                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3926
                                  ___________

Rosa Maria Lopez; Regions Bank,        *
Special Administrator for the Estate   *
of Isidro Lopez, Deceased,             *
                                       *
            Plaintiffs/Appellees,      *
                                       *
v.                                     * Appeal from the United States
                                       * District Court for the
Robert Mendez; Roadway Express, Inc., * Eastern District of Arkansas.
                                       *
            Defendants/Appellees,      *
                                       *
v.                                     *
                                       *
James Construction Group,              *
Originally Sued As Angelo Iafrate      *
Construction, L.L.C.,                  *
                                       *
            Third Party Defendant/     *
            Appellant.                 *
                                  ___________

                            Submitted: October 12, 2005
                               Filed: December 23, 2005(Corrected: 1/06/06)
                                ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.
      James Construction, L.L.C. ("James") appeals from a judgment entered on a
jury verdict finding James 40% responsible for a traffic accident in a construction
zone. James, a contractor, performed highway construction work for the State of
Arkansas. James argues that the acquired-immunity doctrine shielded the company
from liability and that the district court1 therefore erred in denying its motion for
judgment as a matter of law or, in the alternative, a new trial. We affirm.

                                     I. Background
       James contracted with the Arkansas Highway and Transportation Department
("AHTD") to complete highway improvements and paving work at the intersection of
Interstates 40 and 440. The contract expressly provided that "[t]he contractor shall
assume full responsibility for the safe and uninterrupted movement of traffic through
construction areas for the duration of the project." This responsibility included
erecting and maintaining traffic control devices, such as traffic barrels, construction
warning signs, yield signs, and stop signs. To ensure that James fulfilled its duty to
adequately warn motorists, the contract required James to: (1) comply with every
detail of the contract's plans and specifications;2 (2) comply with the Manual on
Uniform Control Devices for Streets and Highways ("MUTCD");3 (3) take steps


      1
       The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
      2
       Standard Specifications § 104.01 provided that:

      The intent of the Contract is to provide for the construction and completion of
      every detail of the work described. The Contractor shall furnish all labor,
      materials, equipment, tools, transportation, and supplies required to complete
      the work according to the plans, specifications, and terms of the Contract.
      3
       The construction contract required James to erect and maintain traffic control
devices in accordance with the MUTCD. The proper location of the signs, the proper
number of the signs, and the proper spacing of the signs as outlined in the MUTCD
applied to the contract. Section 604.03 of the standard specifications specifically

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James deemed reasonably necessary to provide the safe flow of traffic and the safety
of the public; and (4) correct any deficiencies that were out of compliance with the
plans and specifications, the MUTCD, or James's judgments about what was
reasonably necessary to protect the safety of the public.

       While doing asphalt-paving work on Interstate 40, James constructed a
temporary ramp between the two highways. The permanent on-ramp from Interstate
440 East to Interstate 40 East curves in a gradual arc to the right, which allows drivers
to maintain their speed close to normal highway speed as they merge from Interstate
440 to Interstate 40. James had blocked off the permanent on-ramp at a point about
half way along its length. At that point, James had diverted traffic onto a temporary
ramp. This temporary ramp curved back to the left, away from the arc of the
permanent on-ramp, and then intersected Interstate 40 at an angle. James placed stop
signs at the end of the temporary ramp, one on each side of it.

      Tragically, an accident occurred near the construction zone. A Roadway
Express, Inc. ("Roadway") tractor-trailer driven by Robert Mendez collided with a
vehicle driven by Isidro Lopez and his wife, Rosa. The accident occurred when
Mendez attempted to exit Interstate 440 and enter Interstate 40 eastbound via the
temporary ramp. Mendez's truck struck a car parked at the stop sign, crossed two
eastbound lanes of Interstate 40, the median, and two westbound lanes of Interstate
40, and finally struck the Lopez automobile. The impact killed Mr. Lopez and
seriously injured Mrs. Lopez.

       Mrs. Lopez subsequently brought a wrongful death and survival action in tort
against Mendez, Roadway, and James. One of the hotly-contested factual issues at
trial was whether James had placed "Stop Ahead" signs to warn motorists of the
upcoming stop signs placed at the juncture of the temporary ramp at Interstate 40. No


stated that compliance with the MUTCD was required.

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party disputed that the original plans called for "Yield" signs at that junction and
"Yield Ahead" signs that motorists would see before approaching the intersection of
the temporary ramp and Interstate 40. According to James, this plan had been orally
modified to allow the use of "Stop" and "Stop Ahead" signs rather than the "Yield"
and "Yield Ahead" signs. At trial, the parties disputed whether these signs were in
place when the accident occurred.

      During the trial, James moved for a directed verdict, claiming it was protected
from liability by the Arkansas doctrine of acquired-immunity. The district court
denied the motion. The jury returned a verdict for Mrs. Lopez, finding both James and
Mendez negligent. The jury also found that James failed to perform its work in
accordance with its contract with the State of Arkansas. Finally, the jury found that
Roadway and Mendez were 60% responsible and James was 40% responsible for the
accident.

        The district court entered judgment on the jury's verdict. James then moved for
judgment as a matter of law or, in the alternative, for a new trial. The trial court denied
James's motion. James appeals, arguing that the acquired-immunity doctrine bars any
liability being assigned to James because representatives for the State of Arkansas
testified at trial that James had performed according to the plans and specifications in
the contract; in addition, James argues that the district court's instructions to the jury
did not accurately reflect the law and deprived James of its acquired-immunity
defense, entitling James to a new trial.

                                    II. Discussion
                          A. Acquired-Immunity Doctrine
      James contends the district court erred in denying its motion for judgment as
a matter of law or, in the alternative, a new trial because it is entitled to acquired
immunity. In response, appellees assert that James is not entitled to acquired immunity
because the jury could find James negligently performed its contract with the State of

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Arkansas from evidence of record. We review the district court's decision to deny a
motion for judgment as a matter of law de novo. Kipp v. Mo. Highway & Transp.
Comm'n, 280 F.3d. 893, 896 (8th Cir. 2002). We review a district court's decision to
deny a motion for a new trial under an abuse of discretion standard. Blair v. Wills, 420
F.3d 823, 829 (8th Cir. 2005).

       In general, litigants may not sue the State of Arkansas because of the state's
sovereign immunity. Univ. of Ark. for Med. Sci. v. Adams, 117 S.W.3d 588, 590 (Ark.
2003). The state's sovereign immunity does not extend to independent contractors
engaging in work for the state. Southeast Constr. Co. v. Ellis, 342 S.W.2d 485, 488
(Ark. 1961). However, the acquired-immunity doctrine creates an exception to this
rule. The exception provides that a contractor who performs its work according to the
terms of its contract with a governmental agency, and under the governmental
agency's direct supervision, is not liable for damages resulting from its performance.
Smith v. Rogers Group, Inc., 72 S.W.3d 450, 455 (Ark. 2002). Thus, if damages result
from the contractor's performance of a construction contract with the state, "and the
damages result from something inherent in the design and specifications required by
the public agency, the contractor is not liable unless he is negligent or guilty of a
wrongful tort." Guerin Contractors, Inc. v. Reaves, 606 S.W.2d 143, 144 (Ark. App.
1980). The purpose of the doctrine is to protect an "innocent contractor who has
completely performed the work to the government's plans and specifications." Smith,
72 S.W.3d at 456.

      The acquired-immunity doctrine, however, does not protect a contractor "who
performs the contract in a negligent manner resulting in damages to others." Id.
Therefore, while the doctrine shields from liability a contractor who performs in
accordance with the terms of the contract, it does not shield from liability a contractor
who acts negligently while performing the terms of the contract. See Barker v. Rogers
Group, Inc., 45 S.W.3d 389, 394 (Ark. App. 2001).



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        Muskogee Bridge Co., Inc. v. Stansell, 842 S.W.2d 15 (Ark. 1992) provides
helpful guidance on the operation of the doctrine. In Muskogee, a bridge contractor
contracted with the State of Arkansas to perform a bridge construction project. The
contractor was to perform the work in accordance with AHTD plans and
specifications. Id. at 17. The construction contract obligated the contractor to furnish
all signs, barricades, and temporary traffic control devices for temporary hazard
protection. In addition, the contract stated that the contractor must take all action
reasonably necessary to protect the public. Id. at 19. During the construction of the
bridge, the plaintiff crossed the bridge, hit a drop-off caused by the construction, lost
control of her car, and hit another car. Id. at 17. The contractor failed to erect any
signs indicating the dangerous drop-off despite the contract's express language. Id.
The plaintiff sued the contractor, alleging that it negligently left a dangerous drop-off
in the roadway and failed to adequately warn motorists about the dangerous condition.
Id. At trial, an AHTD representative testified that the drop-off could only have been
an inch-and-a-half according to the project specifications but agreed that if something
there created the effect of a speed bump then something "was not right." Id. at 18.
Similarly, the contractor's project supervisor testified that the drop-off was only an
inch-and-a-half deep. Id. Four other witnesses, however, testified that the drop-off was
significantly deeper. Id. at 18–19. Based on this evidence, the Arkansas Supreme
Court held that the trial court was correct in finding that the contractor was not
protected by the acquired-immunity doctrine. Id. at 20.

      On different facts, the Arkansas Supreme Court, in Smith, held that an asphalt
contractor was entitled to acquired immunity. 72 S.W.3d at 457. The plaintiffs had
brought a negligence action against the contractor, alleging that the contractor used
an inappropriate type of asphalt—Type 3 asphalt—on a high-volume highway, which
increased the potential for accidents caused by hydroplaning. Id. at 453. The contract
between the contractor and the AHTD, however, specifically called for the use of
Type 3 asphalt. Id. The undisputed evidence submitted at trial demonstrated that the
contractor performed its contract with the AHTD exactly as specified. Id. at 457. The

                                          -6-
resident engineer of the AHTD testified that the contractor completed the project in
full compliance with the specifications as set forth in the contract. Id. Because the
contractor acted in accordance with the terms of the contract in performing the
contract, it was entitled to acquired immunity. Id.

       This case is more analogous to Muskogee than to Smith. Here, Lopez, like the
plaintiff in Muskogee, alleged that James was negligent for failing to perform
according to the terms of the contract with the State of Arkansas, not for acting in
accordance with the terms of the contract as in Smith. James's contract with the AHTD
provided that all traffic control devices used on the road would conform to the
MUTCD, which required James to use a complete series of signs to alert drivers as
they approached the construction site. In addition, James and the AHTD had orally
modified the plans and specifications to require "Stop" and "Stop Ahead" signs at the
juncture of the temporary ramp at Interstate 40.

       Several witnesses testified that they saw no "Stop Ahead" signs on the night of
the accident. First, Mendez testified that prior to encountering the temporary ramp, he
saw a sign about a half mile back from the temporary ramp that read "Road Work
Ahead" but saw no other signs, warnings, or "Stop Ahead" signs. Second, David
Franklin, another motorist, testified that he did not see any "Stop Ahead" signs. Third,
Jerry Bishop, Roadway's corporate representative, stated that when he went to the
accident scene, he did not see any "Stop Ahead" signs. Fourth, Trooper Michael
Dawson, who investigated the accident for the Arkansas State Police, testified that he
did not see, nor make any note of, any "Stop Ahead" signs. Additionally, the video of
the scene taken from Dawson's in-car camera a few hours after the accident showed
that no stop signs were located in the spot where Traffic Control Supervisor Jeff
Bise—the James employee responsible for setting up the traffic control devices—
originally claimed he erected them.




                                          -7-
        Traffic Control Engineer Archie Burnham testified that if there was a detour
and a lane closure on an interstate highway, the MUTCD would require James to use
a complete series of warning signs to alert drivers as they approached the construction
site; such warnings signs had to appear on both sides of the highway. Burnham also
stated that the failure to use a complete series of signs to repeatedly warn drivers as
they approached the scene would violate the MUTCD and constitute a "gross violation
of the minimum standards in traffic control." Finally, Scott Eldridge, an inspector for
the AHTD, testified that if no "Stop Ahead" signs were present on the night of the
accident, then James would have been in violation of the contract with the State of
Arkansas.

       Whether James was negligent in its performance of the contract was a question
of fact for the jury. Given the substantial evidence that the required warning signs
were not in place on the night of the accident as contractually required, we hold that
the district court did not err in refusing to grant the motion for judgment as a matter
of law, or in the alterative, for a new trial.

                                  B. Jury Instruction
       James also argues that the district court erred in giving Instruction No. 25 to the
jury, claiming that the first sentence of the instruction stripped it of its acquired-
immunity defense. In response, the appellees contend that the district court did not
abuse its discretion in instructing the jury according to Arkansas Model Jury
Instruction (AMI) 1202. We hold that the district court did not abuse its discretion in
giving Instruction No. 25.

      Instruction No. 25 stated the following:

      It was the duty of James Construction Group, L.L.C., in the performance
      of the construction work to use ordinary care to provide for the safety of
      the traveling public and to give reasonable warning to travelers of any
      hazards created by its activities. It was also the duty of James

                                           -8-
      Construction, L.L.C., to use ordinary care to comply with the provisions
      of its contract with the Arkansas State Highway Department, including
      any modifications thereof, that were inserted for the safety of the public.

      The district court took Instruction No. 25 verbatim from AMI 1202. In the
manual, the second sentence of AMI 1202 is in brackets, meaning that the district
court should give it in some circumstances but not others. In contrast, the first
sentence of AMI 1202—the one to which James objects—is not in brackets, which
means that it should always be given. In Arkansas, a trial judge is to give the
applicable model instruction unless it does not accurately state the law. Adkins v.
Kelley, 424 S.W.2d 373, 376 (Ark. 1968). Instruction No. 25 correctly stated Arkansas
law.

      With regard to a contractor's duty to protect the public, the Arkansas Supreme
Court stated in Muskogee:

      Under the contract Muskogee Bridge was to provide safeguards to
      protect the public from dangerous conditions. But apart from the
      agreement, Muskogee Bridge, as general contractor, had a duty to protect
      the public against unreasonably dangerous conditions on the job site.

842 S.W.2d at 20. Just as in Muskogee, James had a duty under the contract to provide
safe traffic flow at all times. Bise admitted that James had a duty under the contract
to make its own determinations about what was reasonably necessary to protect the
public's safety. Thus, like Muskogee, the contract required James to provide
safeguards to protect the public from dangerous conditions. In addition, under
Muskogee, apart from the contract, a general contractor has a duty to protect the public
against unreasonably dangerous conditions on the job site.

      Finally, the question of whether a party is entitled to immunity is a question of
law, not fact. See Creashak v. Adhere Sch. Dist., No. 04-1291, 2005 WL 1120239

                                          -9-
(Ark. May 12, 2005) (stating that whether Arkansas school districts are entitled to
sovereign immunity is a question of law). As such, the question of immunity is for the
court. Here, the district court did not give the jury any instructions regarding the
acquired-immunity doctrine. Instead, the district court submitted to the jury the
disputed fact question of whether James performed its work in accordance with the
terms of its contract with the State of Arkansas. Because the jury unanimously
answered "no," the district court determined, as a matter of law, that the acquired-
immunity doctrine did not shield James from liability for its negligence.

       Accordingly, we affirm the district court's denial of James's motion for
judgment as a matter of law and the district court's denial of James's motion for a new
trial.
                       ______________________________




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