2008 WI App 114
court of appeals of
published opinion
Case No.: |
2007AP1543 |
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Complete Title of Case: |
†Petition for review filed. |
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Estate of Joanna Randall Brown, Estate of Brown and Plaintiffs-Appellants, † v. Mathy Construction Company and ABC Insurance Company, Defendants-Third-Party Plaintiffs-Respondents, v. Mattison Contractors, Inc., Kraemer Company LLC, Valiant Insurance Company, Mutual Insurance Company, Westport Insurance Company and General Casualty Company of Third-Party Defendants. |
Opinion Filed: |
June 26, 2008 |
Submitted on Briefs: |
January 14, 2008 |
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JUDGES: |
Dykman, Lundsten and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Dan Arndt of Arndt, Buswell & Thorn S.C., |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-third-party-plaintiffs-respondents,
the cause was submitted on the brief of Michael S. Kreidler of Stich, Angell, Kreidler & Dodge,
P.A., |
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2008 WI App 114
COURT OF APPEALS DECISION DATED AND FILED June 26, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
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Estate of Joanna Randall Brown, Estate of Brown and Plaintiffs-Appellants, v. Mathy Construction Company and ABC Insurance Company, Defendants-Third-Party Plaintiffs-Respondents, v. Mattison Contractors, Inc., Kraemer Company LLC, Valiant Insurance Company, Mutual Insurance Company, Westport Insurance Company and General Casualty Company of Third-Party Defendants. |
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APPEAL
from an order of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 DYKMAN, J. The Estate of Joanna Brown
appeals from an order granting summary judgment to Mathy Construction Company,
a contractor for the Wisconsin Department of Transportation (DOT). Joanna and her daughter Dallas died when
their car struck an exposed bridge abutment on a segment of a state highway
that was under construction. The trial
court held that under Estate of Lyons v. CNA Insurance Cos.,
207
Background
¶2 The following undisputed facts come from the pleadings, affidavits, and depositions. On June 22, 2002, Joanna Brown was driving on a highway under construction as part of a DOT project when her car struck an exposed bridge abutment and caught fire. Joanna and her nine-year-old daughter, Dallas, were fatally injured.
¶3 Mathy was DOT’s prime contractor for the construction project. The bridge abutment that Joanna’s car struck was exposed due to construction. As part of the project, workers removed bridge guardrails that provided some protection to bridge users, and after further road work, replaced them with new guardrails, referred to as “energy absorbing terminals” (EATs). DOT had decided to keep the road open during construction, but specified required safety measures while the work was in progress, including signs and drums. DOT also specified that the construction work was to begin on April 15, 2002, and be completed in sixty working days.
¶4 Workers completed the removal of old guardrails throughout the project site by April 25, 2002. On May 29, 2002, workers began installing the EATs, and this process continued along the project area throughout June. The three-mile stretch of State Trunk Highway 131 where the accident occurred was one of the last project areas where the EATs were installed. As of June 22, the date of the accident, EATs had not yet been installed there. The entire project was completed by early July, within the sixty days allotted by DOT.
Standard
of Review
¶5 We review summary judgment de novo, without deference to the
trial court’s conclusions. Lyons, 207
¶6 The issue of governmental immunity involves applying legal
standards to a set of facts, which is a question of law. Lodl v. Progressive N. Ins. Co.,
2002 WI 71, ¶17, 253
Discussion
¶7 The estate claims that Mathy negligently delayed installing
the new EATs for twenty-nine days after it was feasible to do so, thus causing
the accident that killed Joanna and Dallas.
It also claims that Mathy is not entitled to immunity for this
negligence because the
¶8 In Lyons, 207
¶9 We agreed, noting that “the focus of [the] inquiry should be
whether Strand was simply acting as an ‘agent’ of governmental authorities who
had retained ultimate responsibility for these aspects of the bridge
design.”
[a]n independent professional contractor who follows official directives is an “agent” for the purposes of § 893.80(4), Stats., or is entitled to common law immunity when:
(1) the governmental authority approved reasonably precise specifications;
(2) the contractor’s actions conformed to those specifications; and
(3) the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials.
¶10 The estate asserts that Mathy has not met the first prong for
governmental immunity under Lyons because the state did not
provide Mathy with reasonably precise specifications for when to install the
EATs. The estate argues that
¶11 The estate’s specifications argument misses the mark. The question is not whether DOT did or did not specify the amount of time the abutment was to be unprotected by a guardrail. This formulation of the issue ignores the safety precautions that were specified. That is, it makes no sense to isolate the sixty-day timing specification from the overall safety requirements. The question is not what other safety precautions might have been taken, but whether the safety requirements provided by DOT were reasonably precise specifications. The undisputed evidence demonstrates that they were.
¶12 DOT’s plans allowed for the possibility that there would be an undetermined lag between removal of the old guardrails and installation of the EATs. DOT decided to keep the road open for the project and directed that signs and barrels were to be used to indicate construction was occurring. DOT’s plans for the project provided several pages of required safety measures during construction, including official road signs, drums placed at fifty-foot intervals, delineator posts, and pavement markings. DOT provided a diagram showing placement of the traffic control measures to be used for lane closure, such as signs and flaggers (people holding “stop/slow” paddles), and diagrams specifying the pavement markings that should be made. DOT determined that no temporary barricades or guardrails were necessary between the time that the old guardrails were taken down and the EATs were put in place because, according to the state design, the traffic control measures and placement of barrels was sufficient to warn traffic until EATs could be installed. DOT also specified that the construction work was to begin on April 15, 2002, and be completed in sixty working days. We conclude that these safety requirements were “reasonably precise specifications.”
¶13 The estate argues that additional safety measures were
necessary, including placing the new EATs as soon as it was feasible to do
so. In the estate’s view, because the
state did not require EATs to be installed immediately after preparation work
was done, the contract was not reasonably precise. But a contract which does not require a
specific item or timetable for installation can be as precise as one which does
require those items. If contractor
immunity required a contract to list not only all work and materials required
but all work and materials not required, state contracts would approach
encyclopedic proportions. A contract is
reasonably precise if it reasonably and precisely lists items required; common
sense dictates that items not required by the contract do not obligate the
contractor to provide them. Moreover,
while the estate’s timetable argument may or may not support a negligence
finding, it does not go the question of whether Mathy is entitled to
governmental immunity under
¶14 Part two of the
¶15 Part three of the
¶16 The estate also argues that even if Lyons applies, Mathy is
not entitled to governmental contractor immunity because Mathy had a
ministerial duty to protect the public from a known dangerous condition and is
therefore liable. See Cords v. Anderson,
80
¶17 Because the undisputed facts show that (1) DOT provided Mathy with reasonably precise specifications for how to carry out the road construction project, (2) Mathy’s work conformed to DOT’s project specifications, and (3) DOT was aware of the dangers that the exposed bridge abutment may have presented, we conclude that Mathy is entitled to governmental contractor immunity. Furthermore, we conclude that Mathy did not have a ministerial duty to implement additional safety precautions. Accordingly, we affirm the trial court’s grant of summary judgment to Mathy.
By the Court.—Order affirmed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] We need not address the parties’ arguments over safety precautions that could have been, but were not, used or required, such as temporary guardrails or road closure. That is a negligence issue. Instead, our focus is on the safety requirements provided to Mathy by DOT, which relates to the issue of governmental immunity.