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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
July 19, 1997
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Minnesota Contractor and Subcontractor Had No Duty for Detour Route Outside Construction Zone

Two passengers died and a third suffered serious injury when the driver of the vehicle in which they rode drove the wrong way in a construction zone detour and hit another vehicle. Representatives of the deceased passengers sued the driver, the Minnesota Department of Transportation (MN/DOT), and Shafer Contracting Company (Shafer), the contractor responsible for the road construction project. Warning Lites of Minnesota, Inc. (Warning Lites), a subcontractor to Shafer, eventually became an additional direct defendant. The plaintiffs claimed negligence on the parts of both contractors based on their failure to meet contractual and common law duties. An additional claim against Warning Lites alleged the contractor assumed a duty by voluntarily inspecting the traffic control devices on the detour.

The Dakota County District Court granted summary judgment favoring Shafer and Warning Lites on the first claims of negligence. However, the court denied summary judgment for Warning Lites on the claim of voluntary assumption of duty. The Court of Appeals of Minnesota subsequently affirmed summary judgments for the contractors on negligence claims and reversed the decision against Warning Lites, finding motorists had not relied on the subcontractor's voluntary inspection to provide their safety on the detour. This summary describes the contractors' appeal.


On September 19, 1991, about 6:40 a.m., John Harris was taking a detour that bypassed construction on Trunk Highway 55 in Dakota County, Minnesota. Thomas W. Williams, Jimmy Don Williams, and Robert Joe Gillaspy were passengers in his vehicle. More than two miles from the construction site, Harris came to the intersection of County Roads 47 and 48. Although Harris had driven through this intersection previously, this time he failed to stop at the stop sign confronting him on County Road 48. Harris then drove the wrong way down County Road 47. Harris' vehicle collided head-on with a vehicle driven by Bruce G. Lapean.

The collision resulted in the deaths of Thomas W. Williams and Robert Joe Gillaspy. Jimmy Don Williams received serious injury.


The trial court found that MN/DOT had established the detour on County Routes 47 and 48 and had taken over jurisdiction for those highways during the construction project on Highway 55. As part of the construction plan, MN/DOT specified the exact location of all traffic control devices on the detour route. The State contracted with Shafer for "furnishing, installing, maintaining, and removing" traffic control devices in the construction zone and on the detour; Shafer subcontracted with Warning Lites to perform these duties.

While it was undisputed that the traffic load on County Road 48 increased due to the detour, the intersection at which this collision happened had remained unchanged. It retained the same design and traffic control it had before it became part of the detour. Harris had three indications that he was at an intersection when he came to County Road 47: (1) a stop sign, (2) the words "stop ahead" on the road surface, and (3) a double yellow center stripe.

The plaintiffs claimed this intersection design was "unreasonably dangerous" and argued that Shafer and Warning Lites were negligent in their responsibility for the design of the intersection and supervision of its safe operation. In addition, the plaintiffs pointed out that Bruce Zeien of Warning Lites had made a voluntary tour of the detour route, inspecting all traffic control devices and checking the "overall effectiveness of the detour route and motorists' actions." Through this voluntary inspection, according to the plaintiffs, Warning Lites assumed a duty for the safety of the detour route.

The trial court found no contractual or common law duty that imposed responsibility for the detour route on either the contractor or the subcontractor. Therefore, the court granted both summary judgment in regard to the claims based on negligent design and supervision. However, the trial court declined to grant Warning Lites summary judgment on the claim that it was negligent in a duty of safety assumed by voluntarily inspecting the detour route.

The plaintiffs appealed the granting of summary judgment, and Warning Lites appealed the district court's failure to grant summary judgment on the voluntary inspection issue.


The issues facing the appeal court were:

  1. Did Shafer and Warning Lites have a contractual duty or common law duty to provide for the safety of an intersection on a detour route outside the construction zone?
  2. Did the district court err in denying summary judgment on the voluntary assumption-of-duty claim?

The defendants argued that their contract was unambiguous and did not impose duty on them for the safety of the detour nor provide a basis for a claim of common law duty. That contract did have a standard specification for the contractor to "provide for the safety of the general public." However, in a provision distinguishing the detour route from the construction zone, the contract gave MN/DOT responsibility to "maintain those detour roads which are established by the Commissioner." The contract also gave the Commissioner of Transportation "exclusive authority for the placement and maintenance of traffic control devices on trunk highways," in accordance with Minn.Stat.  169.06, subd. 2 (1992). When assuming jurisdiction of these county roads during their use as a detour, MN/DOT kept full contractual authority for designing the detour route and for locating traffic control devices along the detour. These contract provisions, according to the appellate court, were not ambiguous and clearly assigned no contractual duty to Shafer or Warning Lites for safe design or inspection of the detour route.

On the question of the contractors' common law duty, the court cited Dornack v. Barton Constr. (272 Minn. 307, 317, 137 N.W.2d 536, 544 (1965)) in recognizing that "a contractor's duty of care may be broader than that set forth in the contract." The court also referred to several cases establishing that "Minnesota case law imposes a mutual duty on contractors and the state to provide for the safety of motorists within a construction zone." However, this court declined to extend this broad duty beyond the construction zone to the detour route. Pointing out that Shafer and Warning Lites made no changes in the design of the detour route and performed no work on that route, this court upheld the trial court's summary judgment for both contractors on the contractual issues and on the issue of common-law duty.

Although the plaintiffs argued that denial of summary judgment for Warning Lites on the issue of assuming duty through voluntary inspection was beyond the reach of this court's review, the appeals court rejected the argument and considered the issue. Here the court felt the decision revolved around Abresch v. Northwestern Bell Tel. Co. (246 Minn. 408, 416, 75 N.W.2d 206, 211-12 (1956)) where the court concluded:

Liability for voluntarily assuming a duty arises only if this conduct "leads others to rely on such assumption of duty and to refrain from taking other and more direct action to protect themselves * * *."

Warning Lites' employee Bruce Zeien testified that during an inspection he evaluated the effectiveness of all traffic control devices. He also said that had he noticed motorists having problems with the detour route, he would have alerted his supervisors. While it was undisputed that Zeien made this inspection of the detour route, the appeals court found no evidence that motorists were relying on Zeien's "silent inspection" for their safety. The safety of the detour route was the responsibility of MN/DOT, and a MN/DOT official testified that, while information from contractors or other sources is always welcome, they do not rely on such outside sources for that information. Given that the plaintiffs did not prove MN/DOT or motorists using the detour had relied on Warning Lites to provide for the safety of the detour, the appeal court reversed the trial court's decision not to grant the contractor summary judgment on the issue of assumption of duty.

Affirming the granting of summary judgment to Shafer and to Warning Lites on issues of contractual and common law duty and reversing the decision not to grant summary judgment to Warning Lites on the issue of voluntary assumption of duty, the appeals court granted summary judgment on all issues to both contractors.

[For further reference, see Williams v. Harris (Minn.App. 1994) in West Publishing Vol. 518 North Western Reporter, 2d Series, 864.]

Copyright © 1997 by TranSafety, Inc.

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