Liability for dead man's curve: was your client's off-road accident caused by simple driver error, or did a roadway design defect contribute to the crash? Public agencies in charge of roadways may be liable if the road is unsafe.

Studies show that 20 percent of all fatal accidents involve single automobiles running off the road. (1) It is easy to write these cases off as examples of driver error, but in many instances, the government agency that designs and maintains the roads must share or shoulder the blame.

These cases are difficult. Not every off-road crash leads to government liability, and investigating a road's engineering and accident history can be expensive. A connective-tissue case, for example, may not warrant the time and expense these cases require. The defendants' recurring theme is driver error, and these cases rarely settle.

Understanding what constitutes a defective roadway will enable you to perform a thorough case analysis and investigation. If you do take a case, you may gain not only fair compensation for your client, but also an improved roadway that will be safer for others--a noble pursuit.

Defining the problem

The singing duo of Jan and Dean popularized the phrase "dead man's curve" in a chart-topping song in 1964. The dead man's curve in the song was along Sunset Boulevard in Los Angeles. Mel Blanc, the voice of Bugs Bunny and hundreds of other cartoon characters, was the most famous victim of this dangerous stretch of road. In 1961, Blanc was driving east on Sunset Boulevard and collided head-on with another car while negotiating the curve. Blanc had to be pried from the wreckage, unconscious. He suffered severe head trauma, a broken pelvis, and two broken legs, and he spent two weeks in a coma.

Years later, in a court proceeding, the city engineer testified that the curve had been the scene of 26 serious accidents in a two-year period. (2) The Los Angeles Board of Public Works approved changes to the banking of that portion of Sunset Boulevard to lessen the danger its steep downhill curve posed. Nearly every American city or town has a dead man's curve--a winding and/or steep stretch of road where accidents have claimed the lives of unknowing drivers and passengers.

The agencies that design and maintain roads and highways have a duty to ensure that they are safe for motorists exercising reasonable care. Inevitably, cars will skid, slide, be cut off, or run off the side of curved roads, and drivers will fall asleep or be distracted and lose control of their vehicles. Government agencies must design roads for such foreseeable events.

Roadways need recovery zones, so that an inattentive driver who goes off the road can return to it, or guardrails to redirect errant vehicles if the fall-off of the land or impediments such as poles or trees make recovery impossible. Road and highway agencies must create curves that can be navigated even if drivers exceed the posted speed limit, and they must bank curves so that even poor drivers can navigate them without falling victim to centrifugal forces. They should provide crash attenuators, such as guardrails or rumble strips or grooves, and give adequate warnings of hazards in the form of signage along the roadway where necessary. If the appropriate agency does not adhere to these design principles, it may be liable.

Overcoming government immunity

You must first determine whether sovereign immunity statutes in your jurisdiction prevent liability. While jurisdictions that completely exempt claims against municipalities are rare, partial immunity is the rule. New York's Weiss v. Fote doctrine is a typical example. (3)

In that case, the state's highest court, as early as the 1960s, established a rule to prevent plaintiff experts from second-guessing city planners. The court held that if a municipality used a design after careful study and pursuant to a governmental power, the design could not be challenged. If the study was flawed, or if subsequent accidents at the scene indicated it should be studied again, the plaintiff could bring a claim. But if the study was reasonable, the road's design could not be questioned even if it did not comply with current engineering principles and industry standards. The Weiss rule is still followed in New York today.

Under this doctrine, a municipality cannot be faulted for failing to place a stop sign at an intersection but may be responsible if it put in a sign and failed to maintain it. In most cases, failing to install a guardrail at a curve would not be subject to judicial review, but removing it for repairs and not replacing it within a reasonable time could lead to liability. In New York, failing to upgrade roadways with new design standards or materials that have been shown to be better and safer is not negligence, but building a new road of substandard design or materials is actionable. In some other jurisdictions, a municipality cannot successfully claim immunity where essential specifications are omitted, or where the roadway is negligently constructed or repaired. (4) Immunity may also be waived if not claimed before the conclusion of trial. (5)

Sometimes, a statute enacted in the state where the accident occurred helps the plaintiff overcome government immunity. However, some of these statutes may limit or exclude certain claims based on roadway design defects. Therefore, the attorney must examine the tort claim statutes in the jurisdiction in question, as well as the relevant case law. For example, in Colorado, a state statute has permitted claims to be brought where the municipality's conduct is willful and wanton. (6) In Minnesota, municipalities may not be immune from suits where relatively inexpensive remedies, which do not require a policy decision, could have prevented the accident. (7)

Handling a roadway design case

If you think your client's single-car collision may be a road-defect case, the wrecked car must be secured, and an engineer must inspect it to determine the speed at which it left the road. An engineer, skilled in roadway design, must carefully examine the scene to determine the angle at which the car left the road. Skid marks and yaw marks (made by the vehicle's lateral movement) must be photographed immediately. Often, if the case involves serious injuries, the local police will have gathered this data.

Determine the exact location and size of warning signs. The state department of highways or roads often takes periodic photos of the roads from

a vehicle at 10-foot intervals. Most county offices will provide, at little expense, topographical maps of the region showing elevation details. Highway or building departments will have as-built plans for each constructed roadway, and the bidding documents for the original building or rebuilding of the road often contain invaluable information. These photos and maps may reveal flaws in the design or the roadway, or in the roadway's improper construction or maintenance.

Defective guardrails

Many off-road cases involve defective guardrails. Guardrails are installed to protect drivers from dangerous curves, and they serve a dual purpose: to delineate the course of the road and to redirect a wayward vehicle back onto the pavement before it hits a tree or wall or goes over a cliff. Case law in most states has clearly established that highway agencies have a duty to erect and maintain guardrails or barriers to prevent motorists from injuring themselves and others where there are dangerous conditions at or near the highway, such as a sharp curve adjacent to an immovable object.

A curve requires a guardrail if a vehicle foreseeably could leave the road and there is insufficient room or terrain for it to recover. Roadside hazards such as large trees, headwalls, utility poles, lamp-posts, or traffic signs often pose this type of danger. A drop-off at the side of the road may also make it impossible for a motorist to recover. Guardrails also are required on all elevated roadways and bridges and must be placed around every support of overhead roadways. (8)

If the road where your client was injured needed a guardrail, carefully measure the proximity of stationary objects in the area, the width of a recovery zone (if one exists), and the drop-off ratio between the road and the roadside.

When investigating an accident, the critical engineering factors are the speed and weight of the vehicle and the angle of impact with the guardrail. A speeding truck that hits a guardrail at a 90-degree angle will go through it, even if it is a state-of-the-art concrete Jersey barrier. On the other hand, if the impact is at a slight angle, a Jersey barrier should redirect a fully loaded truck, even at speeds exceeding 50 mph. The Jersey barrier is wider at the base to create a concave surface that directs vehicles back to the road. Before Jersey barriers were used, chains, square rails, and W-beams (named for their shape) served as guardrails.

While governments cannot afford to convert every existing guardrail into a Jersey barrier, you should look into some common defects in guardrail construction. A guardrail will fail to redirect a vehicle if its posts are too far apart, for example. Many guardrails fail to meet modern safety performance criteria for post spacing--6.25 feet between posts--which was established around 1966. (9) Many older guardrails have 12.5-foot post spacing. (10)

The height of the crossbeam is another potential engineering problem. If the beam is too low, the rail cannot absorb enough energy from the impact to keep the car from going off the road. Before 1966, guardrails were built with crossbeam heights of 24 inches or lower, and the standard since then has been 27 inches. (11)

Another common problem is that a vehicle's occupants can be impaled when the vehicle strikes the end of a guardrail if the guardrail lacks proper "end treatments." Agencies began installing guardrails with crashworthy end treatments around 1970. An end treatment is designed to protect against a direct impact with the ends of the guardrail. Wherever the guardrail ends, something needs to provide sufficient anchorage for the rest of the guardrail; it must be safe for vehicles that hit the end and must redirect them onto the roadway.

Older guardrails typically lack end treatments, and many guardrails with untreated ends have been installed since then. (12) If a case involves a direct impact with the end of a guardrail, you should immediately determine whether the guardrail had an end rail to safely direct the vehicle back onto the roadway.

Many older guardrails were installed using rail that was not long enough. This allows cars to run off the road before they reach the guardrail or simply plow through while negotiating the curve, actually sending the vehicle through the guardrail. Newly installed guardrails often rely on American Association of State Highway and Transportation Officials (AASHTO) guidelines, which say the length of guardrail needed to shield a roadside hazard depends on the size of the hazard and its lateral distance from the travel lanes. (13) The AASHTO provides formulas for determining the needed length in the Guide for Selecting, Locating, and Designing Traffic Barriers. (14)

However, many experts still say the AASHTO guidelines use an unsupported and potentially faulty approach. While government officials have complained that meeting these requirements is too costly, some safety engineers say they do not go far enough to protect drivers from dangerous curves. Critics claim the new guardrails are so long that they actually make impacts more severe, rather than slowing down the vehicle and then allowing it to pass the end of the guardrail and move onto the roadside. (15) Guardrails that are too long will cause the vehicle to strike the guardrail, when the vehicle otherwise would not hit anything but would instead run off the road safely.

Some states have recognized the flaws in the AASHTO guidelines and decided to use shorter guardrails--with mixed results. Many appear to be too short to adequately protect motorists. AASHTO engineers have begun to reconsider the method for determining guardrail length, and they agree that public agencies must adopt more comprehensive and logical guidelines.

You should retain a competent roadway engineer to testify about the need for and adequacy of guardrails at curves. Local residents and others who use the road can testify about the condition of the guardrails at the time of the accident and prior accidents. To determine whether the guardrails have been maintained properly, depose local officials about highway inspection and maintenance schedules. Also, evidence of the accident rate at the curve may establish the need for guardrails and show that the highway agency had notice of this need.

Inadequate warning

Public agencies have a duty to exercise reasonable care to warn travelers of highway defects and unsafe areas. An agency that fails to do so may be held liable if someone is injured as a result of this failure. Guided by these general principles, courts consistently have recognized that highway agencies have a duty to erect and maintain adequate signs to warn of dangerous curves. (16)

In most states, whether an agency had a duty to warn at a particular curve is decided on a case-by-case basis. (17) Therefore, relevant state case law and pattern jury instructions will go a long way in helping you decide whether to accept such a case.

Warnings usually include one sign with an arrow showing the general shape of the curve and another on the same post giving an advisory speed limit. Federal Highway Administration standards specify the size, shape, and color of such signs and their location relative to the curve. (18) Many older warning signs do not meet these standards, and if the sign at issue does not, you should document its failure to meet the standards as evidence.

Engineers determine the speed at which a curve can be negotiated safely by using a ball-swing test. A device mounted on the engineer's car records the swing of a suspended ball as the car rounds the curve at various speeds. If your client's claim involves the failure to post warnings of an upcoming curve or to reduce the speed limit on the curve, you should have an engineer perform this test.

A sharp curve on a winding road may not require a warning sign because such roads often have sufficiently low mandatory speed limits. However, a straight road with a sharp curve presents an unusual hazard because drivers become accustomed to the absence of sudden changes in direction. If an unexpected curve lacks a warning sign, the public agency may be liable. Even if a sharp curve on an otherwise straight road has a warning sign, the agency may be liable if the sign is not placed far enough in front of the curve to give a driver sufficient time to slow down and negotiate the curve safely.

Be careful in evaluating failure-to-warn cases: If the agency considered the need for warnings and made a conscious, reasoned decision not to erect them, that decision may be protected under the discretionary authority that the sovereign immunity defense provides. More often than not, the question of signage did not come up during planning or approval, or if it did, the warning signs were rejected capriciously, arbitrarily, or to save money. In such scenarios, the public agency has made no bona fide safety-conscious decision and would not be protected by sovereign immunity principles. (19)

You may also bring a negligence action based on the agency's failure to maintain a sign or other warning device, such as rumble strips or grooves, near dangerous curves. Signs often are knocked over or destroyed by cars. In negligent-maintenance claims, you usually will have to prove that the public agency had notice that the sign had been knocked over or destroyed and had a reasonable amount of time to correct or repair it--unless you can show that the agency caused or created the sign's defect. You can call local officials and ask about highway inspection and maintenance schedules.

Defective banking

A public roadway or highway agency may be liable if the road's banking is defective. Banking refers to the way a road is tilted, compensating for the tendency of centrifugal force to impel a moving vehicle off the outside of a curve. It usually is expressed as the amount of rise per unit of roadway width. A defectively banked road can cause drivers to overcompensate for a curve and lose control of their vehicles. Consider this theory of liability when the car went off the outside of the curve or the driver lost control by oversteering to the inside while trying to avoid going off the road.

Gentle or low-speed curves are generally flat. Other curves are positively or negatively "super-elevated." A properly designed curve is positively super-elevated, meaning it is banked on the outside of the road, so that the outside of the curve is higher than the inside. The degree to which it is banked depends on the degree of curvature, roadway-width, and speed limit. A negatively super-elevated curve--banked on the inside--may be defective, depending on the circumstances, because it can cause a car to go off the road as it tilts toward the outside of the curve. However, it may not be defective if the negatively super-elevated curve was designed for another purpose, such as draining water.

Defective banking also may be the result of the road's aging, which causes the banking to sag or give way altogether. When heavy traffic pounds the pavement for many years, its shape will distort and dips will appear in the road. A curve that was properly banked may become dangerous if it distorts and creates a dip. On a dangerous curve, a dip can cause a driver to jolt in an unexpected direction, sending the car off the roadway or, worse, into oncoming traffic. You maybe able to prove liability if you show that a dip exists and that it has become so pronounced that the curve is dangerous to a reasonable driver.

If the accident may have been caused by improper banking, conduct both a review of the highway agency's plans for the curve and a field check of the actual banking at the accident site to determine whether the curve was built in compliance with the specifications.

Retain an engineer to explain the relationship between banking and other parameters of curve design and to state an opinion about whether the curve was properly super-elevated. Expert opinions on proper banking vary, so be prepared to elicit from your expert the reasons for his or her conclusion and to pointedly cross-examine the opposing expert. Your expert's credibility will be enhanced by frequent reference to authoritative standards such as AASHTO regulations, which engineers use to calculate banking for specific curves.

Every practitioner should obtain a few references used extensively in these cases both inside and outside the courtroom: the AASHTO Maintenance Manual, the Roadside Design Guide, the Traffic Engineering Handbook, and the Manual on Uniform Traffic Control Devices. (20)

The public agencies responsible for designing and maintaining safe roads should be held to that responsibility. If your client's accident involves road design defects, knowing what to look for will help you get fair compensation for him or her--and safer roads for us all.

Notes

(1.) See INSURANCE INST. FOR HIGHWAY SAFETY, FATALITY FACTS 2004: ROADSIDE HAZARDS (2004), available at www.highway safety.org/research/fatality_facts/roadside hazards.html (last visited Dec. 15, 2005).

(2.) David Ferrell, Danger, Glamour Propel Legend of Sunset Boulevard, L.A. TIMES, Nov. 8, 2001, at B1.

(3.) 167 N.E.2d 63 (N.Y. 1960).

(4.) See, e.g., Cameron v. State, 497 P.2d 777 (Cal. 1972) (en banc); Ind. State Highway Comm'n v. Clark, 371 N.E.2d 1323, 1327 (Ind. Ct. App. 1978).

(5.) See, e.g., Hart v. Salt Lake County Comm'n, 945 P.2d 125, 133 (Utah Ct. App. 1997).

(6.) COLO. REV. STAT. [section] 24-10-118(1) (2001).

(7.) Unzen v. City of Duluth, 683 N.W.2d 875, 883 (Minn. Ct. App. 2004).

(8.) See generally AM. ASS'N OF STATE HIGHWAY & TRANSP. OFFICIALS, ROADSIDE DESIGN GUIDE (3d ed. 2002).

(9.) John C. Glennon, Common Topics in Roadway Defect Cases (Jan. 2003), available at www. johncglennon.com/papers.cfm?PaperID=14 (last visited Dec. 15, 2005).

(10.) Id.

(11.) Id.

(12.) Id.

(13.) John C. Glennon, A New Concept for Determining Guardrail Length of Need (Nov. 2002), available at www.johncglennon.com/papers. cfm?PaperID=5 (last visited Dec. 15, 2005).

(14.) Id.; see also AM. ASS'N OF STATE HIGHWAY & TRANSP. OFFICIALS, GUIDE FOR SELECTING, LOCATING, AND DESIGNING TRAFFIC BARRIERS (1977).

(15.) Glennon, supra note 13.

(16.) See D. Duff McKee, Annotation, Establishing Liability of a State or Local Highway Administration, Where Injury Results from the Failure to Place or Maintain Adequate Highway Signs, 31 AM. JUR. PROOF OF FACTS 3D [section] 351 (2005).

(17.) Diane M. Allen, Annotation, Highways: Governmental Duty to Provide Curve Warnings or Markings, 57 A.L.R. 4TH 342 (2005).

(18.) See generally U.S. DEPT. OF TRANSP., FED. HIGHWAY ADMIN., MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES (2003 ed., rev. 1), available at http://mutcd.fhwa.dot. gov/index.htm (last visited Dec. 15, 2005).

(19.) See, e.g., Cameron, 497 P.2d 777.

(20.) AM. ASS'N OF STATE HIGHWAY & TRANSP. OFFICIALS, AASHTO MAINTENANCE MANUAL (1987); AM. ASS'N OF STATE HIGHWAY & TRANSP. OFFICIALS, supra note 8; INST. OF TRANSP. ENG'RS, TRAFFIC ENGINEERING HANDBOOK (James L. Pline ed., 5th ed. 1999); U.S. DEP'T OF TRANSP., supra note 18.