Winter 2018

Private Entity Has No Duty of Care for the Design/Construction of Public Roads

The decedent was riding his bicycle eastbound on Maryland Route 75 at its intersection with Shepherd’s Mill Road (“the intersection”) when he was struck and killed by a tractor-trailer making a right turn from Shepherd’s Mill Road using a merge/acceleration lane. The tractor was coming from a cement plant owned and operated by Lehigh Cement Company, LLC (Lehigh). The tractor and trailer were not owned by Lehigh, and the driver was not an employee or agent of Lehigh.

The family and estate of the decedent settled with the driver of the tractor. A wrongful death and survival action was then brought against Lehigh, alleging that it was substantially involved in the negligent design and construction of the intersection. Specifically, it was claimed that the intersection negligently funneled bicycle traffic into the acceleration lane and that the intersection’s design violated the Manual on Uniform Traffic Control Devices (“MUTD”) (which includes a section on traffic control devices for bicycles); and the Transportation Equity Act for the 21st Century (“TEA-21”) (providing for cycle lanes on new road construction).

Over many years, there had been proposals and plans to redesign the intersection. The main purpose of any redesign was to deal with and accommodate increasing truck traffic to the cement plant. Pursuant to the MUTD and TEA-21, the initial plans and designs included bicycle lanes. However, final plans and designs altered the bicycle lanes to be a shoulder, which then became the merge/acceleration lane at the intersection. This was the road configuration that was actually constructed.
Lehigh’s alleged involvement was that it: 1) participated in a meeting with government entities to discuss the expansion of the cement plant; 2) prepared a proposed transportation system to provide alternate access to the plant; 3) contributed $300,000.00 to the engineering costs of developing such a system; and 4) publicly characterized the transportation system as a “public/private partnership.”

The trial court granted Lehigh’s Motion to Dismiss, finding there was no duty owed by Lehigh with respect to the design and construction of public roads. The plaintiffs appealed, arguing governmental entities may delegate their duties to private entities “pursuant to a public private partnership;” that private entities may voluntarily assume duties of public entities by conduct or by contract; and that the trial court improperly made the factual finding that there was no partnership between Lehigh and the government.

The Court of Special Appeals affirmed the circuit court’s dismissal of the complaint. The power to design, construct and maintain state and county roads is exclusively within the power of state and county governments. The Court did acknowledge that the state and county may delegate the design and construction of public roads to private entities. However, the Court determined that the plaintiffs did not assert any facts to substantiate that the design and construction of the subject intersection was delegated to Lehigh – there was no allegation in the complaint of any contract with Lehigh. Lehigh’s one statement referencing a “public/private partnership” had no legal significance and the relationship between Lehigh and the design of the intersection was “quite limited in regard to voluntarily assuming any duty.” Finally, the Court held that there was no fact finding by the trial court in regard to the existence of a partnership. The decision was legal in nature that the complaint did not properly allege either a partnership agreement or any actions of the parties holding out a partnership existed.

This case piqued the interest of Franklin & Prokopik as it was tangentially involved. F&P had mobilized its emergency response capability on the happening of the occurrence and on behalf of the tractor driver. F & P attorneys were aware, based on the terms of the settlement release from that matter, that there was the possibility of further litigation directed at the road configuration.