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


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    03/14/2022 08:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    PORTER v. KNIFE RIVER, INC.
    Cite as 
    310 Neb. 946
    Gwen 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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    310 Nebraska Reports
    PORTER v. KNIFE RIVER, INC.
    Cite as 
    310 Neb. 946
    does 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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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    PORTER v. KNIFE RIVER, INC.
    Cite as 
    310 Neb. 946
    Nicholas 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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    310 Nebraska Reports
    PORTER v. KNIFE RIVER, INC.
    Cite as 
    310 Neb. 946
    for 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. 946
    that 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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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    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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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    PORTER v. KNIFE RIVER, INC.
    Cite as 
    310 Neb. 946
    ASSIGNMENT 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.
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    310 Neb. 946
    Med. 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. 946
    attempt 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.
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    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.
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    witnesses 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.
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    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.