AAPA Asphalt Meeting 2014
Hotel Capstone
Tuscaloosa, AL
Joe Duncan
Huie, Fernambucq & Stewart
March 12, 2014
Road Builder Laws Have Changed
“Road Builders Get Immunity from the Alabama
Supreme Court” –Jere Beasley Report 8/7/2013
“The reports of my death have been greatly
exaggerated.” – Mark Twain-ish
Even Twain gets misquoted
What has actually changed
For ALDOT & public employees: Nothing
For Contractors:
1. Supreme Court: Hosea Weaver v. Balch
2. Statutory Change
The old law: McFadden v. Ten-T
McFadden: A contractor is entitled to follow the
plans and specifications provided by an engineer
unless those plans would result in an obviously
dangerous or defective condition.
Types of cases against contractors
1.
2.
You didn’t tell the state about an obviously
defective condition
You failed to comply with the contract
requirements: Is this what McFadden really
said?
An example: Dangerous condition
Washington
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Contractor has completed work but project not
accepted
Driver drifts off shoulder
Plans call for 4’ of aggregate to be placed at edge
of pavement to dress edge
No requirement to perform and shoulder work
Plaintiff’s theory: Contractor should have
discussed dangerous condition and inability to
place 4’ of aggregate with ALDOT
Balch
• 5 ½ years before an accident Hosea Weaver
resurfaced a roadway under an ALDOT contract
• Project was completed and accepted by
ALDOT
• At time of accident, a 7-10 inch deep ditch ran
along the shoulder of the road for 500 feet.
•State had maintenance responsibility for road
Hosea Weaver v. Balch
Hosea Weaver v. Balch
Balch Accident
Criticism of some comments:
“It has to be someone’s fault”
“You have to be able to sue someone.”
Is it anyone’s fault? Does someone else have to
be liable simply because the state is not?
Balch Results
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Balch resulted in a $7.5 million verdict
against the road builder
The expert never testified that the road was
dangerous or unreasonable; the only
testimony was that it deviated from the plans
and specifications
Duties
Liability was imposed on the road builder simply
because there was a deviation in the width of
lane and cross slope changed over the course of
500 feet.
The project was match existing.
Balch
True for All Projects
•All work performed by contractors is inspected by ALDOT
• Contractor can not do work outside presence of ALDOT inspector
• Work must conform to ALDOT standards and specifications to be
accepted
For Balch
• Assistant ALDOT engineer for the project agreed that had the
ditch been present, the project would not have been accepted
• Contractor had no duty to maintain shoulder under ALDOT
contract
• ALDOT filled in ditch with gravel after accident
Balch – ARBA Arguments
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The deviation from an ALDOT contract does not equate to
negligence
 Plaintiff argued noncompliance with the contract equaled
negligence
 Plaintiff’s argument ignores dangerous and unreasonable
 Plaintiff’s argument created a moving standard
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Under Plaintiff’s argument - no violation for “match existing”
contact
Upon acceptance by the State, Hosea Weaver had no further
responsibility – including maintenance
Balch – ARBA Arguments
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Not foreseeable that State would simply fail to maintain the
roadway after acceptance
 Plaintiff agreed that accident would not have occurred had state
maintained roadway
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Failure to maintain was an alteration to Hosea Weaver’s “product”
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Contractor should not bear liability for State’s discretion
 State has control over roadway construction
 State can accept or change plan at will
Balch – ARBA Arguments
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State’s inspection and acceptance should create
contractor immunity
 Contractor contracted with the State, not the
Plaintiff
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Upon completion of a project, the State has the
duty to provide safe roads – not contractors
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State’s acceptance of roadway includes any
deviations from contract
Balch Decision
Per curiam: a majority of justices did not agree
What this means: the case is not binding
precedent but is persuasive
Balch decision
1.
2.
3.
4.
Court applied “acceptance doctrine”:
contractor not liable once state accepts
Contractor is not liable due to lack of
causation & proximate cause
Contractor has not duty to repair road
Court reversed decision and ruled in favor of
Hosea Weaver
Alabama Road Builder Statute
Based on these situations, the road builders
proposed a statute in February 2012 to adopt the
acceptance doctrine by statute.
The interested parties were sent to mediation
with the state bar president.
The Process
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The interested parties were referred to a
mediation process with Jim Pratt, bar
president as mediator
Participating parties:
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Counties
ALDOT
ARBA
Plaintiff’s bar
Engineers
Process
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Multiple mediation sessions and meetings
among the parties resulted in several drafts of
the bill
John Cooper, ALDOT director, was integral
in offering testimony/commentary during
mediation to allow the bill’s passage
SB 139
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Section 1. Definitions:
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“Contractor” means any person or entity, and any
subcontractor, director, officer or employee of such a
person or entity, that contracts with the State of Alabama,
a county or other local government to construct, repair or
maintain a highway, a road, a bridge or a street.
“Conclusion of Project” means the date that the Awarding
Authority notifies the Contractor, in writing, that the
Awarding Authority has assumed maintenance
responsibilities for the roadway, or 60 days after the
contractor has notified, in writing, the Awarding
Authority that the Contractor’s work on the project is
completed, whichever is earlier.
SB 139
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Section 1: Definitions
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“Awarding Authority” means:
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The Alabama Department of Transportation, if the
Contractor enters into a contract with the State of Alabama
to construct, repair or maintain a highway, a road or a
street for the State of Alabama; or
The county governing body, if the Contractor enters into a
contract with that county to construct, repair or maintain a
highway, a road or a street for that county; or
The governing body of any other local government, if the
Contractor enters into a contract with that local
government to construct, repair or maintain a highway, a
road or a street for that local government.
SB 139
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“Specifications” means specifications, plans,
drawings, bid documents or any other written or
electronically stored requirements and details the
Contractor agrees to perform.
“Dangerous Condition” means a condition
that is not reasonably safe for the intended use
of the roadway and is capable of causing a
person physical injury or death under the
anticipated use of the roadway.
Section 2:
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A Contractor is justified ordinarily in relying upon the
specifications that are contained in the contract with an Awarding
Authority. No Contractor shall be held civilly liable for work
performed on a highway, road, bridge or street including repairs,
construction, or maintenance on behalf of the Awarding Authority
unless it is shown by a preponderance of the evidence that physical
injury, property damage or death is proximately caused by:
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a failure by the Contractor to follow the plans and specifications
resulting in a Dangerous Condition; or
the Contractor’s performance of the contract in compliance with the
plans and specifications creates a condition that should have
appeared, to a reasonably prudent contractor, to be a Dangerous
Condition; or
a latent defect which creates a Dangerous Condition that is the result
of the work of the Contractor.
Section 2: Plain English
A contactor is not liable for a condition of a road
unless:
1. It fails to follow the plans and specs, resulting
in a dangerous condition
2. Following the plans results in an obviously
dangerous condition
3. The contractor’s work creates a latent defect
Section 3
During the course of construction, a Contractor who constructs,
maintains or repairs a highway, road, street, or bridge for the
Awarding Authority is not liable to a claimant for personal injury,
property damage or death arising from the performance of such
construction, maintenance, or repair, if, at the time of the personal
injury, property damage or death, the Contractor was in compliance
with contract documents material to the condition, including the
Traffic Control Plan, that was the proximate cause of the personal
injury, property or death unless following the plans and
specifications would result in a Dangerous Condition that should
have appeared to be defective to a reasonably prudent contractor or
that the contractor should have known that following the plans and
specifications could create a Dangerous Condition that caused the
injury or death.
Section 3 Plain English
The contractor will not be liable if it follows
the plans and specs unless doing so creates an
obviously dangerous condition.
Section 4
If, prior to or during the course of construction, a Contractor
discovers or determines that following the plans and specifications
could result in a potentially Dangerous Condition then the
Contractor shall, with specificity of such condition(s), expressly
notify the Chief Engineer of the Alabama Department of
Transportation in writing by certified mail, return receipt
requested. The Alabama Department of Transportation, or the
Awarding Authority, shall respond to the specific condition(s)
raised within fourteen (14) days in writing as to its decision as to
the appropriate response to the Dangerous Condition. The
Contractor shall not be liable for any claim relating to any decision
made by the Alabama Department of Transportation or Awarding
Authority as to the appropriate response, design decisions or
engineering decision, if any, to respond to the potentially
Dangerous Condition identified.
Section 4 Plain English
If the contractor discovers a dangerous
condition, then it can write to ALDOT for
direction. ALDOT has 14 days to respond
and the contractor is not liable for how
ALDOT elects to address the situation.
Section 5
The Contractor shall bear no civil liability for any alleged
property damage, personal injury, death or other civil
claims made by non-contractual third parties arising from
the design decisions or professional engineering judgment,
including decisions relating to the proper scope or
inspection of the project, by the Awarding Authority.
This section shall not apply to situations in which:
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the Contractor contracts in whole or in part to design the
roadway or project or to provide professional engineering
services as to the design of the roadway; or
the Contractor undertakes to provide design or professional
engineering services as to the roadway or project.
Section 5 plain language
a)
b)
A contractor is not liable for engineering
decisions made by the designer unless:
The contractor is paid to design the road or
The contractor attempts to provide
engineering
i.e., design/build projects
Section 6
The Contractor shall bear no civil liability for any
Dangerous Condition that is outside of the scope of the
project or that is in excess of any requirement of the
governing plans and specifications provided by the
Awarding Authority. This section shall not apply to
situations in which:
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the Contractor contracts to design in whole or in part the
roadway or project or to provide professional engineering
services as to the design of the roadway; or
the Contractor undertakes to provide services as to the
roadway or project that are outside the scope of the
project or that are in excess of any requirement of the
governing plans and specifications.
Section 6 Plain Language
The contractor is not responsible for issues
outside the scope of the project unless
a) The contractor is hired to address such issues
b) The contractor undertakes to address those
issues
Example: A resurfacing project that does not
include shoulder work.
Section 7
A Contractor shall bear no civil liability to a claimant for
personal injury, property damage, or death which occurs
subsequent to the Conclusion of the Project where the
proximate cause of the personal injury, property damage or
death is occasioned by a failure of the Awarding Authority
to properly maintain the roadway or any of its features,
including shoulders, unless:
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a Contractor contracts in whole or in part with the Awarding
Authority to maintain the roadway, or any of its features,
including shoulders, or project in question; or
the Contractor undertakes, independent of a contract, to
maintain a roadway or any of its features, including shoulders.
Section 7 Plain Language
a)
b)
The contractor is not responsible for any
accident that is proximately caused by the
state/county’s failure to maintain the road
unless:
The contractor is hired to maintain
The contractor undertakes to maintain
Section 8
Nothing in this Act shall limit or eliminate the
liability of a Contractor for any civil action
based on any alleged loss of or damage to, the
property of a utility that is rightfully located
on, or adjacent to, the right-of-way of any
highway, road or street on which the
Contractor performed the construction, repair
or maintenance.
Section 9
The provisions of this act are severable. If
any part of this act is declared invalid or
unconstitutional, that declaration shall not
affect the part which remains.
Section 10
This act shall only apply to a cause of action
which accrues after the effective date of this
act. Pursuant to this act, a cause of action
accrues at the time of property damage or the
occurrence of the personal injury or death that
is made the basis of the civil action.
Section 11
Nothing in this law shall be interpreted or
construed to alter or affect the rights of any
Awarding Authority to make a claim against a
contractor or to exempt a contractor from
compliance with all provisions of contracts
between such contractors and an Awarding
Authority.
Section 12
This act shall become effective immediately
following its passage and approval by the
Governor, or its otherwise becoming law.
A Lot of Information in a Little Time
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Questions?
Contact us:
Huie, Fernambucq & Stewart, LLP
Joe Duncan
205-874-3420
jduncan@huielaw.com
twitter: @joeduncanatty