Shipp v. W. Eng'g, Inc.

55 Cal.App.5th 476

269 Cal.Rptr.3d 503

Kevin SHIPP et al., Plaintiffs and Appellants,

v.WESTERN ENGINEERING, INC. et al., Defendants and Respondents.

C087371

Court of Appeal, Third District, California.

Filed October 5, 2020

Certified for Partial Publication.^*

Mastagni Holstedt, A.P.C., David P. Mastagni and Grant A. Winter, Sacramento, for Plaintiffs and Appellants.

Mark A. Goodman and Joseph A. Hearst for Defendants and Respondents.

MURRAY, Acting P. J.

This case presents the question of whether a highway contractor controlling traffic on a public highway owes a duty of care to a motorist who was rear-ended when forced to stop behind a vehicle that was unable to turn left at an intersection that was blocked by stopped traffic controlled by the contractor. We conclude that the contractor here did indeed owe a duty of care.

Defendants were performing construction work on Latrobe Road in El Dorado County. They had implemented a "reversing lane closure" traffic control, reducing traffic to one lane. Traffic going in one direction would be stopped, traffic going in the other direction would be allowed to proceed, and then the procedure would be reversed. A flagger to control northbound traffic was positioned at the south end of the reversing lane closure on Latrobe Road, north of where it intersected with Ryan Ranch Road. Because the flagger was positioned north of the intersection, when the flagger stopped northbound traffic, that traffic could back up, extending south into the intersection.

Plaintiff Kevin Shipp (individually, plaintiff) was driving south on Latrobe Road when he came to a stop behind two other vehicles. The vehicle two cars ahead of plaintiff was attempting to turn left onto Ryan Ranch Road, but it could not do so because northbound traffic, stopped by the flagger at the south end of the reversing lane closure, was stopped in the intersection. Seconds after plaintiff stopped, a vehicle driven by George Smithson rear-ended plaintiff's vehicle.

Plaintiff and his wife (collectively plaintiffs) commenced an action against defendants, including defendant Western Engineering Contractors, Inc. (Western) and certain Western employees.¹ Plaintiffs asserted causes of action sounding in negligence and loss of consortium. The trial court granted defendants’ motion for summary judgment, concluding that plaintiffs could not establish duty, breach, or causation to support the negligence cause of action, and that, because the negligence claim failed, so too did the loss of consortium claim.

On appeal, plaintiffs assert the trial court erred in granting defendants’ motion for summary judgment. Plaintiffs assert triable issues of fact remained as to duty, breach, and causation, and that both causes of action are viable.

We reverse.

In the published part of this opinion, we conclude that the evidence before the trial court supports the existence of a duty of care. In the unpublished part, we conclude that defendants failed to eliminate all triable issues of fact as to breach and causation. We further conclude that, because the negligence cause of action remains viable, so too does the loss of consortium cause of action.²

FACTUAL AND PROCEDURAL BACKGROUND

Undisputed Facts

On August 23, 2013, Western was performing road work on Latrobe Road north of where it intersected with Ryan Ranch Road. Latrobe Road runs north and south. Western had a "reversing lane closure" traffic control in place in the area of the construction site. In this type of traffic control, traffic traveling in one direction would be stopped while traffic traveling in the other direction passed through the single lane in use. The flagger at the south end of the reversing lane closure controlling northbound traffic was located just north of the intersection at Ryan Ranch Road.

At some undefined point north of Ryan Ranch Road, Latrobe Road curves to the west. Plaintiff was north of the intersection, driving south on Latrobe Road. Smithson was behind plaintiff, also driving southbound on Latrobe Road.

As plaintiff entered the construction zone, southbound traffic moved into the single lane. Northbound traffic was stopped so that southbound traffic could proceed. Plaintiff recalled seeing traffic controls for both northbound and southbound traffic, but he could not recall the type of traffic controls. Plaintiff drove through the construction zone without issue.

At some point, plaintiff came to a stop behind a car. That car, in turn, was stopped behind another vehicle that was waiting to turn left onto Ryan Ranch Road. Plaintiff believed "that the car in front of the car in front of him was waiting for an opportunity to either get through a couple of stopped cars or for traffic to clear."

Plaintiff was stopped for approximately five seconds before the collision. He saw Smithson's vehicle behind him, perhaps less than one second prior to impact. Smithson, who testified he was traveling at approximately 35 miles per hour, hit plaintiff's vehicle from behind, and plaintiff's vehicle was pushed into the vehicle in front of his.

Traffic was light as Smithson had proceeded through the construction zone. Smithson testified that at some time before the collision, he "must have looked off to the side," because he did not see plaintiff's vehicle before hitting it. When Smithson saw plaintiff's car, he slammed on the brakes, and then collided into plaintiff's car. Smithson recalled telling an investigating officer that he never saw plaintiff's vehicle or traffic stopped before the collision.

Smithson believed that the primary reason the accident happened was that he was not paying attention and he knew of no other cause of the accident. However, he also testified that he did not know if there were cars stopped in and blocking the intersection at Ryan Ranch Road.

Defendant Don J. Carroll, president of Western, stated that, on a roadway project the safety of motorists is an "obligation of the highest concern." Defendant Tom Jacques was a Western employee whose duties included overseeing traffic control operations on Western job sites. According to Jacques, "[a]ny time you do a station -- flagger station like that, you want to consider the travel public [sic ] and to provide them with some safe room to stop in their vehicles away from an intersection ." (Italics added.) However, in deciding where to place the northbound flagger station on Latrobe Road, Jacques did not consider the fact that, if cars were stopped at the northbound flagger station and backed up into the intersection, southbound cars could not turn left onto Ryan Ranch Road. Indeed, Jacques admitted Western took no action to avoid "gridlocking" in the intersection of Latrobe Road and Ryan Ranch Road.

Defendants provided no testimony indicating the flagger at the south end of the reversing lane closure communicated with the flagger at the north end about blockages in the intersection impeding southbound traffic turning onto Ryan Ranch Road, or about stopped traffic in general, so that the north-end flagger could warn or stop southbound traffic.

Western's contract with El Dorado County required that Western take public safety into consideration when doing work on the Latrobe Road project.

The Complaint

Plaintiffs asserted causes of action sounding in negligence and loss of consortium. In the first cause of action, plaintiffs asserted defendants were negligent in, among other things, their lane closures, traffic controls, advance traffic slowing, and other work. Specifically, plaintiffs asserted that defendants negligently created a condition where traffic was "dangerously backed up in a manner that was a substantial cause of the collision ...." Plaintiffs further asserted that defendants "so negligently designed, planned, and implemented the placement of the traffic control stop for the lane of traffic in the direction traveling northbound on Latrobe Road, that traffic traveling southbound on Latrobe Road was unable to make a left turn onto Ryan Ranch Road due to backed up cars stopped in the northbound lanes." Plaintiffs asserted that defendants’ actions were a substantial cause of the collision and the injuries sustained by plaintiffs, and that it was foreseeable that people driving on Latrobe Road near this intersection would be injured.

In the second cause of action, to recover damages for loss of consortium, plaintiffs asserted that plaintiff's wife had been deprived of her husband's services.

Defendants’ Summary Judgment Motion

Defendants moved for summary judgment. They asserted that, immediately prior to the collision, plaintiff and Smithson had both driven through the construction zone without incident. According to defendants, Smithson acknowledged in his deposition testimony that he struck plaintiff's vehicle "due to inattentiveness, and not because of anything that distracted him as he was driving through the construction zone." Defendants further stated that Smithson acknowledged there "wasn't anything related to any construction work that he feels contributed to his running into the back of [plaintiff's] vehicle."

Defendants asserted that plaintiff was unable to prove that the "temporarily blocked intersection had anything to do with the accident, which occurred 10 feet north of the intersection" and at a time when plaintiff's vehicle was stopped behind two other vehicles. Defendants further asserted that plaintiff could not "establish that if the intersection had been clear, the car that was two cars in front of him would have been able to make its left turn without stopping at the ‘T’ intersection" or that Smithson's vehicle would not have collided with plaintiff's vehicle. Defendants maintained that such contentions would be conjectural.

Defendants argued that no duty of care extended from them to plaintiff and that defendants’ actions were not a substantial factor in the accident. Defendants maintained that they did not create any hazard that caused the collision. They further asserted that the ...