Porter v. Knife River, Inc. , 310 Neb. 946 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/18/2022 01:08 AM CDT
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946Gwen Vargas Porter, Special Administrator
of the Estate of Curtis W. Blackbird and
next friend of Nathan Mitchell, a minor
child, appellant, v. Knife River, Inc.,
a Delaware corporation,
et al., appellees.
___ N.W.2d ___
Filed February 18, 2022. No. S-20-578.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the
lower court.
4. Summary Judgment. The primary purpose of the summary judgment
procedure is to pierce the allegations in the pleadings and show conclu-
sively that the controlling facts are other than as pled.
5. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
6. Summary Judgment. At the summary judgment stage, the trial court
determines whether the parties are disputing a material issue of fact. It
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946does not resolve the factual issues. Where reasonable minds could draw
different conclusions from the facts presented, there is a triable issue of
material fact.
7. Negligence: Proof. To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of
such duty, causation, and resulting damages.
8. Negligence. The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a particular
situation.
9. Statutes: Legislature: Intent: Appeal and Error. The fundamental
objective of statutory interpretation is to ascertain and carry out the
Legislature’s intent. When construing a statute, an appellate court looks
to the statute’s purpose and gives to the statute a reasonable construction
that best achieves that purpose, rather than a construction that would
defeat it.
10. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
11. Statutes: Appeal and Error. To give effect to all parts of a statute, an
appellate court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible, and will avoid rejecting as super-
fluous or meaningless any word, clause, or sentence.
12. Highways. Neb. Rev. Stat. § 39-1345 (Reissue 2016) describes
the authority and responsibilities of the Nebraska Department of
Transportation regarding temporary closures of state highways.
13. Statutes: Legislature: Negligence: Public Policy. A court may look
to a statute or regulation as reflecting the standard of care which the
Legislature has set as a matter of public policy.
14. Highways. Traffic control devices such as barricades placed at the ter-
mini of a closed road need not absolutely prevent entrance.
15. Highways: Contractors and Subcontractors: Negligence: Notice. A
highway contractor is not required in the exercise of reasonable care to
place signals or flares at intermediate places on a highway under con-
struction in order to give notice that machinery is being used thereon or
that defects due to construction exist, where warning signals and bar-
ricades at the termini thereof give notice that the highway is under con-
struction and the condition of the highway itself shows that it is under
various stages of completion.
Appeal from the District Court for Thurston County: John
E. Samson, Judge. Affirmed.
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946Nicholas R. Glasz, of Glasz Law Firm, for appellant.
Stephen G. Olson II, of Engles, Ketcham, Olson & Keith,
P.C., for Knife River, Inc.
Patrick R. Guinan, of Erickson | Sederstrom, P.C., for appel-
lee D.P. Sawyer, Inc.
Patrick L. Sealey, of Heidman Law Firm, P.L.L.C., for
appellee A.M. Cohron & Son, Inc.
Michael L. Storey and Mark E. Novotny, of Lamson, Dugan
& Murray, L.L.P., for appellee M.E. Collins Contracting
Company, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Officer Curtis W. Blackbird died on duty responding to
an emergency domestic violence call when his police cruiser
crashed into a parked crane on a portion of Highway 94
that was closed for construction. Blackbird’s widow, Ardetta
Blackbird, as special administrator of Blackbird’s estate and
as next friend of Blackbird’s son, Nathan Mitchell, filed this
negligence action in the district court for Thurston County
alleging negligent maintenance of a construction site against
the highway construction contractors and subcontractors (col-
lectively the contractors). The district court granted summary
judgment in favor of the contractors. Blackbird’s widow, as
special administrator, appealed. During the pendency of this
appeal, she passed away, and upon motion, Gwen Vargas
Porter was substituted as special administrator (Administrator).
The evidence was undisputed that the contractors met their
obligations, including those under Neb. Rev. Stat. § 39-1345(Reissue 2016) pertaining to the erection of suitable barricades
and signs to notify motorists that Highway 94 was closed
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946for construction. We conclude that there was no triable issue
of fact and that the contractors were entitled to summary judg-
ment. Accordingly, we affirm the order of the district court
which granted summary judgment in favor of the contractors.
STATEMENT OF FACTS
Blackbird was on duty with the Omaha Tribal Police when
his police cruiser tragically collided with a 50-ton “Crawler”
crane parked on a portion of Highway 94 which was closed for
construction. In the early hours of March 26, 2017, Blackbird
received an emergency domestic violence call. In order to
respond, Blackbird needed to travel from Macy, Nebraska, to
Walthill, Nebraska. A westbound portion of Highway 94 was
the fastest route from Macy to Walthill, but was designated by
the Nebraska Department of Transportation (NDOT) as closed
for construction. Despite the closure, Blackbird entered the
closed roadway by maneuvering around barricades and pro-
ceeded on Highway 94. In the dark night, Blackbird’s police
cruiser collided with the crane that was parked on the highway,
and Blackbird, who was not wearing a seatbelt, died as a result
of injuries sustained in the collision.
Another officer with the Omaha Tribal Police, Ben Carrillo,
had responded to the same call. He was driving ahead of
Blackbird on Highway 94 and successfully navigated around
the parked crane in the westbound lane. Carrillo had driven
through the same route from Macy to Walthill earlier in the
same shift. According to Carrillo, the highway had been closed
for “quite some time.” Carrillo testified that he and the other
officers with whom he worked regularly drove around road-
closed signs to respond to emergencies. After Carrillo passed
the crane, he looked in his rearview mirror and noticed that he
could no longer see the headlights of Blackbird’s police cruiser.
He turned his cruiser around and observed that Blackbird had
collided with the crane.
A Nebraska State Patrol certified accident reconstructionist
investigated the collision scene. In his report, he concluded
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946that it was a typical closure for state projects and that the signs
and barricades required were in place at the proper locations.
He stated the road closure barricades were “not something that
you would have missed. . . . You had to take — I had to take
some sort of evasive maneuver to get around them, meaning I
had to leave the roadway to get around them.” He contacted
the site supervisor, who stated that people had driven around
the barricades when the construction crew was not present.
The contractors, who are the appellees in this case, include
(1) Knife River, Inc., the general contractor for the Highway 94
construction project; (2) M.E. Collins Contracting Company,
Inc., a subcontractor hired by Knife River and responsible
for the paving project; (3) A.M. Cohron & Son, Inc., a sub-
subcontractor hired by Collins and responsible for bridge,
road, and culvert work (and the owner of the crane with which
Blackbird’s police cruiser collided); and (4) D.P. Sawyer, Inc.,
a subcontractor hired by Knife River and responsible for traffic
control and barricading.
The NDOT owned the construction project on Highway
94. A traffic control plan for the Highway 94 project was
developed and approved by the NDOT using the standard
and typical plan. It complied with the Manual on Uniform
Traffic Control Devices (2009) (MUTCD). The MUTCD is the
“national standard for all traffic control devices installed on
any street, highway, or bicycle trail open to public travel.” 23
C.F.R. § 655.603(a) (2021). Section 1A.07 of the MUTCD pro-
vides that “[t]he responsibility for the design, placement, oper-
ation, maintenance, and uniformity of traffic control devices
shall rest with the public agency or the official having juris­
diction . . . .”
The NDOT contracted with Knife River for the Highway 94
project. In February 2017, due to cracking in an earth slope
near a culvert that ran under the highway, a change order was
negotiated that expanded the original scope of work, and Knife
River subcontracted with M.E. Collins Contracting Company,
who subcontracted with A.M. Cohron & Son. A.M. Cohron
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946& Son took control of the Highway 94 project on March 20.
The area of the slope repair work was designated a “Work
Area” and was closed for the duration of the repair. A.M.
Cohron & Son deployed the crane, which it owned and con-
trolled, into the westbound lane of Highway 94 on March 21.
The crane could only be operated from the roadway due to the
conditions at the site. As marked in the traffic control plan, the
crane was parked in a section of the highway that was a “hard
closure,” meaning such section was closed to all traffic.
The undisputed evidence indicates that all traffic devices
required by the traffic control plan were in place and opera-
tional in the early hours of March 26, 2017, the day of the col-
lision. The Administrator’s expert offered an observation that
more robust barricades and signs were available. Blackbird
proceeded past nine barricades and five signs all indicating the
highway was closed. Carrillo told the accident reconstruction-
ist that when Carrillo entered the east side of the work area, he
slowed down to about 5 m.p.h. so he could leave the roadway
and drive around the barricades.
This action was brought against the contractors, claiming
that they were jointly and severally liable for negligence—­
leaving the crane on the highway without adequate illumi-
nation, barricades, or other traffic control—and that such
negligence was the proximate cause of Blackbird’s death.
Specific claims of negligence were made against each of the
contractors.
The district court sustained the contractors’ motions for
summary judgment. In its order, the court determined that the
contractors were entitled to summary judgment as a matter
of law based on several theories in the alternative, including
the failure of the Administrator’s prima facie case of neg-
ligence, and based on several affirmative defenses, includ-
ing contributory negligence and assumption of risk. The
court therefore granted the contractors’ motions for summary
judgment and dismissed the complaint with prejudice. The
Administrator appeals.
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946ASSIGNMENT OF ERROR
The Administrator assigns, summarized and restated, that the
district court erred when it granted summary judgment in favor
of the contractors.
STANDARDS OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of
law. In re Estate of Lakin, ante p. 271, 965 N.W.2d 365 (2021).
In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of
all reasonable inferences deducible from the evidence. Id.[3] Statutory interpretation presents a question of law which
an appellate court reviews independently of the lower court.
In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961
N.W.2d 807 (2021).
ANALYSIS
The Administrator claims that the district court erred when
it granted summary judgment in favor of the contractors. We
find no merit to the Administrator’s claim, and we there-
fore affirm.
[4-6] We note at the outset that summary judgment is proper
only when the pleadings, depositions, admissions, stipulations,
and affidavits in the record disclose that there is no genuine
issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law. Wintroub v.
Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). See
In re Estate of Lakin, supra. We have noted that the primary
purpose of the summary judgment procedure is to pierce the
allegations in the pleadings and show conclusively that the
controlling facts are other than as pled. Williamson v. Bellevue
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019). The party
moving for summary judgment must make a prima facie case
by producing enough evidence to show that the movant is
entitled to judgment if the evidence were uncontroverted at
trial. Id. If the party moving for summary judgment makes a
prima facie case, the burden shifts to the nonmovant to pro-
duce evidence showing the existence of a material issue of fact
that prevents judgment as a matter of law. Id. At the summary
judgment stage, the trial court determines whether the parties
are disputing a material issue of fact. It does not resolve the
factual issues. Id. Where reasonable minds could draw differ-
ent conclusions from the facts presented, there is a triable issue
of material fact. Id.[7,8] To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a
breach of such duty, causation, and resulting damages. Lewison
v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018). The question
whether a legal duty exists for actionable negligence is a ques-
tion of law dependent on the facts in a particular situation. A.W.
v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d
907 (2010).
[9-11] The meaning of § 39-1345, which concerns the clo-
sure of state highways by the NDOT, is central to our analysis
regarding the Administrator’s claim that the contractors work-
ing on the closed highway were negligent. The fundamental
objective of statutory interpretation is to ascertain and carry out
the Legislature’s intent. In re William R. Zutavern Revocable
Trust, supra. When construing a statute, an appellate court
looks to the statute’s purpose and gives to the statute a reason-
able construction that best achieves that purpose, rather than a
construction that would defeat it. Id. In construing a statute, a
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of
the statute considered in its plain, ordinary, and popular sense.
Yagodinski v. Sutton, 309 Neb. 179, 959 N.W.2d 541 (2021).
To give effect to all parts of a statute, an appellate court will
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946attempt to reconcile different provisions so they are consistent,
harmonious, and sensible, and will avoid rejecting as superflu-
ous or meaningless any word, clause, or sentence. Id.[12] With these general rules of statutory construction in
mind, we turn to § 39-1345, which describes the authority and
responsibilities of the NDOT regarding temporary closures of
state highways. Section 39-1345 provides:
The [NDOT] shall have the authority to close tempo-
rarily any part or all of a highway. Whenever the [NDOT]
closes such highway or part thereof, the [NDOT] or its
contractor shall erect, at both ends of the portion of the
highway so closed, suitable barricades, fences, or other
enclosures and shall post signs warning the public that
the highway is closed by authority of law. Such barri-
cades, fences, enclosures, and signs shall serve as notice
to the public that such highway is unsafe and that anyone
entering such closed highway, without the permission or
consent of the [NDOT], does so at his own peril. The
[NDOT], if it deems it advisable, may permit the pub-
lic use of a highway undergoing construction, repair, or
maintenance in lieu of a detour route and is authorized to
regulate, limit, or control traffic thereon.
(Emphasis supplied.)
This case presents an issue of first impression concern-
ing the meaning of the sentences italicized above. Under
§ 39-1345, when a highway is closed by the NDOT, the NDOT
or its contractor “shall erect, at both ends of the portion of the
highway so closed, suitable barricades, fences, or other enclo-
sures and shall post signs warning the public that the highway
is closed by authority of law.” This “shall serve as notice to
the public that such highway is unsafe and that anyone enter-
ing such closed highway, without the permission or consent of
the [NDOT], does so at his own peril.” § 39-1345. Because
Blackbird did not have permission to enter the highway, he was
among the class of entrants to which the barricade and notice
requirements of § 39-1345 apply.
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946[13] Section 39-1345 informs our analysis as to the exis-
tence of the contractors’ duty as well as the standard of care.
With respect to the latter, we have observed that we may look
to a statute or regulation as reflecting the standard of care
which the Legislature has set as a matter of public policy. See
Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118(2011). Read in context, § 39-1345 describes the scope of the
duty to warn the public of the existence and dangers of a closed
highway and is consistent with the evidence presented by the
parties regarding the standard of care.
Under § 39-1345, warning signs and “suitable” barricades,
fences, or other enclosures must be placed “at both ends of
the portion of the highway so closed.” A subsequent phrase,
“anyone entering . . . does so at his own peril,” is a limitation
on the scope of the duty of the NDOT and its contractors to
entrants of a closed highway who proceed without permission
or consent of the NDOT. By referencing these different por-
tions of § 39-1345, we are faithful to the principles of statutory
interpretation under which we give meaning to the full statute
and do not reject as superfluous or meaningless any word,
clause, or sentence. See Yagodinski v. Sutton, 309 Neb. 179,
959 N.W.2d 541 (2021).
With the understanding that the contractors were required
by statute to place “suitable” barricades or other traffic control
devices, we turn to our record. There is no dispute that the
entrance to the “hard closure” portion of the highway was bar-
ricaded with numerous traffic control devices and warnings.
And the contractors established through testimony and docu-
ments in evidence that the traffic control devices complied with
the traffic control plan and that the traffic control plan, in turn,
complied with § 1A.07 of the MUTCD. Compliance with the
MUTCD is not all that the contractors were required to show;
they were also required to exercise ordinary care in the selec-
tion of devices. See Kirkwood v. State, 16 Neb. App. 459, 748
N.W.2d 83 (2008). See, also, Tadros v. City of Omaha, 269
Neb. 528, 694 N.W.2d 180 (2005). In this case, the contractors’
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946witnesses referred to the traffic control plan and the MUTCD
as embodying what a reasonable person in the industry would
do in general, see Norman v. Ogallala Pub. Sch. Dist., 259
Neb. 184, 609 N.W.2d 338 (2000), and in particular, the con-
tractors’ witnesses stated that the devices selected in this matter
were appropriate. The Administrator and her expert agree the
contractors were required to implement the traffic control plan
in place at the time of the collision. See Lindsay Mfg. Co. v.
Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994).
Moreover, certain testimony showed that had the contractors
installed different or additional devices, their highway closure
would have impermissibly deviated from the traffic control
plan. And although the Administrator’s expert hypothesized
about the potential of using additional warning devices, he did
not identify any legally meaningful act or omission by the con-
tractors which would show that the devices actually selected
were not “suitable” or which would call into question the con-
tractors’ exercise of due care. The evidence presented by the
Administrator failed to create a genuine issue of material fact
on the issue of the suitability of the contractors’ traffic control
devices or the reasonableness of the traffic control plan under
the circumstances.
[14] With regard to the placement of “suitable” traffic con-
trol devices, § 39-1345 requires that such warnings be “at
both ends” of the highway closure. Carrillo, the officer who
travelled ahead of Blackbird just prior to the collision, testified
that to enter the portion of the closed highway, and circum-
vent the barricades, he reduced his speed, physically exiting
the road until he could reenter the closed highway. Traffic
control devices such as barricades placed at the termini of a
closed road need not absolutely prevent entrance. See Gorges v.
Dobson Bros. Constr. Co., 187 Neb. 19, 187 N.W.2d 91 (1971).
Thus, there is no reasonable dispute that in this respect the bar-
ricades and other traffic control devices were suitable and thus
met the requirements set forth by § 39-1345.
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PORTER v. KNIFE RIVER, INC.
Cite as 310 Neb. 946[15] Although the Administrator introduced testimony that
further measures could have been taken to mark and illuminate
individual hazards located within the closed construction zone,
we have explained:
A highway contractor is not required in the exercise
of reasonable care to place signals or flares at intermedi-
ate places on a highway under construction in order to
give notice that machinery is being used thereon or that
defects due to construction exist, where warning signals
and barricades at the termini thereof give notice that the
highway is under construction and the condition of the
highway itself shows that it is under various stages of
completion.
Lyon v. Paulsen Building & Supply, Inc., 183 Neb. 365, 368,
160 N.W.2d 191, 194 (1968). In fulfilling their duty, the con-
tractors exercised ordinary care, and the Administrator did not
introduce evidence to the contrary; there is no triable issue
of fact.
CONCLUSION
This appeal involves a fatal single-vehicle accident on a
closed highway. As explained above, by reference to the pro-
visions of § 39-1345, we have concluded that the contractors
owed a duty to Blackbird, that the statute and evidence inform
us regarding the standard of care, and that the contractors
offered evidence that showed they exercised ordinary care.
Even giving the Administrator the favorable inferences from
the evidence, there was no triable issue of fact. The district
court did not err when it entered an order of summary judg-
ment in favor of the contractors, and accordingly, we affirm.
Affirmed.