Work Zone Crash Claim: Contractors, the State and Drivers

The other driver first. Most work zone crashes are ordinary negligence: a driver who did not slow for the queue and struck the car ahead, a driver who changed lanes late at a merge, a driver who drove through a closed lane. Those claims run against the driver's insurer exactly as elsewhere, with the work zone as context. Many states double fines for violations in work zones, and a citation issued there is evidence.

The contractor second. A contractor that performs work on a public road does so under a contract that requires it to maintain traffic through the zone according to an approved traffic control plan, which follows the federal Manual on Uniform Traffic Control Devices and the state's supplement. The plan specifies the advance warning signs and their distances, the length of the taper that closes a lane, the arrow boards, the barriers and drums, the lighting at night, the speed limit and the protection of drop-offs and equipment. A zone set up short of the plan, or changed during the day without the plan being followed, is the contractor's negligence, and a crash the shortfall contributed to is the contractor's liability.

The road's owner third. The state or local agency approved the plan, inspects the zone, and sometimes operates it with its own crews. A plan that was itself inadequate, or an agency that knew the zone was out of compliance and did nothing, can be liable, subject to the government claim rules: notice within months, damage caps in many states, and immunity for discretionary design decisions in most. Claims against agencies are harder than against contractors, which is why the contractor is usually the focus.

The Manual on Uniform Traffic Control Devices is the national standard for work zone traffic control, adopted by every state with supplements, and it is detailed: the sequence and spacing of advance warning signs by road speed, the taper length formula for a lane closure, the use of arrow boards and changeable message signs, the placement and spacing of channelizing devices, the requirements for nighttime lighting and retroreflectivity, and the protection of workers and hazards with barriers. The contractor's plan incorporates it, and the question in a claim is whether the zone as it existed at the time of the crash matched.

The evidence is the contractor's own records. Contractors keep daily traffic control logs or diaries recording what devices were in place, inspections of the zone, often with photographs, and the times lanes were closed and opened. The agency's inspectors keep their own reports. Together with the police report, the crash photographs, dashcams and the reconstruction of where the queue formed relative to the warning signs, they show whether the zone gave drivers the warning the standard requires.

A traffic engineering expert compares the zone to the plan and the standard, and the comparison is the heart of a contractor claim. Common findings: advance warning signs placed too close to the taper for the speed, a taper too short, an arrow board missing or dark, the queue extending past the first warning sign so that drivers encountered stopped traffic before any warning, a lane shift without adequate channelization, and nighttime zones without the required lighting.

Suppose you were driving on an interstate at night when traffic ahead stopped for a lane closure, and a pickup behind you did not stop and struck your car at highway speed. You suffered a fractured vertebra and a brain injury, with $214,000 in medical bills and lasting cognitive effects. The pickup's driver carried a $50,000 policy.

The pickup's insurer paid its limit. Your attorney obtained the traffic control plan from the state through a records request, the contractor's daily logs through a preservation letter and then discovery, and the state inspector's reports. The plan called for advance warning signs beginning a mile before the taper and an arrow board at the taper; the contractor's log for that night showed the first sign placed a half mile out, and the inspector's photograph from that evening showed the arrow board dark. The queue, reconstructed from the vehicles' positions, extended a quarter mile past the first sign, so you and the pickup had reached stopped traffic before any warning.

The claim against the contractor, under its commercial policy, was for negligent traffic control that contributed to the crash, and the contractor's insurer, after a traffic engineer's report, contributed the bulk of the settlement. A claim against the state was evaluated and not pursued because of the cap and the design immunity. Your own underinsured motorist coverage also paid. All figures are hypothetical; the pattern of a queue beyond the first sign is a common one.

The zone changes every day and the contractor's records are the evidence, so the first steps are about preserving the state of the zone at the moment of the crash.

• Photograph the zone as it existed: every sign, its position, the taper, the arrow board and whether it was lit, the drums and barriers, the lighting, and the position of the queue relative to the signs.
• Note the contractor's name from signs, trucks and equipment, and the agency whose project it is.
• Get the police report and ask whether the officer noted the traffic control conditions.
• Have a preservation letter sent within days to the contractor for its daily traffic control logs, inspection photographs and the plan, and to the agency for its inspector reports.
• Get witness names, including other drivers in the queue who may have seen the signs or their absence.
• Get medical care the same day; work zone rear-end crashes are at highway speed and the injuries are serious.
• Calendar the government notice deadline in case a claim against the agency is pursued; it is months, not years.

Every state has adopted the federal traffic control manual with its own supplement, and the contractor's duty to the traveling public is recognized everywhere, though the standard of care and the effect of the agency's approval of the plan vary: in some states a contractor that followed the approved plan exactly is protected even if the plan was deficient; in others the contractor retains an independent duty of reasonable care. Work zone speed limits and doubled fines are statutory in most states and a violation is evidence of negligence.

Claims against the state or local agency are governed by its tort claims act: notice within 30 days to a year depending on the state, damage caps in many, and immunity for discretionary decisions including the design of the traffic control plan in most, with liability more often available for failure to maintain or to correct a known hazard. The notice deadline runs from the crash and is the first date to calendar.

Comparative negligence applies to the injured driver's own conduct, including speed through the zone, and the contributory negligence states bar recovery for any share. Deadlines against private parties are the state's injury statute, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina. Workers' compensation for workers struck in the zone follows the state's system, with a third-party claim against the driver and other responsible parties preserved.

Road workers are killed and injured in work zones every year, struck by passing vehicles and by construction equipment inside the zone. A worker struck by a passing driver has a workers' compensation claim against their own employer, which pays medical bills and partial wages without regard to fault and bars a lawsuit against the employer, and a full injury claim against the driver, which is where pain and suffering and the full wage loss are recovered. The driver's insurer defends that claim as any other.

A worker struck by equipment or a vehicle belonging to another contractor on the site, or injured by a hazard another party created, has a third-party claim against that party. The general contractor and the agency may be examined for site safety failures. Federal workplace safety rules and state regulations for work zone worker protection, including the requirement for positive protection such as barriers where traffic speeds and volumes warrant, are the standard.

The workers' compensation insurer has a lien on the third-party recovery for what it paid, resolved at settlement. Flaggers and workers at the edge of the zone, where positive protection is often absent, are the most frequently injured.

A work zone crash claim is an ordinary crash claim against the driver with a second claim against the contractor whose traffic control may have fallen short of the plan and the standard, and sometimes a third against the agency, with its notice deadline. The questions to answer early are what the zone looked like at the moment of the crash, who the contractor and agency were, and whether the contractor's records have been preserved. Attorneys who handle these claims retain traffic engineers and work on contingency.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you were hurt in a crash in a construction zone, you can request a free claim review before the zone changes.

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• Workplace Injury Claims: Workers' Compensation and Third-Party Lawsuits
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• Accident on Icy Roads or in Bad Weather: Who Is at Fault
• Airbag Did Not Deploy in a Crash: Can You Sue, and Whom?
• Amputation Injury Claim: Prosthetics and Lifetime Costs
• At Fault in a Car Accident? Comparative Negligence Explained
• What Is the Average Car Accident Settlement? What Sets the Value

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