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FOUNTAIN v. SE-KAN ASPHALT SERVICES8/7/1992
This is an appeal of a wrongful death action filed by the widow and surviving children of David L. Fountain. Fountain was killed when his truck collided with a dump truck hauling asphalt on a rural, dusty, Miami County road. The plaintiffs sued Miami County (County), the road contractor, Se-Kan Asphalt Services, Inc. (Se-Kan), a subcontractor who owned the dump truck, and the driver of that truck. A settlement was reached with all the defendants, with the exception of Se-Kan. The trial court granted summary judgment in favor of Se-Kan, and the plaintiffs appeal.
The focus of plaintiffs' lawsuit is a road construction project. This construction project began when County issued bid materials for the "1988 Miami County Chip and Seal Project." The project entailed the chipping and sealing of approximately 45 miles of paved county roads. Se-Kan was awarded the contract on this project.
The "contract" between the County and Se-Kan consisted of three letters written from the county road supervisor to Se-Kan and a map showing the roads to be improved. There is very little detail in the so-called contract, but it does provide that Se-Kan is to be responsible for "traffic control."
Although a number of other roads were involved in the project, this case arises out of work being done on a highway known as John Brown Highway. John Brown Highway is a paved Miami County highway located just west of Osawatomie. The contract required Se-Kan to chip and seal a specified section of John Brown Highway.
The County agreed to supply the chip and seal materials from its own quarries. The asphalt used to chip and seal John Brown Highway was hauled by Se-Kan from a county quarry 2.6 miles from the construction site. Travel to and from the quarry to John Brown Highway was done over Indianapolis Road. Indianapolis
Road is a gravel county highway. Se-Kan's dump trucks traveled over Indianapolis Road to deliver asphalt to the construction project. Se-Kan had five to seven dump trucks continuously hauling asphalt from the quarry to the construction site. Some of these trucks were owned by Se-Kan, and others were owned by subcontractors. The truck involved in the fatal accident with Fountain was owned by a subcontractor.
Indianapolis Road was not mentioned in the contract documents and was not under construction or repair by Se-Kan. There is no indication in the record that the contract documents required Se-Kan to perform any duties insofar as Indianapolis Road was concerned. The road was the most direct route to and from the construction area, but was not mentioned in the agreement.
The accident happened on a hot, dry, day in late August. Under these circumstances, the truck traffic over Indianapolis Road created a dusty condition. The heavy dust raised by trucks and other vehicles traveling the road, at times, almost totally obscured the vision of drivers using Indianapolis Road. Fountain was an oil pumper and, apparently, was very familiar with Indianapolis Road. The record shows he was making his third trip of the day over the road at the time of the accident.
Under the conditions described above, Fountain's pickup collided head-on with a dump truck, and Fountain was killed. Although the evidence indicates the dump truck was two feet left of center, there is little question but that the heavy dust raised by trucks and other traffic on the road obscured the vision of both drivers and was a substantial contributing factor to the accident.
The plaintiffs' cause of action against the driver of the dump truck and its owner was based on the negligence of the driver. This action was settled against those defendants for $22
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