Kentucky Fried Claim: Contractor Preserves Immunity from Suit by Complying with Government Contract SpecificationsRecently, in Cross v. L-M Asphalt Partners, Ltd., the Kentucky Court of Appeals upheld a contractor’s immunity from suit for negligence, where the contractor complied with the contract and construction specifications provided by the Kentucky Transportation Cabinet Divisions of Construction Procurement (KYTC). The case arose from a collision between a motorcycle and a car at an intersection where construction was being performed. At the time of the accident, the contractor had placed traffic barrels near the median to create a safe zone for construction. The motorcycle driver and passenger sued the contractor for negligence alleging the barrels created a line-of-sight problem for motorists, which caused the collision.

The contractor moved for summary judgment arguing that its strict compliance with the contract and construction specifications from KYTC for placement of the barrels relieved it from liability under the doctrine of sovereign immunity. The trial court granted the contractor’s motion and dismissed the lawsuit. The motorists appealed, but the appellate court agreed with the trial court below and upheld the judgment.

In upholding the judgment, the appellate court reviewed Kentucky law on immunity for contractors on government projects. Per the court, Kentucky law provides that a contractor who makes installations, “such as the placement of barrels in the instant case,” in conformity with the contract specifications on a public project and is not negligent in performing that work cannot, as a general rule, be liable for damages that result from the installation. Absent such immunity from suit, public works’ costs would balloon because every contractor would have to hire engineers to review and double check all government plans and specifications.

After reviewing the summary judgment evidence presented by both sides, the appellate court concluded that the motorists had not demonstrated the contractor acted negligently. The record showed that the contractor placed the barrels as instructed by KYTC, and the motorists failed to contradict that evidence. While the motorists presented expert evidence that was critical of the government’s design and use of barrels (as opposed to cones or tubular markers), they did not rebut the evidence that KYTC, at all times, required the contractor to use the traffic barrels. The evidence presented by the motorists may have demonstrated negligence in KYTC’s planning and oversight of construction, but it did not refute the proof that the contractor “performed its duty in conformity with the government’s contract.”

Lessons from Cross

In states with immunity doctrines similar to Kentucky’s, government contractors should be aware first of the possible immunity and second of what is required to preserve immunity from suit. In particular, on state government projects that require attention to public safety measures, such as many road or highway improvements, contractors should invest time and training to make sure their project management teams understand the scope of immunity. For example, depending on the circumstances, if a contractor has design responsibility on a project, it may not be able to take advantage of this immunity. Similarly, if a contractor ignores a government specification or direction or implements a change to the work without first securing government approval, that contractor may be liable for losses or damages that result from that act or omission.

If you have any questions about the Cross case, immunity from suit on public works, or construction law generally, please do not hesitate to reach out to Bryan Thomas or Aman Kahlon.

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Photo of D. Bryan Thomas D. Bryan Thomas

With a background in engineering, litigator Bryan Thomas is perfectly positioned to serve the full spectrum of construction industry clients. His practice focuses on construction- and property-related litigation where he represents owners, EPC contractors, general contractors, subcontractors, and suppliers in issues and projects…

With a background in engineering, litigator Bryan Thomas is perfectly positioned to serve the full spectrum of construction industry clients. His practice focuses on construction- and property-related litigation where he represents owners, EPC contractors, general contractors, subcontractors, and suppliers in issues and projects ranging from state-of-the-art power plants to residential homes. View articles by Bryan

Photo of Amandeep S. Kahlon Amandeep S. Kahlon

Aman Kahlon represents owners, general contractors, and subcontractors. His experience ranges over a wide variety of disputes. He advises clients on delay, interference, defective design, and negligence claims. Aman also devotes a significant portion of his practice to contract review, drafting and negotiation…

Aman Kahlon represents owners, general contractors, and subcontractors. His experience ranges over a wide variety of disputes. He advises clients on delay, interference, defective design, and negligence claims. Aman also devotes a significant portion of his practice to contract review, drafting and negotiation; contract and claims administration; and lien and bond law issues.

Additionally, Aman has substantial compliance experience in consumer financial services. He has assisted in the development of audit testing programs and foreclosure policies and procedures for several clients. He also regularly participates in the auditing and remediation of clients’ foreclosure practices.