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Work Zone Speed Limits Clairified

Work Zone Speed Limits Clairified

The question of what a speed limit is in a construction zone can be confusing. There is some conflict as to what the speed limit is an active work zone versus a work zone. A party going over the posted speed limit may attempt to argue that unless the work zone is active, the speed limited is the standard speed limit and not the reduced post speed limit in the construction zone. Don’t let that argument be made although at first blush it may appear such an argument is correct. A closer review of the law shows that the work zone need not be “active” for the lower reduced speed limit to apply.  

Law

“Active work zone” is defined as “The portion of a work zone where construction, maintenance or utility workers are located on the roadway, berm or shoulder.” (emphasis added) 75 Pa. C.S.A. § 102. When passing through an active work zone, a person must not drive a vehicle at a speed greater than the posted limit. 75 Pa. C.S. § 3365(c.1). The section reads: “(c.1) Active work zones. When passing through an active work zone, no person shall drive a vehicle at a speed greater than the posted limit. An official traffic-control device shall indicate the beginning and end of each active work zone to traffic approaching in each direction.” A person driving at a speed greater than the posted limit when passing through an active work zone is guilty of a summary offense which carries with it a fine. 75 Pa. C.S. § 3365(d)(1)(i). From this specific section, it would appear that for the speed limit to apply, the workers must be, in the present tense, located in the construction zone at the time of the incident. However, don’t be fooled into accepting and believing the same. As there is more law on this issue that shows a very technical requirement for the same and that the speed limit may apply even if the workers are not actively working the area.

The state of Pennsylvania requires specific signs and lights to designate an active work zone. An official traffic-control device must indicate the beginning and end of each active work zone to traffic approaching in each direction. 75 Pa. C.S. § 3365(c.1). 75 Pa. C.S. § 3326(d)(1) requires proper notice of traffic-control devices by placing these objects to notify motorists that increased penalties apply for moving violations in active work zones. In addition, 75 Pa. C.S. § 3326(d)(1) says that official traffic control devices shall be appropriately placed to notify motorists that increased penalties apply for moving violations in highway safety corridors. 75 Pa. C.S. § 3326(e) states that official traffic-control devices shall be erected at the beginning of an active work zone with a white strobe light or other unique, illuminated light or device. The light or device shall indicate that workers are present in the active work zone. Id. The light or device shall be turned off if no workers are present. Id. An official traffic-control device shall be erected immediately at the end of the active work zone indicating that workers are no longer present. Id.

According to 67 Pa. Code § 212.419(d), the “Active Work Zone When Flashing” Sign (W21-19) shall be erected as close as practical to the beginning of the active work zone. In addition, 67 Pa. Code § 212.419(d)(3) states that the W21-19 signs shall be installed on temporary sign posts or on Type III barricades, and a white Type B high-intensity flashing light must be attached to the upper portion of each W21-19 sign. The light shall be activated only when workers are present, and deactivated when workers are not anticipated during the next 60 minutes. Lastly, 67 Pa. Code § 212.419(e) concludes that the “End Active Work Zone Sign” (W21-20) shall be erected immediately at the end of each active work zone, except this sign is not necessary if either the “End Road Work” Sign (G20-2a) or the “End Work Area Sign” (G20-3) is installed at the end of the active work zone. The Pennsylvania Department of Transportation’s website summaries the requirements of an active work zone: 

“Active work zones must be designated as such to notify motorists when they enter and leave the work zone. A white flashing light attached to the ‘Active Work Zone When Flashing’ sign will indicate an active work zone. The flashing light will only be activated when workers are present and turned off when workers are not present.” Pennsylvania Department of Transportation, Work Zone.

This only adds to the appearance that the work zone must be active to require the reduced speed. However, that is not the law. As there are areas termed “work zones” that require the posted reduced speed limits to be followed and there is law that allows Penn DOT to post a reduced speed limit regardless if it is an active work zone or not.

The term “work zone” is defined as “The area of a highway where construction, maintenance or utility work activities are being conducted which is properly signed as a work zone in accordance with regulations of the Department of Transportation.” 75 Pa. C.S.A. § 102. Motorists are required to exercise special caution in driving in construction and maintenance areas, and there are often reduced speed limits that are temporarily in place during such construction. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 7:7 (2016–2017 ed.)  While driving through work zones, drivers are required to exercise more than ordinary caution in the operation of vehicles. Brenton v. Colbert, 157 A. 619, 620 (Pa. 1931). In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.).

A Pennsylvania court held that classifying a work zone as not active at the time of vehicle stop simply because there were no workers in the posted 40 mph construction zone through which the defendant was speeding was too narrow of an of interpretation. Com. v. Reid, No. CP-36-CR-0003038-2013, 2015 WL 7299802 at *3 (Ct. Com. Pl April 8, 2015). In addition, although there were no workers between the mileposts where the vehicle was pulled over for speeding, there was workers on the road further west of that location. Id. The court in this case held that based upon the facts that the posted reduced speed limit of 40 mph and the proximity to active workers in the construction zone, it was found that the defendant was driving in an active work zone. Id. Something to note about this case is that it is a memorandum decision. According to Pennsylvania Superior Court Internal Operating Procedure (IOP) § 65.37(A): “An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding....” 210 Pa. Code § 65.37.

Analysis of hypothetical situation:

Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. In addition, a state trooper observed the reduced speed limit as 45 as well. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. 

While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive.

Here are the two statutes that govern speeding in PA. I cite 336.

75 Pa.C.S.A. § 3361

§ 3361. Driving vehicle at safe speed

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S.A. § 3362

§ 3362. Maximum speed limits

(a) General rule.--Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this section or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:

(1) 35 miles per hour in any urban district.

(1.1) 65 miles per hour or 70 miles per hour for all vehicles on freeways where the department has posted a 65-miles-per-hour or 70-miles-per-hour speed limit.

(1.2) 25 miles per hour in a residence district if the highway:

(i) is not a numbered traffic route; and

(ii) is functionally classified by the department as a local highway.

(2) 55 miles per hour in other locations.

(3) Any other maximum speed limit established under this subchapter.

(b) Posting of speed limit:

(1) No maximum speed limit established under subsection (a)(1), (1.2) or (3) shall be effective unless posted on fixed or variable official traffic-control devices erected in accordance with regulations adopted by the department which regulations shall require posting at the beginning and end of each speed zone and at intervals not greater than one-half mile.

(2) No maximum speed limit established under subsection (a)(1.1) shall be effective unless posted on fixed or variable official traffic-control devices erected after each interchange on the portion of highway on which the speed limit is in effect and wherever else the department shall determine.

(c) Penalty:

(1) Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of:

(i) $42.50 for violating a maximum speed limit of 65 miles per hour or higher; or

(ii) $35 for violating any other maximum speed limit.

(2) Any person exceeding the maximum speed limit by more than five miles per hour shall pay an additional fine of $2 per mile for each mile in excess of five miles per hour over the maximum speed limit.

§ 3363.  Alteration of maximum limits.

On highways under their respective jurisdictions, local authorities subject to section 6109(e) (relating to specific powers of department and local authorities) or the department, upon the basis of an engineering and traffic investigation, may determine that the maximum speed permitted under this subchapter is greater or less than is reasonable and safe under the conditions found to exist upon any such highway or part thereof and establish a reasonable and safe maximum limit. The maximum speed limit may be made effective at all times or at times indicated and may vary for different weather conditions and other factors bearing on safe speeds. No maximum speed greater than 55 miles per hour shall be established under this section except on highways listed in section 3362(a)(1.1) (relating to maximum speed limits), where the maximum speed for all vehicles shall not be greater than 70 miles per hour.

(June 13, 1995, P.L.57, No.9, eff. 30 days; Dec. 21, 1998, P.L.1126, No.151, eff. 60 days; Nov. 25, 2013, P.L.974, No.89, eff. imd.)

Section 75 Pa CSA 102 defines "Department."  The Department of Transportation of the Commonwealth.

2013 Amendment.  See the preamble to Act 89 in the appendix to this title for special provisions relating to legislative findings and declarations.

1995 Amendment.  See section 4 of Act 9 in the appendix to this title for special provisions relating to report on effect of increased speed limit.

§ 3111. Obedience to traffic-control devices

(a) General rule: Unless otherwise directed by a uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic-control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an emergency vehicle in this title.

(a.1) Penalty.--

(1) A person who violates this section commits a summary offense and shall, upon conviction, pay a fine of $150. No costs or surcharges imposed under 42 Pa.C.S. § 1725.1 (relating to costs) or section 6506 (relating to surcharge) shall be assessed or imposed upon a conviction under this section.

(2) Notwithstanding any other provision of law, including 42 Pa.C.S. § 3733(a) (relating to deposits into account), the fine collected under paragraph (1) shall be deposited as follows:

(i) Twenty-five dollars of the fine shall be deposited as provided under 42 Pa.C.S. § 3733(a).

(ii) After deposit of the amount under subparagraph (i), the remaining portion of the fine shall be deposited into the Public Transportation Trust Fund.

(b) Proper position and legibility of device: No provision of this title for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic-control devices are required, the section shall be effective even though no devices are erected or in place.

(c) Presumption of authorized placement: Whenever official traffic-control devices are placed or held in position approximately conforming to the requirements of this title, the devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence.

(d) Presumption of proper devices.--Any official traffic-control device placed or held pursuant to the provisions of this title and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this title, unless the contrary shall be established by competent evidence.

Both 75 Pa.C.S.A. § 3111(a) and 75 Pa.C.S.A. § 3111(c) could be relevant to our analysis. Section 3111(a) states the general rule that drivers shall obey any applicable official traffic-control device. According to 75 Pa.C.S.A. § 102 “official traffic-control devices” are defined as “Signs, signals, markings and devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.”. In addition, 75 Pa.C.S.A. § 6122 states that “The department on State-designated highways and local authorities on any highway within their boundaries may erect official traffic-control devices…”. Thus, Penn DOT had the authority to erect that sign. And since 75 Pa.C.S.A. § 3111(c) says that the devices shall be presumed to have been placed by the official act or direction of lawful authority, we can presume that Penn DOT placed the sign there and, as stated above, Penn DOT has the proper authority to place the sign. Thus, making that speed limit the valid rate which drivers should obey under the general rule of § 3111(a).

75 Pa.C.S.A. § 3111 was utilized in in Commonwealth v. Gernsheimer, 419, A.2d 528 (Pa. Super. 1980) to establish that a reduced speed limit was valid despite it being lower than what was prescribed by75 Pa.C.S.A. § 3362 without a verifying engineering report. In that case the defendant had been found guilty of operating his automobile at a speed of sixty (60) miles per hour in a speed zone, marked by traffic-control signs, which established the maximum allowable speed at forty-five (45) miles per hour in violation of 75 Pa.C.S.A. § 3362(a)(3). He appealed alleging that a speed zone in which the maximum speed is set at less than fifty-five (55) miles per hour under § 3362(a)(3) is unlawful unless such a speed zone is established on the basis of an engineering and traffic investigation citing 75 Pa.C.S.A. § 3363 for this proposition. 75 Pa.C.S.A. § 3111(c) provides for the presumption that official traffic-control devices, such as a sign establishing a 45 mile per hour speed limit, are validly placed by an official act or direction or lawful authority. It is uncontested that the speed limit signs were official signs and that they were posted so as to have been readily observable by the motoring public. The Commonwealth was, therefore, entitled to the presumption that they were lawfully authorized. In addition, Pa.C.S.A. § 3111(a) gives deference to any applicable official traffic control devices displayed by stating that the general rule is that drivers shall obey the instructions of these devices.

Analysis of hypothetical situation

Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances.Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. 

While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive.

Finally, a review of the identified statues allows us to argue that unless the posted speed limit signs are not covered while in active, it is a work zone for the safety of the traveling public. Regardless if there is active construction going on and Penn DOT has the right an authority to post the speed limit to a speed that it feels is warranted under the demographics of the work zone in question.

In short, there is an abundance of support that shows the posted speed limit will apply in a work zone, regardless if it is active work zone at the time of the incident.

Image courtesy of Unsplash.

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