Daniel L. Clayton
Kinnard Clayton & Beveridge
127 Woodmont Blvd
Nashville, TN 37205
www.KinnardClaytonandBeveridge.com
DClayton@KCBattys.com
A bill passed by the Tennessee General Assembly dramatically changes the ability to hold highway designers and builders accountable for wrongdoing. This bill represents a huge shift in tort law and provides highway designers and builders with unprecedented protection and presumptions in cases brought against these entities. The bill took effect on July 1, 2011 and applies to "all contracts to which this act applies entered into, or injuries to which this act applies occurring, on or after the effective date of this act."
Let's take a close look at several of the sections.
(a) (2) In a civil action for the death of or injury to a person, or for damage to property, against the department of transportation or its agents, consultants, or contractors for work performed on a highway, road, street, bridge, or other transportation facility when the death, injury, or damages resulted from a motor vehicle crash within a construction zone in which the driver of one (1) of the vehicles was under the influence as defined in subdivision (a) (1), or one of the drivers was convicted of reckless driving in violation of 55-10-205, and the driver's reckless driving or driving under the influence was a cause in fact and proximate cause of the accident, then it is presumed that the department of transportation, its agents, consultants, or contractors, are not the cause in fact and proximate cause of the accident and any death, injury, or damage resulting from the accident. This presumption can only be overcome if the malicious, intentional, fraudulent or reckless misconduct of the department of transportation, or of its agents, consultants, or contractors, was a proximate cause of such person's death, injury, or damage.
(Emphasis supplied)
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"in which the driver of one (1) of the vehicles: In a multi-car accident, that is caused by a combination of improper and negligent road construction markings and a drunk driver, the innocent, non-intoxicated driver must over the presumption that the D.O.T. and/or its agents/etc... are not responsible.
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"a cause in fact and proximate cause"
T.P.I. 3.21 Cause in Fact. "The defendant's negligent conduct is a cause in fact of the plaintiff's injury if, as a factual matter, it directly contributed to the plaintiff's injury and without it plaintiff's injury would not have occurred. It is not necessary that a defendant's act be the sole cause of plaintiff's injury, only that it be a cause."The proximate cause of an injury is not necessarily that which is next or last in time or place. Tri-State Transit Co. v. Duffey, 173 S.W.2d 706, 712 (Tenn.App. 1940).
There can be more than one proximate cause of an injury. Stokes v. Leung, 651 S.W. 2d 704, 708 (Tenn.App. 1982).
Traditionally, a defendant may be liable if it is established that the defendant's act or failure to act is a proximate cause. Payne v. Woodward, 227 S.W.2d 47, 50 (Tenn. 1949).
The Tennessee Supreme Court has long recognized that a person injured by the concurrent negligent acts of two parties can recover from either or both parties. Schoenly v. Nashville Speedways, Inc., 344 S.W.2d 349, 351 (Tenn. 1961).
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"any" death or injury, etc... : A family in a car being properly driven, but is killed by the combined negligent acts of a drunk driver and D.O.T, must overcome the presumption.
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"presumed" and "presumption can only be overcome" : D.O.T. gets the presumption that its conduct was not a cause in fact or proximate cause of the injury or death - and the only way to overcome the presumption is if the actions are if the malicious, intentional, fraudulent or the result of reckless misconduct. In other words, a showing of negligence, alone, is not enough to overcome the presumption that the actions were a cause in fact or proximate cause of the death/injuries.
Example:
The Smiths (a family of 4) are headed to Destin for their summer family vacation. Construction work was taking place on one of the roadways in middle Tennessee. An employee of the company in charge of the repair work on the roadway negligently forgot to do his job and as result, when the crew finished work at 2 a.m. the shoulder and bridge embankment was not properly barricaded. John Crews was driving down the road in behind the Smiths. Crews had been drinking several beers that evening. Blood tests ultimately registered a .08. Crews came up behind the Smiths minivan, hitting it in the rear. The minivan veered off to the right, and since there the area was not properly barricaded, the van went over the edge of the road, crashing into the creek bed 30 feet below, killing all 4 of the occupants. Crews had an insurance policy 25,000/50,000.
Notes:
(b) (1) A contractor who constructs, maintains, or repairs a highway, road, street, bridge, or other transportation facility for the department of transportation 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 that was the proximate cause of the personal injury, property damage, or death.
(2) The limitation on liability contained in this subsection (b) does not apply when a proximate cause of the personal injury, property damage, or death is a latent condition, defect, error, or omission that was created by the contractor and not a defect, error, or omission in the contract documents; or when the proximate cause of the personal injury, property damage, or death was the contractor's failure to perform, update, or comply with the maintenance of traffic safety plan as required by the contract documents.
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As long as the contractor complies with the document, and doesn't create an issue by not following the document, the contractor appears to have no responsibility at all in determining, after construction has begun for example, whether there is a need to change the contract documents in order to safely repair or construct the road.
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Of course, T.D.O.T. is allowed to sue the contractor. But, a quadriplegic would not be allowed to present a claim against the contractor for failing to recognize that the contract documents are insufficient. Note the language in (b)(4). "Nothing in this subsection (b) shall be interpreted or construed to alter or affect any claim of the department of transportation against such contractor."
(c) (1) In all cases involving personal injury, property damage, or death, a person or entity who contracts to prepare or provide engineering plans for the construction or repair of a highway, road, street, bridge, or other transportation facility for the department of transportation shall be presumed to have prepared such engineering plans using the degree of care and skill ordinarily exercised by other engineers in the field under similar conditions and in similar localities and with due regard for acceptable engineering standards and principles if the engineering plans conformed to the department of transportation's design standards material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.
(2) This presumption can be overcome only upon a showing of the person's or entity's gross negligence in the preparation of the engineering plans and shall not be interpreted or construed to alter or affect any claim of the department of transportation against such person or entity.
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If engineer draws up plan conforming to T.D.O.T.'s design standards, then engineer gets presumption
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If T.D.O.T.'s design standards are inappropriate for the project being performed, the engineer still gets the presumption
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Presumption can be overcome only upon a showing of gross negligence
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But - if engineer draws up plan conforming to T.D.O.T's design standards, and the plan of the engineer is defective - there is no presumption favoring the engineer, and T.D.O.T can sue the engineer/company. While section (2) covers this fact. Furthermore, the bill writers want to make sure that it was crystal clear the T.D.O.T's rights were not being curtailed. As section (6) states: "Nothing in this subsection (c) shall be interpreted or construed to alter or affect any claim the department of transportation has against such engineer."
Example: Engineering firm develops plans that conform to T.D.O.T.'s design standards. But, the plan is defective. Person driving on the road is killed in a wreck that is the result of the defective design for that portion of the road. Engineering firm is held to presumption that it did not do anything wrong. Only way to overcome that presumption is if the firm committed gross negligence in preparing the engineering plans. However, T.D.O.T. wants the engineering firm to pay for the costs of repairing the road to correct he defective engineering plan. All T.D.O.T. has to do is prove negligence on the part of the engineering firm. The engineering firm would enjoy no such presumption. T.D.O.T. would not have to prove gross negligence.
As can be seen, while the rights of the people who are injured by the negligence of road builders and designers have been severely restricted due to the higher burden of proof (i.e. malicious, intentional, fraudulent, reckless misconduct, gross negligence), the Department of Transportation's rights to hold its agents/contractors accountable have not been altered.
(d) In any civil action for death, injury, or damages against the department of transportation or its agents, consultants, engineers, or contractors for work performed on a highway, road, street, bridge, or other transportation facility, if the department, its agents, consultants, engineers, or contractors are immune from liability pursuant to this section or are not parties to the litigation, they may not be named on the jury verdict form or be found to be at fault or responsible for the injury, death, or damage that gave rise to the damages.
It is hard to justify why these types of immunities are being given to wrongdoers. It simply goes against the notion of personal responsibility and accountability that is the bedrock of our great State and country. If a company is careless, and that carelessness causes harms and losses to a person or family, then that company should be held accountable for all the harms and losses as that are caused from its callous and careless conduct.
