Chester L. RIGSBY, Adm'r of the Estate of Kathryn M. Kusza, Deceased, et al., Appellants, v. BRIGHTON ENGINEERING COMPANY, Appellee, 464 S.W.2d 279

STEINFELD, Judge. The appellee, Brighton Engineering Company (hereinafter Brighton), was the engineering consultant to the Kentucky Department of Highways in the design of the Bluegrass Parkway. At a point where U.S. Highway 150 crosses over that parkway in Nelson County, Brighton designed bridge piers, one of which was located 11 feet 2 inches north of the northernmost extremity of the westbound traveling lane. That pier was erected according to the design plan. On July 16, 1966, Mr. and Mrs. Lewis J.

Kusza, Jr. and their three children were proceeding in that lane in their family automobile when for some unexplained reason it left the traveled portion of the parkway, crossed the emergency stopping lane and collided head-on with the concrete pier just mentioned. It is uncertain as to whether the automobile was being driven by Mr. or Mrs. Kusza. All five occupants of the car were killed. Appellant, Rigsby, was appointed administrator of the estates of Mr. Kusza and the three children. He brought suit against ap-pellee, Brighton, the estate of Mrs. Kusza and against other parties.

The action against Brighton was predicated on the claim that “ * * * Brighton was negligent in the exercise of professional skill in consulting, planning, design, supervision and construction of said toll road in reference to its duty to the traveling public, including” the plaintiffs in this action. The specific issue was that it had failed to recommend that a guardrail be erected to prevent motor vehicles from colliding with the bridge pier. The suit against the estate of Mrs.

Kusza was settled and dismissed “ * * * without prejudice to the rights of * * * Rigsby as administrator * * * to proceed * * * against Brighton * * * ” and certain other defendants. A

summary judgment dismissing the action as to all defendants was entered. The administrator appeals only as to Brighton. We affirm. In granting

summary judgment dismissing as to Brighton the trial court reasoned that the sole cause of the accident was the negligence of the driver of the vehicle and that Brighton was not negligent in failing to specify or recommend that a guardrail be placed around or adjacent to the bridge pier. In support of its motion for a

summary judgment the movant filed affidavits of the driver and occupant of a vehicle which was traveling behind the Kusza car in which the affiants stated that the highway at that point was straight and that the two cars had come over the top of a rise from which the overpass was visible for at least a quarter of a mile; that when the Kusza car was approximately 200 feet ahead of affiant’s automobile it “ * * * started a very gradual angle back toward the outside southbound traveling lane * * * toward the right hand side of the road (when) it was at a distance of approximately 200 yards from the overpass.” These affiants also stated that the gradual turning angle to the right never changed and that it continued directly toward the concrete pier until the auto collided with it.

Other affidavits were filed which Brighton contends showed that it had no “ * * latitude, responsibility or discretion in * * * ” recommending “ * * * the installation of metallic guardrails or barriers around this and similar structural features.” One of these was the affidavit of the assistant project management engineer of the Kentucky Department of Highways.

He stated that the design criteria in effect at the time Brighton prepared its plans “ * * did not require the installation of guardrails around bridge piers; (that) * * * Engineers, both consulting and section, who pre- ' pare plans for the construction of highways for the Department of Highways of the Commonwealth of Kentucky are required to comply with the standard drawings and design criteria furnished to them by the Department of Highways. Such is true with respect to the location of bridge piers and guardrails.

They have no discretion to alter, change or deviate therefrom in any material respect.” To counter, the administrator filed an affidavit of a respected civil engineer with excellent qualifications in which he stated that advising, recommending and designing installation of guardrails at this point was reasonably necessary “* * * to protect the traveling public from the danger of collision with bridge piers located as close to the traveled portion of the highway as * * * ” the one with which the Kusza car collided.

He also stated that the drawings should have incorporated “ * * * the safety features set forth in ‘geometric designed standards for federal aid — secondary, primary and urban projects’, approved February 18, 1963 * * * He said that in “ * * * affiant’s opinion, based on scientific principles, that had pier number 90.125 H G8 been properly guarded with a guardrail as recommended by the American Association of State Highway Officials * * *, the guardrail would have safely deflected the car outward at the same angle as the angle of approach with dented fenders and body panels and no serious injury to its occupants.” The affidavits filed by the administrator to resist the motion for

summary judgment did not respond to the statement that the design criteria adopted by the Commonwealth and its practices did not permit any deviation. In appellant’s brief counsel states: “Appellee Brighton Engineering Company was the consulting engineer to the Kentucky Department of Highways in the design of the entire Bluegrass Parkway.

Brighton specified in its engineering drawings that no guard-rail (sic) should be placed adjacent to or around the particular bridge pier which was struck by the Kusza automobile, because the design standards and criteria of the Department of Highways specified that none should be located adjacent to or around that bridge pier.” The Commonwealth, Department of Highways has a staff of engineers with wide experience and expertise in the design and construction of highways. It had adopted criteria which were binding upon Brighton.

It appears a recommendation that guardrails be installed at this point would have been futile as well as contrary to the directions of the Commonwealth. Under these circumstances it cannot be said that Brighton’s failure to recommend guardrails was negligent. Hunt-Forbes Construction Co. v. Robinson, 227 Ky. 138, 12 S.W.2d 303 (1928); Combs v. Codell Construction Co., 244 Ky. 772, 52 S.W.2d 719 (1932). Cf. Sherman v. Miller Construction Co., 90 Ind.App. 462, 158 N.E. 255 (1927), and Smith v. Goff, Okl., 325 P.2d 1061 (1958). The judgment is affirmed. HILL, C. J., and MILLIKEN and PAL-MORE, JJ., concur.

NEIKIRK, OSBORNE and REED, JJ., concur in the result only. A separate concurring opinion has been issued by REED, J., concurred in by NEI-KIRK and OSBORNE, JJ.