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Paving the way for a road hazard case: government agencies and private companies are rushing to build new roads to handle ever-increasing traffic, and safety concerns are being left in the dust. But plaintiff lawyers can win justice for their clients.

On April 29, 2001, supermodel Niki Taylor was almost killed when the car she was traveling in left the roadway and struck a utility pole. Because of her celebrity, Taylor's tragedy made national news. Yet in all the media coverage devoted to the collision, no story addressed whether the utility pole was properly positioned or whether it should have been protected by a guardrail or crash cushion.

Probably the reporters simply didn't know to ask. Most people don't know that about 12,000 people die each year from injuries caused by vehicles crashing into fixed objects. (1) And this is just one type of accident that can result from defective roadway and roadside design and maintenance. Unfortunately, little is being done to address these problems. (2)

Instead, government agencies and private developers are scrambling to build more roads to handle ever-increasing numbers of motorists. The more that new roads are built, the more that government budgets are strained, leaving less money to maintain existing roads.

Lack of maintenance is not the only problem. Engineers and construction crews, pushed to move quickly from project to project, sometimes don't comply with standards governing roadway and roadside design. As the numbers show, the results can be disastrous.

Cases alleging defective or negligent roadway and roadside design and maintenance are often complicated, costly, and difficult. But with skill and perseverance, plaintiff lawyers can secure fair and reasonable compensation for their clients.

Standards and experts

One of the first things you should do in preparing to file suit is get copies of any relevant standards or guidelines and read them carefully. The American Association of State Highway and Transportation Officials (AASHTO) is the nation's primary publisher of roadway and roadside design policies and guidelines. Most states base their highway design regulations on the many AASHTO books and reports published over the last 50 years. (3)

When the issue is signage, signaling, or pavement markings, the publication to consult is the Manual on Uniform Traffic Control Devices (MUTCD), published by the Federal Highway Administration (FHA). This manual also serves as the model for most states.

To establish that a defendant owed your client a duty of care, you can use these documents as evidence of industry practice. But be prepared: Defendants often are quick to argue that the publications are mere guidelines and do not carry the same weight as standards.

In fact, each of the publications contains a disclaimer stating that the policies and procedures described in the text are not intended to be used as standards or to impose legal liability. Nonetheless, because AASHTO and the FHA are the recognized industry authorities, their publications can be persuasive in roadway hazard cases.

Defendants also routinely allege that they are obligated to meet AASHTO or state highway-design standards only for newly constructed or upgraded--as opposed to merely resurfaced--roads. Counter this argument by pointing to passages in the association's publications that encourage upgrading roadway and roadside features. (4) These extensive discussions, which highlight the importance of maintenance, can help defeat a claim that the guidelines and standards pertain only to newly designed roads.

Also examine the defendant's own policies and procedures. For example, in a Federal Tort Claims Act (FTCA) case involving a crash on an Army installation, you should thoroughly research relevant Army regulations, Department of Defense publications, and local installation supplements. Often, these publications not only incorporate AASHTO guidelines and the MUTCD, they may also impose higher duties on the defendant. (5)

Finally, review your state's transportation code for additional evidence of the duty owed to your client. In some states, statutes prohibit activities like depositing debris or injurious material on the roadway. (6) You may be able to use this as the basis for an allegation of negligence per se.

The next step in preparing your client's case is finding the right expert or experts. Because one case can present many different design and maintenance issues, you should retain either an expert who is qualified to testify about every facet of the case, or a combination of experts who can testify to matters within their expertise. For example, an accident reconstructionist and a highway design expert can together effectively tell the story of how a driver reacted to a hazard and how the hazard caused the crash.

Finding a highway design expert is always a challenge. Many of the country's top experts in this field regularly work with or are retained by state departments of transportation. Having served in these roles, they are likely to be either unwilling or unable to assist plaintiffs. Verdict reports, fellow trial lawyers, and AASHTO publications can be useful sources in identifying qualified experts.

When interviewing potential experts, keep in mind that these cases involve highly technical issues. Therefore, look for people who have good credentials and can simplify the issues and explain them in plain language to a judge or jury.

Common defenses

The high cost of prosecuting roadway hazard cases makes it extremely important to consider all possible defenses when evaluating the feasibility of a particular claim. Because these cases are often filed against government entities, sovereign immunity is always a concern.

The FTCA and most state tort claims acts provide for a limited waiver of sovereign immunity under certain circumstances. However, if an act or omission is a "discretionary function" involving a "public policy consideration," the waiver does not apply. (7)

Governments have often been successful in defending a negligent act or omission by claiming that it was a "decision" and therefore protected by the discretionary-function exception. (8) The best way to avoid this fate is to find statutes, regulations, or industry guidelines that require the defendant either to do or not do the act in question. If the regulation's or statute's language is unequivocal, you can argue that the defendant had no discretion.

Even if you cannot find such a regulation, you can still avoid immunity. If the defendant's act or omission is deemed discretionary, you might be able to successfully argue that the decision did not involve any public policy considerations, but rather was a decision made at a low level by someone concerned with only operational issues. Unfortunately, case law is far from clear on what constitutes a "discretionary function" or a "public policy consideration," so the outcome of an argument like this is unpredictable.

If a private defendant is involved, as one often is in construction zone cases, the defendant will probably argue that because it contracted with the state for the project and was acting on the government's behalf, it is entitled to the same protections as the state, including immunity from tort actions. (9)

Early in the case, research your state's law on this subject and tailor your discovery accordingly. For example, be sure to obtain all construction contracts, plans, and specifications, including all amendments, change orders, or supplements. Also, get any correspondence between the state and the contractor regarding the project.

Many states have recreational-use statutes that protect landowners (public and private) from tort claims by parties who have been given permission to use the land for recreational purposes. (10) These statutes can cover activities as ordinary as pleasure driving, and they often require a plaintiff to prove gross negligence in order to recover.

Some state highway-design regulations create separate standards for different types of roads. For example, one set of standards might apply to urban roads, another to rural roads. (11) The classifications are often divided further, with standards differing according to a road's purpose. Main arteries with high traffic volume usually must meet more stringent standards than local streets with minimal traffic.

Defendants will often argue that a less stringent standard should apply to the road in question. To prepare to counter this argument, find out the road's high average daily traffic (ADT). A road's ADT may have been calculated already by state or local transportation officials and, if not, an independent traffic engineer can do so. This may show that the volume of traffic justifies a different classification and also a higher standard.

Another defense argument that often surfaces in road hazard cases goes like this: Because the hazard was never the cause of an accident before, it must not be dangerous, and even if it is, the crash could not have been foreseen and prevented.

While most people can see the absurdity of this argument, some jurors are persuaded by it. Therefore, address this tactic early--in voir dire--to identify and excuse the prospective jurors who might be sympathetic to this argument.

For example, you could say, "Some people may think that if no other vehicles have ever hit this tree before, it clearly is not a dangerous condition. Do you agree with that?" Depending on the response, you might follow up with, "So we should wait until someone is injured or killed by this tree before we require the state to remove it?"

Another way to counter this argument is to introduce evidence of similar accidents that occurred close to the accident site, and then argue that this evidence suggests that the defendant should have eliminated the hazard.

AASHTO and some state regulations provide detailed formulas that allow traffic engineers to determine whether a particular remedy for an identified hazard is economically feasible. (12) Defendants typically argue that if they adopted a remedy suggested by the plaintiff for all their roads, they would go broke.

To counter this, make sure your expert has calculated the economic feasibility of the remedy you claim the defendant failed to provide. You can then argue that the only relevant issue is the economic feasibility of that remedy at the site where your client was injured, not how much it would cost the defendant to employ the remedy across its entire road system.

Be warned: Using this strategy can be dangerous. Ideally, you will be able to get information about previous accidents involving the hazard in question at the site where your client's crash occurred. If not, you will have to argue that the defendant had notice that its act or omission could create a dangerous condition because it knew of previous accidents involving the same dangerous condition at other locations.

Making this argument after you have claimed that the feasibility-of-a-remedy defense should be limited to the site where the plaintiff's crash occurred can appear inconsistent to the judge or jury. Be prepared to explain how your client can make both arguments and be right each time.

Point out that these are entirely different issues. Previous accidents show not only that the condition is dangerous but also that the defendant knew or should have known it. The feasibility of employing a particular remedy across an entire road network has no relevance to the feasibility (or reasonableness) of employing it at the site where your client was injured.

Roadside hazards

Roadside design is a potential issue in every case involving a vehicle that has left the roadway during an accident. If you represent a plaintiff who has been injured in this type of crash, you need to be familiar with the following roadside design concepts:

Clear zone. This is the land along each side of the roadway provided as a recovery area for errant vehicles. Ideally, it should be free from obstacles. Under AASHTO's most recent formula, the proper width of the clear zone depends on the roadway's speed limit, roadside slope, and average daily traffic. (13)

In general, the higher a road's speed limit, slope, and average daily traffic, the wider the clear zone must be. The zone is measured from the edge of the traveled roadway, regardless of the direction of travel.

Calculating an appropriate clear zone does not, however, end with a simple formula. A road's designer should add to a clear zone's width to accommodate curves or severe fill (built-up road) or cut slopes (road that is cut into the side of a hill). Always inspect the crash site to determine whether the clear zone was wide enough, considering all the conditions at the site.

Obstacles. These can be either nontraversable hazards or fixed objects and should be corrected or removed if they are within the minimum clear-zone width. If an obstacle cannot be corrected or removed, then barriers may be warranted.

Be aware, however, that AASHTO and most state regulations discourage using barriers to protect travelers from roadside obstacles. (14) This is because guardrails, especially long ones, sometimes are more dangerous than the fixed object--say, a tree--that they are meant to guard against. A long guardrail, with its large target area, may be more likely to be hit, resulting in injury.

Therefore, it is often better to argue that an obstacle should have been corrected or removed, rather than that a guardrail should have been installed.

Longitudinal barriers and crash cushions. When barriers are appropriate, they should comply with AASHTO and state standards that indicate what type of barrier should be used and when and how a barrier should be installed, maintained, and repaired. (15) A knowledgeable expert can discuss published studies concerning the effectiveness of guardrails and other types of barriers in reducing the likelihood of injury. This testimony can persuade jurors that if the defendant had installed a barrier properly, the plaintiff probably would have survived the crash or suffered less severe injuries.

Inadequate roadside maintenance is also a common problem. AASHTO and most states have published guidelines and standards covering roadside maintenance projects like vegetation removal, drainage upkeep, and shoulder grading. (16) The publications typically establish elaborate inspection and maintenance programs and provide standards for how the work should be accomplished.

If a defendant does not routinely mow a road's shoulders and trim the vegetation, trees can grow close to the road, becoming dangerous fixed objects, and signs can be obscured by foliage. If shoulders are not routinely graded, hazardous edge drops or "washboarding" can develop.

As discussed in the AASHTO and state standards, the duty to properly maintain the roadside is a continuing one. By showing inadequate maintenance, counsel can overcome an argument that the standards don't apply because they were not in effect when the road was built.

Roadway hazards

Roadway design includes the design, construction, and maintenance of the road itself as well as any signage or other markings directing travelers. Litigation involving roadway design issues generally focuses on the following areas of concern:

Improper design. Sometimes a vehicle will leave the road because the road left--or dropped away from--the vehicle. Design flaws can appear in many different forms, (17) including

* horizontal curves that are too sharp for the posted speed limit or have inadequate banking ("superelevation")

* vertical curves (slopes, dips) that are too extreme, resulting in substandard sight distance

* improper drainage, causing water to collect on the road surface and creating a risk of hydroplaning

* insufficient sight distances around horizontal curves or at intersections and railroad crossings

* pavement with inadequate skid resistance

* entrance ramps that are too short or lack appropriate visibility for freeway and ramp travelers

* shoulder composition with insufficient contrast in color or texture. (18)

Inadequate or incorrect pavement markings. Pavement markings include visual indicators such as lane and curb markings and reflective, raised pavement markers. The MUTCD sets forth specific standards for the type of pavement markings needed under almost any circumstance. (19)

Sometimes the issue is whether the design plan--which would include proposed markings--was correct. At other times, it's whether the correct markings were installed or maintained. Therefore, you must get the design plans during discovery.

The FHA manual states that pavement markings should be legible at all times. Some state roadway design regulations will go even further, by establishing an actual schedule--based on average daily traffic--for repainting a road's pavement markings.

Inadequate or incorrect signs or signals. The MUTCD establishes specific guidelines for sign color, size, reflectorization, illumination, lettering, and placement. (20) Review this as well as your state's regulations to ensure that the signage was appropriate at the crash site.

Signaling is also a highly regulated area. Common problems include traffic lights with improper sequencing or short cycles.

Because these problems can be fixed quickly, you should visit the intersection immediately if incorrect signaling is a potential cause of your client's crash. An expert should take all measurements at the scene to ensure that correct information is obtained and to avoid having someone other than the expert--who will probably be more credible at trial than, say, a law clerk at your firm--becoming a witness in the case.

Roadway maintenance can be as important to your case as roadway design. Pavement that is not routinely inspected and maintained can crack, develop holes, and lose skid resistance. These conditions can cause or contribute to a crash. Sometimes the defendant's act of maintaining or repairing the pavement actually creates the dangerous condition.

Miles to go

Roadway and roadside safety have made significant advances in the last 20 years, partly because of plaintiff lawyers' zealous representation of injured motorists. Although there are more vehicles on our highways than ever before, the fatality rate per 100 million miles of roadway is half what it was 20 years ago. (21)

We're headed in the right direction, but government and industry leaders must continue to improve roadway and roadside design and maintenance to further reduce the number of deaths and injuries. We can help keep the pressure on by properly preparing and presenting our clients' cases.


(1.) C. Paul Scott & Don Ivey, Utility Poles and Roadside Safety, The Road to Responsibility, Paper Presented at the 80th Annual Meeting of the Transportation Research Board in Washington, D.C. (Jan. 2001).

(2.) Id.

(3.) For AASHTO's publication catalog, go to or, or write to 444 North Capitol St., N.W., Ste. 249, Washington, DC 20001.

(4.) See, e.g., AM. ASS'N STATE HIGHWAY & TRANSP. OFFICIALS, GUIDE FOR SELECTING, LOCATING, AND DESIGNING TRAFFIC BARRIERS 4 (1977) [hereinafter AASHTO TRAFFIC BARRIER GUIDE] ("The guide will have applications to both new and existing roadways." The guide also provides that "existing highways should be upgraded when feasible to eliminate hazardous conditions that require barrier protection." Id. at 3).

(5.) For example, Army Regulation 420-72 requires that materials and specifications used in roadway maintenance and repair meet federal, state, military, AASHTO, and American Society of Testing and Materials standards. DEP'T OF THE ARMY, ARMY REGULATION 420-72, TRANSPORTATION INFRASTRUCTURE AND DAMS (2000). Agency publications may contain more specific and unequivocal language than the industry standard. For example, Army Technical Manual 5-624 states that brush or shrubs will not be permitted to grow at culvert inlets or outlets. DEP'T OF THE ARMY, TECHNICAL MANUAL 5-624, MAINTENANCE AND REPAIR OF SURFACE AREAS, [paragraph] 6-6b. (Oct. 27, 1995) (emphasis added). AASHTO's general guidance does not provide language that is equally specific or unequivocal.

(6.) E.g., TEX. TRANSP. CODE ANN. [section] 600-001 (Vernon 2001).

(7.) See United States v. Gaubert, 499 U.S. 315, 322 (1991).

(8.) See Jean F. Rydstrom, Annotation, Claims Based on Construction and Maintenance of Public Property as Within Provision of 28 U.S. CA. [section] 2680(A) Excepting from Federal Tort Claims Act Claims Involving "Discretionary Function or Duty," 37 A.L.R. FED. 537 (1978); Gaubert, 499 U.S. 315.

(9.) See A.E. Korpela, Annotation, Right of Contractor with Federal State, or Local Public Body to Latter's Immunity From Tort Liability, 9 A.L.R.3d 382 (1996).

(10.) See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. [section] 75.001 (Vernon 2001); see also Robin Cheryl Miller, Annotation, Effect of Statute Limiting Landowner's Liability for Personal Injury to Recreational User, 47 A.L.R. 4th 262 (1986).



(13.) Id.

(14.) Id.; AASHTO TRAFFIC BARRIER GUIDE supra note 4, at 4.

(15.) AASHTO TRAFFIC BARRIER GUIDE, supra note 4, at 4.





(20.) Id.

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Author:Christensen, Dan
Geographic Code:1USA
Date:Jan 1, 2002
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