Lay Witness Opinion on Source of Gravel on Road Admissible


Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

Just six days later, plaintiff’s crash occurred. According to plaintiff, “his rear tire slid on a patch of loose gravel…causing him to lose control and crash.” Plaintiff filed suit, and defendants filed motions for summary judgment. In response, plaintiff “filed several lay witness affidavits, pictures of the accident scene, and portions of the road construction contract.” Although the trial court initially denied summary judgment due to issues of fact, it eventually granted the motions after defendants submitted photos showing that the white stripe on the road was “solid.” The trial court “excluded opinion testimony in [plaintiff’s] lay witness affidavits, ruling that such testimony should come from an expert.” This appeal followed.

The Court of Appeals began its analysis by looking at whether plaintiff’s lay witness opinions should have been admissible, ultimately ruling in the affirmative. Plaintiff filed an affidavit from another motorcyclist who had an accident in the same location on October 18th, who also stated that he hit “an unexpectedly large amount of loose gravel in his lane of travel.” Plaintiff also filed affidavits from his granddaughters, who went to the accident scene one week after plaintiff’s accident and took pictures of excess gravel there, and testified that “the gravel they saw [was] the same color and consistency as the new asphalt and opined that it ‘appeared to be from the paving job.’”

While defendants argued that “only a paving expert could accurately determine the source of the gravel,” the Court of Appeals disagreed. The Court found that “an ordinary person can comprehend the physical characteristics of gravel and the mechanics of the paving process,” and that jurors could determine how much weight to give the lay testimony. In Tennessee, lay opinion testimony is admissible if it is “(1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.” (citing Tenn. R. Evid. 701(a)). The Court of Appeals ruled that the testimony offered by plaintiff met both of these criteria, stating that “[t]he opinions have a rational basis—the gravel’s color and consistency. And the testimony is helpful in understanding what the witnesses observed and in determining the source of the gravel. The defendants’ objections go to the weight of testimony, not admissibility.” The lay testimony should have thus been considered.

Despite the admittance of the lay testimony, defendant construction company argued that summary judgment was appropriate because it owed no duty of care here, as its “responsibility ended once the State accepted the work.” “Under the State Construction Projects Liability Act, the State’s acceptance of a state contractor’s work relieves the state contractor from liability for negligence claims arising from that work as long as the work was performed in accordance with the applicable plans and specifications.” (internal citation omitted). Plaintiff asserted, though, that there were material fact issues regarding whether “the State accepted the work and whether the work complied with the applicable plans and specifications.”

Plaintiff first argued that emails showing that the state performed a subsequent inspection in November brought into question whether the work was accepted, but the Court rejected this argument. The Court found that the inspection on October 19th was by an authorized employee, and that there was no issue of fact regarding whether he accepted the work.

Regarding whether the work complied with applicable plans and specifications, however, the Court agreed that there were genuine issues of material fact. Plaintiff had photos from a week after the accident and testimony from a witness who stated that the same conditions existed on October 18th, the day before the final inspection. A TDOT inspector agreed that the amount of gravel shown in plaintiff’s photos would have been “improper,” and that if she had seen it she would have asked the construction company to properly remove it. The Court concluded:

Proof of an unacceptable amount of gravel on the road on October 18 created a genuine issue of material fact as to whether Hudson Construction complied with the Standard Specifications. The fact that [the TDOT inspector] did not see any gravel on October 19 does not prove that the gravel was gone. …There is no evidence in this record that the road was cleaned after October 16. …Viewing the evidence in the light most favorable to the nonmoving party, a reasonable juror could determine that the gravel was present on October 19, but the state inspector failed to see it.

(internal citation omitted). The Court further found that a “rational juror could find that the gravel remained on the road through the date of the accident,” and that plaintiff’s theory of the cause of the accident was one that could be accepted by a jury. The Court concluded that defendant “had a duty to remove all excess gravel and debris from the road before final acceptance,” and that [f]ailure to [do so] violated that duty and posed a foreseeable risk of injury to motorists.” Summary judgment on the negligence claims against defendant construction company were thus reversed, as were the claims for breach of contract against this defendant.

Turning to the claims against the State, the Court noted that plaintiff alleged two theories of liability—negligent inspection and maintenance of state highways or dangerous conditions on state highways under Tenn. Code Ann. § 9-8-307(a)(1)(I) and (J). For the negligent inspection claim, the Court found that for the same reasons there were factual disputes that precluded summary judgment against the construction company, summary judgment was also precluded here. While the TDOT inspector stated that he did not see loose gravel, plaintiff presented evidence from which a reasonable juror could find that gravel was nonetheless present.

On the dangerous conditions on state maintained highway claim, plaintiff needed to “demonstrate that the risk of injury was foreseeable and that ‘notice was given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.’” (internal citation omitted). The state argued that it had no notice of the alleged gravel, but plaintiff asserted that constructive notice should be deemed sufficient, and the Court of Appeals agreed. Holding that constructive notice was sufficient, the Court reiterated that plaintiff “produced evidence from which a reasonable fact finder could conclude that Hudson Construction caused or created the dangerous condition, [and that] the State may be charged with notice of a dangerous condition caused or created by its agent.” (internal citation omitted). Further, the Court also held that plaintiff’s proof that the gravel may have been on the road for eight days presented at least a question of fact as to whether constructive notice could also be established based on the length of time the dangerous condition allegedly existed, and that “[p]roof of an inadequate inspection [was] directly relevant to the question of constructive notice.”

Because the lay evidence should have been admitted, there were genuine issues of material fact as to all claims, and summary judgment was reversed.

This is a dense case addressing several issues, but it’s an important read for lawyers litigating cases about accidents potentially caused by road construction. The Court of Appeals was correct in reversing summary judgment, as plaintiff presented ample evidence to get past the summary judgment phase.

One final point.   I had similar car involving a car some thirty years ago.  A utility contractor left a large amount of gravel scattered across a blacktop road near a utility contstruction site.  My client’s son drove a car over the gravel, lost control of his car, hit a utility pole and died.   Gravel on roadways presents a hazard to operators of all light weight vehicles, not just motorcycles.

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