Where a highway construction contractor followed specifications given to it by the state, it was immune pursuant from liability arising out of a motorist’s personal injury action. The plaintiff’s law suit alleged that her injuries were caused by, or made worse by, a guardrail that was constructed by the contractor. Under the state of Kansas highway contractor immunity statute, a contractor is provided immunity from third party suits if certain conditions are met. These conditions are that (1) the injury occurred after the construction was complete; (2) the work of the contractor was accepted by the official responsible for the project; and (3) the contract provisions and specifications were satisfied by the contractor.

Plaintiff alleged that the contractor negligently performed its obligations under the contract by failing to install guardrails in accordance with the specifications, and that the contractor failed to warn KDAT that the guardrail it installed was negligently designed. Specifications for guardrails were provided by a KDOT document entitled “Protective Steel Plate Guard Fence at Bridge Piers.” The guardrails depicted in the specification for single column and two-column piers was an “open-end” design, meaning that the ends of the guardrails on either side of the columns do not connect with one another. “Closed-end” guardrails were specified for certain other conditions as defined by the same document. The contractor installed the open-end design whereas the plaintiff asserts that a closed-end design was required by the specifications because the overpass contained a multiple-column pier. It is this discrepancy that forms the basis of the plaintiff’s negligence claim and she asserts that it had been built closed-end, her car may not have flipped into the air when she hit the guardrail and she would not have sustained such serious injuries.

The contractor asserted that it fully complied with the specifications. The state supported the contractor’s position by way of an affidavit filed by the assistant secretary of transportation. The contractor filed a motion for summary judgment to dismiss the complaint on the grounds that it was immune from suit pursuant to the statute. In the plaintiff’s opposition to the motion, she included a counter-affidavit from an expert who opined that the closed-end design would have been required by the state at the accident site and that despite the state’s acceptance of the contractor’s work, the open-ended guardrails did not conform to the contract specifications. This affidavit was found by the district (trial) court to be too speculative and conclusory to establish a disputed issue of material fact. Accordingly, the court granted the contractor’s motion for summary judgment.

On the appeal from that decision, the appellate court sustained the lower court decision in favor of the contractor and explained that the state immunity statute protected the contractor because the three-part test described above was met by the contractor. Specifically, the plaintiff’s injuries occurred after the work had been completed; the state had accepted the contractor’s work; and finally, no evidence was presented to establish a material factual dispute with respect to the contractor’s compliance with the specifications. The court held that the purpose of the state statute was to protect contractors from liability when an accident occurs from completed highway project that the contractor had no role in designing. As seen by the court, “Such protection is logical, practical, and necessary.” Rodarte v. Kansas Dept. of Transportation, 39 P.3d 675 (Kansas, 2002).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 5, No. 1 (Jan/Feb 2003).

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