Construction Law Insights

Powell v. Boxley Materials Co., 2021 U.S. Dist. LEXIS 228822, 2021 WL 5627035 (W.D. Va. Nov. 30, 2021)
Powell v. Boxley Materials Co., 2021 U.S. Dist. LEXIS 231886 (W.D. Va. Dec. 3, 2021)
Powell v. Boxley Materials Co., 2021 U.S. Dist. LEXIS 232992, 2021 WL 5772307 (W.D. Va. Dec. 6, 2021)

In February 2017, the Virginia Department of Transportation (“VDOT”) awarded Boxley Materials Company (“Boxley”) a contract to mill and pave Route 11 (the “Contract”). The contract required that all work be in accordance with the Virginia Work Area Protection Manual (“VWAPM”) and the Virginia Supplement to the Virginia Manual for Uniform Traffic Control Devices (“MUTCD”), that Boxley place “end of day” signage to warn drivers of ongoing construction, and that Boxley provide “Bump,” “Uneven Lanes,” and “Road Work Ahead” warning signs. Between milling and paving, there would be a 2-inch drop. On September 20, 2017, Richard Powell (“Powell”) rode his motorcycle on a milled section of Route 11 when the front wheel hit a ridge and flew Powell over the handlebars, injuring Powell. Video of the accident scene by the Volunteer Fire Department showed visible warning signs. Powell sued Boxley and its subcontractors for negligence. Boxley moved for summary judgment.

The Court denied Boxley’s motion for summary judgment because there were genuine disputes of material fact. Contributory negligence is an affirmative defense that the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances and is ordinarily determined by the fact finder. There was a dispute on how the accident occurred because Boxley argued Powell switched from the left to the right lane despite a “Stay in Lane” sign, while Powell claimed he never switched lanes.

The December 6, 2021 opinion dealt with pre-trial motions, including motions to exclude certain experts. The plaintiff’s medical expert was excluded as a sanction for failure to comply with the Court’s Rule 16 scheduling order, specifically the scope and timing of disclosures required under Rule 26. The defendant’s medical expert was also excluded for failing to comply with the Rule 26 disclosure scope and timing. The Court in several instances emphasized the deficiency in disclosures for failing to provide the experts’ list of cases in which they have previously provided expert testimony. Finally, the Court undertook a Daubert analysis to assess the relevance and reliability of the engineering expert’s testimony. The engineering expert’s opinions as to contract interpretation and credibility of factual testimony were excluded under the Daubert analysis.

PLDR Law Scott Kowalski 1 PLDR Law Mark Burgin 1

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