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Divided Delaware Supreme Court Holds Highway Contractor Owes a Common Law Duty to Provide for the Safety of the Traveling Public, Above and Beyond Its Approved Traffic Control Plan

Pavik v. George & Lynch, Inc., No. 160, 2017, 2018 Del. LEXIS 133 (Mar. 23, 2018)

Author: John J. Gazzola

5/31/2018

Read the full post at Constructlaw

Divided Delaware Supreme Court Holds Highway Contractor Owes a Common Law Duty to Provide for the Safety of the Traveling Public, Above and Beyond Its Approved Traffic Control Plan

This case arises out of a highway reconstruction project and a car accident which occurred on the highway during non-working hours. The Delaware Department of Transportation (DelDOT) hired George & Lynch, Inc. (G&L) to repave Omar Road. The contract obligated G&L to perform its work in a manner that would provide reasonably safe passage to the traveling public and to provide for the protection and safety of the general public. DelDOT approved G&L’s traffic control plan, which provided for placement of temporary warning signs during working hours and permanent warning signs advising travelers of road work ahead. As part of its work, G&L performed cold in-place recycling, a process by which asphalt is removed, recycled, and reapplied as a base layer. As the recycled asphalt cures, the road surface can support traffic, but there is a risk that raveling—a condition in which the base layer breaks apart—can occur.

It was during a curing period that the accident occurred. On Friday, after asphalt had been installed and began to cure, the road was reopened. On Saturday, after a thunderstorm, DelDOT received complaints of potholes on the road. On Sunday, DelDOT patched the potholes and later that night, the driver lost control of her car and ran off the road. Plaintiffs claimed the accident was caused by raveling and that G&L was negligent because it failed to provide warning signs about the road’s condition during the non-working hours. G&L argued that it had no duty to erect additional signs and that DelDOT’s repairs broke the chain of causation.

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