Jose L. HERNANDEZ, as Special Administrator of the Estates of Jose L. Hernandez, Jr., deceased, and Salvador Hernandez, deceased, Plaintiff-Appellee,
Gary RIDLEY; Taylor Henderson, Defendants-Appellants, Duit Construction Company Inc., Defendant-Cross-Claimant-Counter Defendant, George Raymond; Matthew Romero; Shawn Davis; Miguel Dovalina; Anthony Echelle; Shawna Robb; Matthew Swift, Defendants.
Ethel Cooper, Defendant-Cross-Defendant-Counter-Claimant.
[Copyrighted Material Omitted]
David W. Lee, of Lee Law Center, P.C., (Emily B. Fagan, of Lee Law Center, P.C., and Greg Eldridge, Assistant General Counsel, Oklahoma Dept. of Transportation, with him on the brief), Oklahoma City, OK, for Defendants-Appellants.
Donald E. Smolen, II, (Laura M. Lauth with him on the brief), of Smolen, Smolen & Roytman, Tulsa, OK, for Plaintiff-Appellee.
Before HARTZ, McKAY, and O'BRIEN, Circuit Judges.
O'BRIEN, Circuit Judge.
Jose Hernandez, Jr., and Salvador Hernandez were killed by a motorist while they were performing road construction in Oklahoma. Their representative sued their employer, Duit Construction Company, and the motorist and alleged a substantive due process claim against a host of Oklahoma Department of Transportation (ODOT) employees. All ODOT employees except the director and the resident engineer on the construction project were dismissed by the district court. The question is whether the two remaining employees are entitled to qualified immunity. The district judge said no. But, because
the alleged facts reveal no constitutional violation, we must reverse.
The case was decided on a motion to dismiss so we take the facts from the second amended complaint. Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.), cert. denied,
__ U.S. __, 134 S.Ct. 426, __ L.Ed.2d __, 2013 WL 3994417 (Oct. 15, 2013). Duit Construction Company was hired by ODOT to serve as the general contractor on a road construction project on Interstate 40 near Yukon, Oklahoma. The Hernandezes— Jose, Jose Jr., and Salvador— worked for Duit. At the time of the accident, Gary Ridley was director of ODOT and Taylor Henderson, an ODOT employee, was the resident engineer overseeing the project. In that capacity, Henderson had " ultimate authority" over the project with respect to implementation of traffic control devices, lane closures and speed reductions, as well as authority to suspend the project if conditions were unsafe for workers. (Appellants' App'x at 25.)
The contract between ODOT and Duit  imposed penalties on Duit if it failed to complete the project on time. Another part of the contract required ODOT's approval of traffic control devices used during the project including the erection of barrier walls— concrete barriers placed between the construction project and oncoming traffic. It also called for a nighttime lane closure beginning at 7 P.M. Duit could obtain additional lane closures by paying a " ‘ lane rental fee’ often at the cost of $30,000 an hour." (Appellants' App'x at 27.) ODOT could waive the fee if doing so would benefit Oklahoma citizens.
Prior to the accident, Duit made multiple requests to ODOT to allow additional lane closures to ensure the safety of its workers. One of those requests, made twenty days before the accident, sought a daytime lane closure for thirty days. Henderson denied all requests. Duit also requested the speed limit in the construction area be reduced to 50 mph. That request was also denied.
On June 30, 2010, Duit required the Hernandezes to begin work on the project at 5 P.M. even though the lane where they would be working was not scheduled to be closed with concrete barriers until 7 P.M. While they were working, distracted motorist Ethel Cooper drove off the roadway, running over and killing Jose Jr. and Salvador. After the accident, the Occupational Safety and Health Administration conducted an investigation which included interviews of Duit employees. The employees said ODOT was their " biggest enemy" with respect to construction safety. (Appellants' App'x at 26.)
Jose (hereinafter Hernandez) was appointed personal representative of the estates of Jose Jr. and Salvador. He brought suit against Duit, Cooper, and several ODOT employees. The ODOT employees moved to dismiss the complaint based on qualified immunity and failure to state a claim. The district judge ...