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Haghighi v. State8/27/2002
(Not Designated for Permanent Publication)
This wrongful death action against the State, its highway construction contractor, and its subcontractor stems from a two-vehicle accident on a temporary road diverting traffic from a state highway. The operative petition alleged the defendants were negligent in planning and building the temporary road, referred to as a "shoofly," as well as in choosing and maintaining the traffic control devices used to warn motorists of the diversion from the highway. The main issues are the overruling of a motion for mistrial made during jury selection, the admissibility of expert and lay witness testimony, and certain jury instructions.
FACTUAL BACKGROUND
Shahrokh H. Haghighi (Haghighi) was driving five passengers in a 1991 Plymouth Voyager van eastbound from Grand Island to Aurora, Nebraska, on U.S. Highway 34 on the morning of September 14, 1997. Vicki Schwaninger, a nurse who regularly commuted to Grand Island to work, left Aurora for Grand Island in her 1984 Pontiac Bonneville, also driving on Highway 34. Although the sun had risen, fog reduced visibility to between 50 and 100 yards in the area. About 4 miles west of Aurora, the temporary "shoofly" road diverted traffic away from and then back onto Highway 34. It was constructed north of the highway in May 1997 during a railroad overpass project called the Aurora West Viaduct.
At about 8:45 a.m., as she approached the "shoofly" from the east, Schwaninger encountered at least seven signs at different points along the highway warning of the construction zone and diversion of traffic from Highway 34. A reverse curve sign that advised of a 45-m.p.h. speed limit was posted near the "shoofly" entrance. The established highway was blocked by barrels and three barricades where the "shoofly" began on the east end of the project. The barricades were "staggered" along the inner edge of the curve, directing traffic from Highway 34 so as to "channel" traffic onto the "shoofly." Each barricade was topped by a yellow "Type A" light which was not on at that time because "Type A" lights are designed to flash only at night regardless of the weather conditions, such as fog. Although she was supposed to move to the right, off the highway and onto the "shoofly," Schwaninger's car proceeded straight, crossed the yellow, solid, double centerline of the road, and entered the eastbound lane. Her car collided with Haghighi's eastbound van as it was about to exit the "shoofly" by turning left to re-enter the permanent highway. As a result of the collision, Haghighi and Schwaninger both were killed.
PROCEDURAL BACKGROUND
Virginia J. Haghighi (Virginia), Haghighi's wife and his estate's personal representative, filed an amended petition in Hamilton County District Court against the State, pursuant to the State Tort Claims Act, as well as against the project contractor, United Contractors, Inc. (United), and the project subcontractor, All Road Barricades, Inc. (All Road) (collectively the defendants), alleging Haghighi's wrongful death. The court reported in a pretrial order that all matters would be tried to a jury but that the jury's verdict with respect to the State would be only advisory. Virginia's amended petition included 13 allegations that the defendants negligently designed and built the "shoofly." The allegations relevant to this appeal are: (1) The "reverse turns" located at the east end of the "shoofly" were built with "turn radii" smaller than provided for by the project's specifications and plans, (2) there was a failure to properly calculate the safe speed for negotiating turns to enter and leave the "shoofly," (3) there were not "steady or flashing burn" lights on the
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