Porter v. Knife River, Inc.
970 N.W.2d 104
Neb.2022Background
- Officer Curtis W. Blackbird died when his cruiser struck a parked 50-ton crawler crane on a westbound portion of Nebraska Highway 94 that had been closed for construction.
- NDOT designated the section a "hard closure;" contractors (general contractor and subcontractors, including the crane owner and traffic-control subcontractor) implemented an NDOT-approved traffic control plan that complied with the MUTCD.
- At the time of the crash, nine barricades and five signs marking the closure were in place at the road termini; evidence showed motorists had previously driven around the barricades when crews were not present.
- Blackbird entered the closed roadway by maneuvering around barricades; another officer ahead of him navigated around the same crane without incident.
- Plaintiff (Administrator of Blackbird’s estate) sued contractors for negligent maintenance/traffic control (insufficient illumination, barricades, or intermediate warnings); the district court granted summary judgment for the contractors.
- The Nebraska Supreme Court affirmed, concluding the contractors met their statutory and common-law duties and there was no triable issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contractors breached a duty to provide adequate warnings under Neb. Rev. Stat. § 39-1345 and common law | Contractors left the crane on the closed highway without adequate illumination, barricades, or other traffic controls, causing the fatal collision | Contractors complied with NDOT-approved traffic control plan and MUTCD; deployed "suitable" barricades and signs at both ends as § 39-1345 requires | The court held § 39-1345 and the evidence show contractors met the duty; barricades/signs were suitable and summary judgment was proper |
| Whether the statute or common law required additional intermediate signals/illumination inside the closed zone | Additional or more robust intermediate warnings and illumination were necessary to make the zone safe | A contractor is not required to place intermediate signals/flares where termini warnings and road conditions indicate a closure; MUTCD-compliant plan governs | The court held contractors were not required to add intermediate devices under the circumstances (citing precedent); no triable issue |
| Scope of duty under § 39-1345 and its effect on standard of care | § 39-1345 imposes broader duties beyond endpoint barricades and may impose greater care | § 39-1345 requires suitable barricades and signs at both ends and provides that entrants without NDOT permission do so at their own peril; compliance (plus ordinary care) sets the standard | The court interpreted § 39-1345 to limit the contractors’ duty to erect suitable barricades/signs at both ends and used the statute (and MUTCD) as the standard of care |
Key Cases Cited
- In re Estate of Lakin, 965 N.W.2d 365 (Neb. 2021) (summary judgment standard and appellate review)
- Wintroub v. Nationstar Mortgage, 927 N.W.2d 19 (Neb. 2019) (summary judgment principles)
- Lewison v. Renner, 905 N.W.2d 540 (Neb. 2018) (elements of negligence)
- Yagodinski v. Sutton, 959 N.W.2d 541 (Neb. 2021) (statutory construction principles; give effect to entire statute)
- Murray v. UNMC Physicians, 806 N.W.2d 118 (Neb. 2011) (statute/regulation may reflect legislative standard of care)
- Kirkwood v. State, 748 N.W.2d 83 (Neb. Ct. App. 2008) (contractor’s obligation to exercise ordinary care in device selection)
- Gorges v. Dobson Bros. Constr. Co., 187 N.W.2d 91 (Neb. 1971) (termini barricades need not absolutely prevent entrance)
- Lyon v. Paulsen Building & Supply, Inc., 160 N.W.2d 191 (Neb. 1968) (no duty to place intermediate signals where termini warnings and roadway conditions show construction)