Indiana Department of Transportation (INDOT) and the State of Indiana v. Howard

We represented the parents of Amber Howard, who drove her car off a steep drop-off at the edge of a highway under construction one dark night. Required barrels and safety cones were not set out to mark the hazard. In an interlocutory appeal from the denial of summary judgment, INDOT argued that its only duty was to supervise the contractor on the job. The appellate court found otherwise. INDOT v. Howard, 879 N.E.2d 1119 (Ind. Ct. App. 2008) The case is now slated for trial in July 2009.

Our brief argued for application of precedents,  including Chandradat v. State, 830 N.E.2d 904 (Ind. Ct. App. 2005), transfer den., showing that INDOT had a non-delegable duty to maintain safe road construction. Below is a section of the brief that wove together previously cited facts with legal theory.

III. Genuine issues of material fact exist concerning INDOT’s negligent supervision of E& B Paving’s work.

Even if, as INDOT contends, the agency’s non-delegable duty to maintain the safety of the state highway extended only to a duty to supervise E&B, it was not an abuse of discretion for the trial court to vacate the summary judgment in favor of INDOT. The facts of this case show genuine issues of material fact as to whether INDOT’s supervision was adequate.

On the day of the crash that killed Amber, INDOT knew that the temporary tape marking the center of sections of State Road 8 under construction had come off, just as it knew the same problem had been occurring since the week before. INDOT also knew on the day of Amber’s death that its contractor had failed to place required drums to mark the edge of the road in the vicinity of Amber’s crash. While the regulations called for such barrels every 200 feet, there were no barrels for at least an eighth of a mile, and perhaps as much as a half a mile, prior to the site of Amber’s crash. Nor were cones in place, allowed in lieu of barrels during daylight. Since INDOT was specifically aware of the need for more barrels, it must also have been aware of the lack of cones and marking tape. While INDOT did request its contractor put in barrels, there is no evidence that it followed up to insure the job was done before nightfall, when the danger of the unmarked road with steep edges would heighten and when the barrels were required to be placed. In fact, the job wasn’t done, and the agency did not bother to remind its contractor of the need for the barrels and tape until the next day, after Amber’s death. The evidence also shows INDOT failed to insure that E&B put down the required marking tape and cones that day. Under these circumstances, it is an issue of fact as to whether INDOT adequately supervised E&B’s work.

In carrying out its duty to supervise, INDOT was required to exercise reasonable care. In Bouras, supra, 423 N.E.2d at 744-745, the court discussed this general duty, and noted that it

arises regardless of whether the State has actual knowledge or notice of a defect. Where there is actual knowledge by the State of an unsafe condition, it is obviously unreasonable and imprudent not to act to remedy the danger. However, the State also is chargeable with knowledge of a dangerous condition when the condition is of such a nature the State authorities or its agents could in the exercise of reasonable diligence, have discovered and corrected it. [citation omitted] Where there is actual or constructive knowledge of an unsafe condition, there is a breach of the duty of care if the State does not act.

INDOT does not deny the existence of the danger, and its duty to act. The only question is whether its duty was fulfilled simply by asking its contractor to put out additional warning drums. In asserting that to be the case, INDOT relies upon E&B’s “yes” answer when asked whether “it would be appropriate for INDOT to rely upon E&B to carry out its request to place more barrels on a particular project?” (App. 63, Br. 11) But E&B Paving’s answer was a given. What company would assert that it is not appropriate for a regulatory agency, and employer, to rely upon it? A reasonable jury, however, could find any such reliance was not reasonable, given the seriousness of the danger and given E&B’s repeated failures with the road marking tape. In the end, it is up to the jury, weighing all the facts, to determine whether INDOT acted appropriately, and not for this Court to do so as a matter of law based on the inevitable claims by a contractor that it could be trusted.

Indeed, if INDOT could merely rely on verbal promises by its contractor that safety measures would be undertaken, there would be no need for supervision in the first place. The incorporation of the INDOT safety specifications into the E&B construction contract alone would be enough for the agency to claim that it had adequately supervised E&B’s specifications. If INDOT can, as a matter of law, rely solely upon a contractor’s verbal assurance that work will be done according to specifications, it should even more clearly be able to rely upon the contractor’s written, binding contractual promise that the work will be done. But a promise is not performance, and a mere promise and acceptance of a duty by the contractor cannot, as a matter of law, relieve INDOT of its duty to supervise highway construction. To hold otherwise would reduce the agency’s duty to supervise to a mere matter of insuring that formalities are met.

Aside from its statutory duty to, at the very least, adequately supervise the work of its contractor, INDOT can be held liable under operation of general negligence principles. The elements of a negligence action have long been recited by courts in Indiana and elsewhere as duty, breach, causation and harm. City of Gary v. Smith & Wesson,801 N.E.2d 1222, 1241 (Ind. 2003). The state’s general duty to exercise reasonable care in the maintenance of its highways for the safety of the motoring public is well established. See e.g. Bouras, supra, 423 N.E.2d at 744. Where duty is already recognized, it is to be followed, and the court need not engage in a balancing test to determine its existence. City of Gary, supra, 801 N.E.2d 1241. INDOT’s common law duty to act with reasonable care is not pre-empted by the agency’s statutory obligations of care. See Picadely, Inc. v. Colvin, 519 N.E.2d 1217, 1220 (Ind. 1988). Aside from duty, the remaining elements — breach, causation and harm — typically are questions to be answered by the jury, not the court. Peak v. Campbell, 578 N.E.2d 360, 361 (Ind. 1991).

In this case, the ultimate harm is clear. Amber is dead. The monetary extent of that harm can only be decided by the jury. Breach of duty, and causation, as in the usual case, also pose fact questions suitable for the jury to decide.

To determine whether INDOT breached its duty of reasonable care, the standard to be applied is that care which would be exercised by an ordinary prudent person under the circumstances. Bouras, supra, 423 N.E.2d at 744. The same reasonably prudent person standard is to be used in specifically determining whether the agency was negligent in its supervision of E&B. Stumpf v. Hagerman Construction, 863 N.E.2d 871 (Ind.Ct.App. 2007), citing Chandradat, supra, 830 N.E.2d at 908.

Since INDOT called for the placement of more orange barrels, it is a reasonable inference that the agency actually knew of the more than three inch drop-off from the unmarked edge of State Road 8. After all, barrels were only required  to be placed when the drop-off was greater than three inches. INDOT admitted that a drop-off of that height posed a hazard. Since INDOT noted the need for new marking tape, it is also a reasonable inference that INDOT knew the road was unmarked in portions of the construction zone. Nightfall would, inevitably, increase the danger, and bring the conditions so graphically described by the investigating police captain: “[O]nce I got past the section of road that had the orange and white barrels alongside of it … I had to slow down because I couldn’t see the road, I couldn’t see the berms, I couldn’t see anything at all at that point, and there was nothing on the edge of the road such as a cone or a barrel that would mark the side of the road.” (App. 103, emphasis added) INDOT’s own specifications applicable to the project required the orange drums to be in place by nightfall and allowed placement of cones during the day. Thus INDOT itself recognized the increased danger, and its corresponding responsibility to make sure the drums were in place before darkness fell. It failed to insure that the cones and drums were placed immediately,and it failed to insure that the drums were in place by the end of the day.

General negligence principles “involve a balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the precautions which would be effective to avoid the harm.” Miller v. Todd, 551 N.E.2d 1139, 1141 (Ind. 1990) (citing Larsen v. General Motors Corp. 391 N.E.2d 495, 502 (8th Circ. 1968)). The care required “is always reasonable care. This standard never varies, but the care which is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.” Smith & Wesson, supra 801 N.E.2d at 1242.

Here, the danger was great, and the remedy was simple. INDOT could have followed up its request that its contractor put out more barrels and marking tape that day. Its inspector could have driven the two mile construction site and made sure that these fundamental safety requirements were met by the end of the day. The agency admitted it had the authority to require compliance that day by its contractor. In weighing the likelihood of harm against the gravity of the harm if it happens against the burden of precautions by INDOT, a reasonable jury could find the agency did not act reasonably when it failed to follow up and make sure that its contractor, in fact, put out the required barrels and tape. The question of breach of duty is a matter for the jury to decide, and the trial court did not abuse its discretion in so determining.