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Kane v. Cox & Sons

October 25, 2007

GINA KANE AND MARY DEATHERAGE, PLAINTIFFS,
v.
COX & SONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Court

MEMORANDUM AND ORDER

REAGAN, District Judge

A. Introduction

Mary Deatherage and Gina Kane filed a third amended complaint on October 17, 2006, naming eight Defendants: Cox & Sons Contracting Company, David Roth, the Roth Family Limited Partnership, the United States of America, Vantage Homes, Inc., Vantage Development Co., Vantage Homes of Illinois, LLC, and Woolpert, Inc. The suit arises from an October 2004 car accident in Fairview Heights, Illinois. Mary Deatherage was a passenger in a vehicle being driven by Gina Kane. Kane's vehicle was struck by a vehicle being driven by Emmerson Buie, an F.B.I. agent, who was acting within the scope of his employment for the United States of America at the time of the accident.

Cox & Sons Contracting Company was hired by Vantage as a subcontractor on Fountains Parkway, a residential development. Two of the contracts entered into by Cox & Sons required paving work and the construction of a berm at the development's intersection with Old Collinsville Road, the location of the accident. Plaintiffs allege that Cox & Sons was negligent in failing to place a stop sign at the intersection and in constructing a berm that obstructed the vision of oncoming traffic at the intersection.

On August 17, 2007, Cox & Sons moved for summary judgment on the two counts against it (Counts VII and XV). For the reasons stated below, the Court DENIES Cox & Sons's motion (Doc. 179).

B. Applicable Legal Standards

Under Federal Rule of Civil Procedure 56, summary judgment should be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Guzman v. Sheahan, -- F.3d --, 2007 WL 2241646, *3 (7th Cir. Aug. 7, 2007). Accord Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir. 2006), citingEzell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In assessing whether summary judgment is warranted, this Court must construe all evidence, plus the inferences reasonably drawn from the evidence, in the light most favorable to the non-moving party. King ex rel. King v. East St. Louis School District 189, -- F.3d --, 2007 WL 2241649, * 3 (7th Cir. August 7, 2007). Accord Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007).

C. Analysis

1. Whether a Duty to Install a Stop Sign Existed

Cox & Sons first argues that it had no contractual duty to install a stop sign at the intersection. Cox & Sons acknowledges that the paving contract required that a barricade be placed at the intersection but argues that the contract did not require temporary traffic controls after the completion of the paving contract. In his deposition, DeWayne Cox testified that barricades were used during the paving work at the intersection but that Rob Tiemann, Vantage's Project Manager, instructed Cox & Sons to remove them after the paving work was completed in January 2004 (Doc. 179, Ex. 1, pp. 53). Tiemann corroborated this testimony (Doc. 179, Ex. 2, p. 9). Cox & Sons also states that it was never asked by Vantage or the City of Fairview Heights to put up a stop sign. Cox & Sons further points to DeWayne Cox's statement that it is customary that the municipality place traffic signs rather than subcontractors (Doc. 179, Ex. 1, pp. 57-58). Moreover, Rob Tiemann's testimony states that there was an accident at the intersection a few weeks before Kane and Deatherage's, and that he instructed Eric Hussman, the superintendent at the site, to put up a stop sign and did not contact Cox & Sons to do so. (Doc. 179, Ex. 2, pp. 29-30). According to Cox & Sons, this indicates that Vantage did not believe Cox & Sons had any duty to erect stop signs in October 2004.

Though Cox & Sons provides evidence for its position, summary judgment is not proper in this instance. First, the contract includes a provision for barricades and traffic controls (Ex. A, p. 2). There is a dispute as to whether this contractual provision included temporary stop signs and other traffic controls, and for how long such controls would be provided.

Deatherage also argues that, irrespective of the contract, Cox & Sons's removal of the barricades created an obvious hazard, for which it should have provided an alternate traffic control. Deatherage points to DeWayne Cox's deposition, wherein he agreed that the ...


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