith,

72 S.W.3d at 456. 

The acquired-immunity doctrine, however, does not protect a contractor "who

performs the contract in a negligent manner resulting in damages to others." Id.

Therefore, while the doctrine shields from liability a contractor who performs in

accordance with the terms of the contract, it does not shield from liability a contractor

who acts negligently while performing the terms of the contract. See Barker v. Rogers

Group, Inc., 45 S.W.3d 389, 394 (Ark. App. 2001). 
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Muskogee Bridge Co., Inc. v. Stansell, 842 S.W.2d 15 (Ark. 1992) provides

helpful guidance on the operation of the doctrine. In Muskogee, a bridge contractor

contracted with the State of Arkansas to perform a bridge construction project. The

contractor was to perform the work in accordance with AHTD plans and

specifications. Id. at 17. The construction contract obligated the contractor to furnish

all signs, barricades, and temporary traffic control devices for temporary hazard

protection. In addition, the contract stated that the contractor must take all action

reasonably necessary to protect the public. Id. at 19. During the construction of the

bridge, the plaintiff crossed the bridge, hit a drop-off caused by the construction, lost

control of her car, and hit another car. Id. at 17. The contractor failed to erect any

signs indicating the dangerous drop-off despite the contract's express language. Id.

The plaintiff sued the contractor, alleging that it negligently left a dangerous drop-off

in the roadway and failed to adequately warn motorists about the dangerous condition.

Id. At trial, an AHTD representative testified that the drop-off could only have been

an inch-and-a-half according to the project specifications but agreed that if something

there created the effect of a speed bump then something "was not right." Id. at 18.

Similarly, the contractor's project supervisor testified that the drop-off was only an

inch-and-a-half deep. Id. Four other witnesses, however, testified that the drop-off was

significantly deeper. Id. at 18–19. Based on this evidence, the Arkansas Supreme

Court held that the trial court was correct in finding that the contractor was not

protected by the acquired-immunity doctrine. Id. at 20. 

On different facts, the Arkansas Supreme Court, in Smith, held that an asphalt

contractor was entitled to acquired immunity. 72 S.W.3d at 457. The plaintiffs had

brought a negligence action against the contractor, alleging that the contractor used

an inappropriate type of asphalt—Type 3 asphalt—on a high-volume highway, which

increased the potential for accidents caused by hydroplaning. Id. at 453. The contract

between the contractor and the AHTD, however, specifically called for the use of

Type 3 asphalt. Id. The undisputed evidence submitted at trial demonstrated that the

contractor performed its contract with the AHTD exactly as specified. Id. at 457. The
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resident engineer of the AHTD testified that the contractor completed the project in

full compliance with the specifications as set forth in the contract. Id. Because the

contractor acted in accordance with the terms of the contract in performing the

contract, it was entitled to acquired immunity. Id. 

This case is more analogous to Muskogee than to Smith. Here, Lopez, like the

plaintiff in Muskogee, alleged that James was negligent for failing to perform

according to the terms of the contract with the State of Arkansas, not for acting in

accordance with the terms of the contract as in Smith. James's contract with the AHTD

provided that all traffic control devices used on the road would conform to the

MUTCD, which required James to use a complete series of signs to alert drivers as

they approached the construction site. In addition, James and the AHTD had orally

modified the plans and specifications to require "Stop" and "Stop Ahead" signs at the

juncture of the temporary ramp at Interstate 40. 

Several witnesses testified that they saw no "Stop Ahead" signs on the night of

the accident. First, Mendez testified that prior to encountering the temporary ramp, he

saw a sign about a half mile back from the temporary ramp that read "Road Work

Ahead" but saw no other signs, warnings, or "Stop Ahead" signs. Second, David

Franklin, another motorist, testified that he did not see any "Stop Ahead" signs. Third,

Jerry Bishop, Roadway's corporate representative, stated that when he went to the

accident scene, he did not see any "Stop Ahead" signs. Fourth, Trooper Michael

Dawson, who investigated the accident for the Arkansas State Police, testified that he

did not see, nor make any note of, any "Stop Ahead" signs. Additionally, the video of

the scene taken from Dawson's in-car camera a few hours after the accident showed

that no stop signs were located in the spot where Traffic Control Supervisor Jeff

Bise—the James employee responsible for setting up the traffic control devices—

originally claimed he erected them.
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 Traffic Control Engineer Archie Burnham testified that if there was a detour

and a lane closure on an interstate highway, the MUTCD would require James to use

a complete series of warning signs to alert drivers as they approached the construction

site; such warnings signs had to appear on both sides of the highway. Burnham also

stated that the failure to use a complete series of signs to repeatedly warn drivers as

they approached the scene would violate the MUTCD and constitute a "gross violation

of the minimum standards in traffic control." Finally, Scott Eldridge, an inspector for

the AHTD, testified that if no "Stop Ahead" signs were present on the night of the

accident, then James would have been in violation of the contract with the State of

Arkansas.

Whether James was negligent in its performance of the contract was a question

of fact for the jury. Given the substantial evidence that the required warning signs

were not in place on the night of the accident as contractually required, we hold that

the district court did not err in refusing to grant the motion for judgment as a matter

of law, or in the alterative, for a new trial. 

B. Jury Instruction

James also argues that the district court erred in giving Instruction No. 25 to the

jury, claiming that the first sentence of the instruction stripped it of its acquiredimmunity defense. In response, the appellees contend that the district court did not

abuse its discretion in instructing the jury according to Arkansas Model Jury

Instruction (AMI) 1202. We hold that the district court did not abuse its discretion in

giving Instruction No. 25. 

Instruction No. 25 stated the following:

It was the duty of James Construction Group, L.L.C., in the performance

of the construction work to use ordinary care to provide for the safety of

the traveling public and to give reasonable warning to travelers of any

hazards created by its activities. It was also the duty of James
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Construction, L.L.C., to use ordinary care to comply with the provisions

of its contract with the Arkansas State Highway Department, including

any modifications thereof, that were inserted for the safety of the public.

The district court took Instruction No. 25 verbatim from AMI 1202. In the

manual, the second sentence of AMI 1202 is in brackets, meaning that the district

court should give it in some circumstances but not others. In contrast, the first

sentence of AMI 1202—the one to which James objects—is not in brackets, which

means that it should always be given. In Arkansas, a trial judge is to give the

applicable model instruction unless it does not accurately state the law. Adkins v.

Kelley, 424 S.W.2d 373, 376 (Ark. 1968). Instruction No. 25 correctly stated Arkansas

law.

With regard to a contractor's duty to protect the public, the Arkansas Supreme

Court stated in Muskogee:

Under the contract Muskogee Bridge was to provide safeguards to

protect the public from dangerous conditions. But apart from the

agreement, Muskogee Bridge, as general contractor, had a duty to protect

the public against unreasonably dangerous conditions on the job site. 

842 S.W.2d at 20. Just as in Muskogee, James had a duty under the contract to provide

safe traffic flow at all times. Bise admitted that James had a duty under the contract

to make its own determinations about what was reasonably necessary to protect the

public's safety. Thus, like Muskogee, the contract required James to provide

safeguards to protect the public from dangerous conditions. In addition, under

Muskogee, apart from the contract, a general contractor has a duty to protect the public

against unreasonably dangerous conditions on the job site. 

Finally, the question of whether a party is entitled to immunity is a question of

law, not fact. See Creashak v. Adhere Sch. Dist., No. 04-1291, 2005 WL 1120239
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(Ark. May 12, 2005) (stating that whether Arkansas school districts are entitled to

sovereign immunity is a question of law). As such, the question of immunity is for the

court. Here, the district court did not give the jury any instructions regarding the

acquired-immunity doctrine. Instead, the district court submitted to the jury the

disputed fact question of whether James performed its work in accordance with the

terms of its contract with the State of Arkansas. Because the jury unanimously

answered "no," the district court determined, as a matter of law, that the acquiredimmunity doctrine did not shield James from liability for its negligence. 

Accordingly, we affirm the district court's denial of James's motion for

judgment as a matter of law and the district court's denial of James's motion for a new

trial. 

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