Green v. Bannock Paving Co.

720 P.2d 186, 111 Idaho 3, 1986 Ida. LEXIS 471
CourtIdaho Supreme Court
DecidedMay 29, 1986
Docket16038
StatusPublished
Cited by10 cases

This text of 720 P.2d 186 (Green v. Bannock Paving Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Bannock Paving Co., 720 P.2d 186, 111 Idaho 3, 1986 Ida. LEXIS 471 (Idaho 1986).

Opinions

DONALDSON, Chief Justice.

In the early morning hours of November 22, 1978, a diesel tractor-trailer rig missed the entrance to a detour on U.S. Highway 30, approximately 5 miles west of Soda Springs, Idaho, and crashed into a concrete porta-rail which was erected to block access to a newly constructed portion of the highway. Appellant Harvey Green was injured in the accident.

Green and Chester Eason were employed by Alex and Gloria Ferrenberg as long-haul truck drivers. The pair had completed a trip to Denver, Colorado and were returning to Nyssa, Oregon when the accident occurred. At the time of the accident, Eason was driving the truck while Green slept in the “sleeper cab.”

On November 18, 1980, Green initiated the present action seeking damages for personal injuries and economic losses against the State of Idaho, Caribou County, Chester Eason, Alex and Gloria Ferrenberg and three John Does. Also named as defendants were the three companies involved in construction work on Highway 30: Western Construction Company (Western), Bannock Paving Company (Bannock), and Allied Paving Corporation (Allied). Green alleged, first, that the warning signs and barricades marking the detour were improperly constructed and maintained and, second, that Eason was operating the vehicle negligently when the accident occurred.

On August 25,1981, Caribou County was voluntarily dismissed as a defendant. Thereafter, the State of Idaho and the three construction companies moved for summary judgment. On January 14, 1982, Judge Rasmussen granted summary judgment to Allied but denied it to the State of Idaho and the two other construction companies. Prior to trial, on September 4, 1984, Bannock again moved for summary judgment, this time before Judge Smith. The motion was denied, and the case proceeded to trial.

A jury trial commenced on September 17, 1984, before Judge Smith. Neither Eason nor the Ferrenbergs appeared. On November 17, 1984, the jury returned a special verdict assessing the total amount of damages sustained by the Greens at $217,-565.00 and apportioning the relative degree of liability as follows:

1. Harvey Green 15%
2. State of Idaho 40%
3. Bannock Paving 0%
4. Western Construction 0%
5. Chester Cecil Eason 35%
6. Ferrenbergs 5%
7. Non-party vandals who may have damaged the warning sign 5%
TOTAL 100%

Judgment was entered against the State of Idaho for the sum of $87,026.00 and against Chester Eason for $76,147.75 on November 27, 1984. On November 30, the Greens moved for judgment notwithstanding the verdict asserting that Western and Bannock were equally liable with the State of Idaho. The motion was denied. The Greens then moved for reconsideration which motion was also denied.

On April 9, 1985, the court entered an amended judgment increasing the award against the State of Idaho to $100,000.00. The Greens filed their Notice of Appeal on May 21, 1985. On July 17, the Greens and the State of Idaho filed a Satisfaction of Amended Judgment and entered into a stipulation and order for the dismissal of the State with prejudice.

On appeal, the Greens allege that the trial court erred in the following respects: First, in granting summary judgment to [5]*5Allied; second, in instructing the jury on the construction companies’ duty to the traveling public; and, finally, in refusing to impute the State of Idaho’s negligence to the construction companies as a matter of law. We will address each issue in the order stated.

I

Summary Judgment

The Greens first allege that the trial court erred in granting summary judgment to Allied. Summary judgment is appropriate only where the pleadings, depositions, and affidavits taken together demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). When the district court granted summary judgment to Allied, there was simply no evidence to indicate that Allied’s work on the detour contributed, in any way, to the disputed accident.

The Greens alleged that Allied Paving, along with the other named defendants,

“Failed to properly maintain the road signs and other markers on said highway and failed to construct and maintain an appropriate warning system to advise vehicle operators of hazardous conditions then and there existing at the scene of the accident and further failed to properly construct and make noticeable barricades and other facilities to warn of the presence of said dangers.”

However, it was uncontroverted that Allied’s involvement in the construction of the detour was limited to paving the detour during the last two weeks of September. There was no allegation that the paving contributed to the accident. Allied was not involved in the design, maintenance or placement of the signs and barricades which were alleged to have caused the accident. When the accident occurred, Allied was off the project and its work had been accepted by the State.

Although we recognize that motions for summary judgment should be granted with caution, Bailey v. Ness, 109 Idaho 495, 497, 708 P.2d 900, 902 (1985), the burden is, nevertheless, on the party opposing the motion to set forth specific facts showing there is a genuine issue for trial. I.R.C.P. 56(e). In the instant case, there was simply no evidence presented to create a disputed issue of material fact that the construction of the detour was a proximate cause of the Greens’ injuries. Accordingly, the district court did not err in granting summary judgment to Allied.

II

The Construction Contractors’ Duty

The Greens next allege that the trial court erred in refusing to instruct the jury that Bannock and Western had a primary, non-delegable duty to maintain U.S. Highway 30 in a safe condition for travelers during the entire construction period. The trial court instructed the jury, in Instruction No. 3, that the construction companies had a general duty to use ordinary care under all the facts and circumstances of the case. While the contract between the State and the companies might augment that duty, the court instructed, the provisions of the contract could not set forth a standard of care different from the duty to use ordinary care. The court further instructed the jury, in Instruction No. 12, that because a public works contractor is required to follow the plans and specifications submitted by the State, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of work where the contractor performed the work in strict accordance with those plans and specifications. The Greens contend that Instruction No. 12 is an incorrect statement of Idaho law and that the two instructions, taken together, created an insoluble conflict mandating a reversal of the jury verdict of no negligence on the part of Bannock and Western.

Contrary to the Greens’ contention, Instruction No. 12 is a correct statement of Idaho law. As this Court has stated on several occasions, the rule in Idaho is that where a public works contractor has per[6]

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Green v. Bannock Paving Co.
720 P.2d 186 (Idaho Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
720 P.2d 186, 111 Idaho 3, 1986 Ida. LEXIS 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-bannock-paving-co-idaho-1986.