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Kraus v. Hy-Vee11/9/2004
e immediate installation of an electric signal at the intersection when MHTC's design manual mandated it due to the volume of traffic. Appellants allege that Transystems owed to them "a duty to exercise a reasonable standard of care, such as following the guidelines in said manuals, whereby [Transystems] knew or should have known" that the intersection required electric traffic signals due to the high volume of traffic associated with the opening of the Hy-Vee store. Appellants further allege that Transystems breached this duty by " negligently providing an incorrect and vague Traffic Impact Study, which it knew Defendants would rely upon."
In their reply brief, appellants acknowledge that Transystems did not control the intersection, but argue that Transystems did have "control and influence over the data and analysis of that data in the traffic control study" that the other defendants relied upon.
Because the petition does not allege that Transystems did any work on or near the road itself, this case does not correspond to those cases where a party has rendered itself liable "for the safety of a highway. . . by the voluntary construction of improvements, the performance of work, or the assumption of some duty with respect to the maintenance or repair of the way." Benedict, 44 S.W.3d at 428 (internal quotation marks and citations omitted).
Nor does it exactly correspond to those cases in which an independent contractor has rendered itself liable for work done on or near the road at the behest of the state. Even if one could infer from the petition that Transystems was acting as an independent contractor for MHTC and the other defendants in this case, the petition does not allege that Transystems did any work on or near the road. Cf. 39 A M. J UR. 2D Highways, Streets, and Bridges Section 407 (1999) (" ontractors who have contracted with public authorities for the construction of highways, streets, and bridges, are liable to travelers for injuries proximately resulting from negligence in the performance of the work contracted for. In this regard, it has been said that a contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction, and that a prime contract between the state and a highway construction contractor and a contract between the contractor and a subcontractor imposed a duty, aside from any common-law duty, upon the contractors to maintain proper traffic control for the safety of the public during the course of road repairs.").
But this case does correspond to those recognizing liability under section 324A of the R ESTATEMENT ( S ECOND) OF T ORTS, where a party renders services to another, which that party should recognize as necessary for the protection of some third person:
Judicially adopting a provision [section 324A] of the Restatement (Second) of Torts, which provides that one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if his failure to exercise reasonable care increases the risk of such harm, or he has undertaken to perform a duty owed by the other to the third person, or the harm is suffered because of reliance of the other or the third person upon the undertaking, the view has been followed by some courts that civil engineers who undertook to inspect bridges or to design traffic control systems owed a duty to the public to perform their tasks in a competent manner and could b
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