Defense Digest 3/09: Statutory Immunity On Florida Highway Projects
By R. Tom Roberts, Esq. and Jennifer Bowmar, Esq.*
Florida - Construction Litigation
Even before taking office, incoming President Barack Obama and his administration established as a first order of business proposing a massive economic stimulus plan to combat the current economic downturn. An element at the core this proposed plan is funding hundreds of billions of dollars worth of infrastructure projects - to repair and rebuild the nation's aging highways and bridges. For our clients who contract with the Florida Department of Transportation (FDOT) to design and prepare roadway engineering plans or to construct roads and bridges, implementation of this stimulus plan could result in a much-appreciated boon to their business. But a significant influx of roadway work could, unfortunately, bring with it an increase in litigation against roadway designers, consultants, and contractors. Now is an ideal time to review the statutory protections from liability available to designers and contractors who do work for FDOT as found in Florida Statute § 337.195, as well as the exceptions that can disrupt these protections.
Section 337.195, entitled "Limits on Liability," was passed by the State Legislature and signed into law in 2005. This statute limits liability for roadway designers, consultants, and contractors by creating legal presumptions in their favor in civil lawsuits. In order to prevail, a claimant faces the daunting task of overcoming the strong presumptions that the designer, consultant, or contractor is immune from liability. A more thorough explanation of each subsection of § 337.195 follows.
The first subpart of this section applies to lawsuits brought against consultants or contractors who performed work on FDOT projects to recover for death, personal injury, or property damage arising from vehicle crashes in construction work zones. When one of the drivers involved is under the influence of illegal drugs or alcohol, the law presumes that the impaired driver's operation of his or her vehicle is the sole and proximate cause of his or her own death, injury, or damage. Put more succinctly, an impaired driver cannot recover from FDOT consultants or contractors for damages in a construction zone vehicle accident. The presumption can be overcome but requires proving that the consultant or contractor committed gross negligence or intentional misconduct to cause the death, injuries, or damages. (While the statute does not define "gross negligence," the phrase is defined in the Florida Standard Jury Instructions as conduct "so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.")
Next, § 337.195 creates a presumption in favor of FDOT contractors performing roadway construction, maintenance, or repair. These contractors will not be liable for death, personal injury, or property damage so long as the contractor's work was in compliance with the contract documents. In other words, if the contractor builds in accordance with the roadway plans and specifications, he is immune from liability for damages based on alleged negligent construction. This immunity does not apply, however, when the injury is caused by a hidden (latent) defect, condition, error, or omission caused by the contractor that is not part of the design. The immunity also does not apply when the contractor fails to maintain the traffic safety plan as required by the contract documents. Finally, this immunity does not relieve or diminish a contractor's duty to notify FDOT of apparent errors or omissions in the contract documents, and it does not affect FDOT's ability to make claims against a contractor.
Section 337.195 additionally creates a presumption in favor of roadway designers who prepare FDOT roadway engineering plans. So long as the designs comply with the applicable FDOT design standards when preparing the engineering plans, the statute presumes that the design professional used the degree of care and skill ordinarily exercised by other roadway design engineers under similar circumstances and in a similar area, with due regard for acceptable engineering standards and principles. This presumption establishes in the designer's favor, as a matter of law, the bedrock issue in any lawsuit for professional negligence of whether the designer met the "standard of care" for the profession. Only a showing of intentional or grossly negligent conduct by the designer will overcome this presumption that the standard of care was met. Of note, this presumption does not apply to conditions created by the engineer that are hidden and undiscoverable.
Finally, § 337.195 directs that a consultant, engineer, or contractor found to be immune from liability by this statute cannot be named on a verdict form or have any percentage of fault allocated to him. In most lawsuits, Florida law allows a jury to allocate fault amongst anyone who is liable for the damage, including responsible entities not a party to the lawsuit. Section 337.195 prevents the jury from allocating any fault to FDOT consultants, designers, and contractors who fall within the protections of this legislation.
Florida Statute § 337.195 creates strong presumptions for immunity from liability for designers, consultants, and contractors who contract with FDOT. Familiarity with the conditions giving rise to the presumptions, as well as the conduct that can defeat the presumptions of § 337.195, should be a part of the risk management arsenal for every designer, consultant, or contractor who undertakes roadway work with the State of Florida Department of Transportation.
* Tom is a shareholder in our Jacksonville, Florida, office and can be reached at rtroberts@mdwcg.com or (904) 358-4215. Jennifer is an associate in our Jacksonville, Florida, office and can be reached at jsbowmar@mdwcg.com or (904) 358-4225.
