Milazzo v. Elite Contracting Grp., Inc.

565 F.Supp.3d 777

Ronald MILAZZO, Plaintiff,

v.ELITE CONTRACTING GROUP, INC., Defendant.

Civil Action No. 1:19-cv-1607

United States District Court, E.D. Virginia, Alexandria Division.

Signed October 6, 2021

Richard Neal Shapiro, Shapiro, Appleton & Duffan, P.C., Virginia Beach, VA, for Plaintiff.

Kathryn Elizabeth Bonorchis, Lewis Brisbois Bisgaard & Smith, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

On October 18, 2017, Plaintiff Ronald Milazzo, a tourist from New York, crashed into a metal beam ("Beam") while riding a bicycle south on the 900-block of South Royal Street in Alexandria, Virginia. The Beam that Plaintiff crashed into was part of a security gate ("Gate") on the 900-block of South Royal Street that limited entry to the area directly behind the Gate, which led to an underpass beneath I-495 and a bike path to the Mount Vernon Trail. Defendant Elite Contracting Group ("Defendant"), the sole defendant in this action,¹ does not own the Gate. Defendant also did not design, manufacture, or install the Gate. But at the time of Plaintiff's accident, Defendant held a task-order contract with the Virginia Department of Transportation ("VDOT"), the Gate's owner, to service and maintain the Gate.

The Complaint alleges that on October 18, 2017, and in the years preceding that date, Defendant (1) negligently failed to maintain the Gate and (2) negligently failed to warn oncoming bicyclists about the Gate. Defendant does not dispute that, as a maintenance contractor, Defendant had both a contractual and Virginia common law duty to maintain the Gate, and that if the Gate truly malfunctioned as a result of Defendant's negligence, then Defendant is liable here. But Defendant disputes that Defendant had a duty to warn oncoming bicyclists about the Gate, arguing that any such duty lies solely with VDOT, the property owner.

At issue now is Defendant's Motion in Limine to Exclude Evidence and Argument (Dkt. 96) that Defendant could or should have posted warning signs near the Gate, including a warning sign that would specifically instruct bicyclists on South Royal Street not to ride through the Gate. The matter has been fully briefed and argued, including a hearing on the matter on June 10, 2021. Additionally, the parties each submitted supplemental briefing on the matter, which also has been considered and reviewed. Accordingly, the matter is now ripe for disposition.

I.

The following record facts are pertinent to resolution of Defendant's Motion in Limine (Dkt. 96).

A. The Gate

• The Gate spans the width of the 900-block of South Royal Street in Alexandria, VA.

• The Gate is located near the Mount Vernon Trail, a trail for pedestrians and bicyclists.

• The Gate has yellow posts on each side that are connected by the Beam, which extends horizontally between the Gate's yellow posts.

• The Beam is sometimes recessed into a compartment in the roadway. In this respect, the Beam is designed (1) to retract from an above-ground position and enter into the roadway and (2) to rise from the below-ground position in the roadway to an above-ground position, on a timed basis after traffic passes through the Gate.

• Defendant did not design, manufacture, or install the Gate.

• Defendant does not own the land on which the Gate sits.

• VDOT placed a white sign near the Gate that says: "Authorized Vehicles Only." Defendant was not involved in the decision or placement of the "Authorized Vehicles Only" sign.

• There is a keypad near the "Authorized Vehicles Only" sign for an authorized user to type in a code and thereby lower the Gate and gain entrance.

• To the immediate right of the Gate, there is a paved path that goes around the Gate.

• The parties have submitted into the record video evidence of the Gate that post-dates Plaintiff's accident on October 18, 2017. This post-accident video evidence reflects that, in the autumn of 2017, (1) some bicyclists approaching the Gate traveled through the Gate and (2) that some bicyclists approaching the Gate travelled around the Gate on the paved path that is to the immediate right of the Gate.

• At the time of Plaintiff's accident, apart from the "Authorized Vehicles Only" sign, there was no sign near the Gate that specifically warned bicyclists not to travel through the Gate.

• The parties have submitted into the record an image of the Gate dated May 2017, five months prior to Plaintiff's accident on October 17, 2017.

?

Pl.’s Ex. 11 (Dkt. 22-11) (image on Gate dated May 2017).

B. Contract to Maintain the Gate

• Defendant and VDOT have an annual task order contract ("Task Order Contract") which requires Defendant to maintain the Gate. Specifically:

• (1) The Contract requires Defendant to perform "corrective" maintenance on the Gate "upon notification from VDOT," and

• (2) The Contract requires Defendant to perform "preventative" maintenance on the Gate "on a -pre-arranged schedule."²

• The parties disagree whether the Contract requires Defendant to post warning signs near the Gate that would warn oncoming bicyclists not to travel through the Gate.

• Steven Weber, the VDOT employee who oversees administration of the Task Order Contract, has filed an Affidavit stating that the Contract:

• (1) does not permit Defendant to post permanent warning signs about the Gate;

• (2) permits only VDOT to post permanent warning signs about the Gate; and

• (3) permits Defendant to post temporary warning signs "while it is on site performing maintenance and/or actively working on a project."³

• Defendant and VDOT also have a master contract ("Master Contract").⁴ The parties disagree whether the Master Contract requires Defendant to post warning signs near the Gate that would warn oncoming bicyclists not to travel through the Gate.

II.

The question presented by Defendant's Motion in Limine is whether a maintenance contractor—i.e., a contractor retained by the property owner to maintain a structure on the property—has a duty to warn the public that the structure it maintains might be dangerous. If a maintenance contractor does not have any contractual or Virginia common law duty to warn, then Plaintiff may not argue to the jury that Defendant should have posted a warning sign near the Gate to warn oncoming bicyclists that they should not travel through the Gate and that failure to post such a sign constituted negligence by Defendant.

Analysis properly begins with review of a property owner's duty to warn. Under Virginia law, a property "owner must give notice or warning of an unsafe condition which is known to him and unknown to [an] invitee, [but] such notice is not required where the dangerous condition is open and obvious." Tate v. Rice , 227 Va. 341, 345, 315 S.E.2d 385 (1984). In certain circumstances, this well-settled duty to warn may be delegated to a contractor. For instance, this duty may be explicitly delegated by contract. See, e.g., Boyd, Higgins & Goforth v. Mahone , 142 Va. 690, 693, 128 S.E. 259 (1925) ("Under the contract it was the duty of the defendant [contractor] to establish and maintain barricades, danger warnings, and detour signs ..."). Contractors may also assume a duty to warn at common law when their work itself gives rise to a dangerous condition on another's property. See, e.g., T. E. Ritter Corp. v. Rose , 200 Va. 736, 741, 107 S.E.2d 479 (1959) (finding that a railroad contractor "owed a common law duty to guard the hazardous situation created by the work").

For reasons stated below, Defendant did not owe any contractual or common law duty to post a sign near the Gate to warn oncoming bicyclists that bicyclists should not travel through the Gate. Even assuming that VDOT (the property owner) owed a duty to warn bicyclists about the Gate, nothing in the record supports the contention that Defendant assumed that duty. First, the relevant contractual language does not explicitly delegate a duty to warn to Defendant. Second, Defendant did not give rise to the existence of the Gate, which pre-existed the relevant maintenance contract, and thus Defendant did not assume a common law duty to warn under operative Virginia or Fourth Circuit precedent. Accordingly, Defendant's Motion in Limine must be granted.

With respect to Defendant's contractual obligations, nothing in the Task Order Contract or Master Agreement supports the existence of a contractual duty of Defendant to warn in this case. The Task Order Contract and Master Agreement merely state that Defendant had a duty to warn of hazardous conditions that Defendant created during the course of Defendant's work on the Gate. For example, Plaintiff cites the following portions of the Master Agreement between Defendant and VDOT:

• "The contractor shall provide all safeguards, safety devices and protective equipment ... reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. " See Dkt. 137-1 at 89 (emphasis added).

• "Contractor shall continuously maintain adequate protection of all persons and property from damage, injury or loss arising in connection with this Contract. " See Dkt. 137-1 at 55 (emphasis added).

Notably, this language does not impose a duty on Defendant as broad as Plaintiff contends; to the contrary, the contractual language gives rise to a duty to warn only with respect to work performed by Defendant in connection with the contract. In other words, under the Master Agreement, Defendant would need to take reasonable safety precautions when working on maintenance of the Gate. But that does not mean Defendant assumed a contractual duty to post warnings at all times, including when Defendant was not performing maintenance. And none of the other contractual language cited by Plaintiff arguably delegates from VDOT to Defendant a general duty to warn.⁵ In sum, there is no basis in Defendant's contract with VDOT to conclude that Defendant had a contractual duty...