Crashes caused by the chaos of road construction changes, lanes that suddenly end, poorly placed signs with no warning and general terrible design are completely preventable and that makes them all the more tragic. It is one thing when a driver errs in decision making for a moment and causes a crash. It is quite another when a construction crew ignores the industry standards on design or sign placement and people end up getting hurt or dying because of it.
So, what are the key elements to a case like this going forward? How do you know a viable one from one that has no chance legally?
Here are some common types:
Guardrail design and placement.
Road shoulders that are too steep or have the wrong material.
the failure to maintain properly functioning traffic signals.
failing to cut back bushes to see a stop sign.
Clogged up drain and culvert systems that lead to standing water on the highway.
Failing to maintain a clear zone of recovery next to the road so that when a driver goes off the road they don’t strike brick mailboxes, trees, etc.
Failure to follow the Manual on Uniform Traffic Control Devices (the MUTCD) when laying out signs for roadway construction.
There are a couple of essential steps once you have identified the type of negligence above:
Get to the scene ASAP and take photos and measurements, preferably with an expert roadway engineer. Engineers can provider expert testimony about failures in design or maintenance that led to the crash that are not obvious.
Send Open Records Requests to the controlling government authority and get all of the plans for the roadway.
Make sure your lawyer has a working familiarity with the key treatises in the field such as; the AASHTO highway design text, the GDOT Standards specs, the GDOT Manual of Guidance and Construction Manual.
Now that you have locked the scene down and hired an expert to focus on what went wrong, you need to decide who was in control and created the problem. It is far easier to pursue private contractors than governmental entities as you will see in a moment.
The State DOT
The state is protected from most lawsuits and to proceed you must go under the State Tort Claims Act. OCGA 50-21-20. The State is immune from suit over:
Highway Design: the exception protects them if the project was designed within accepted standards.
Inspection Exception: You cannot sue the State for failing to make certain inspections for safety that it was supposed to make. This does not preclude a negligent maintenance claim.
Discretionary Decisions: The State cannot be sued if the employees were using their discretion rather than following a bright-line rule. Basically, if the rule is “shall” do it and they don’t, you have a case. If it is “may”, you often lose. These cases focus heavily on the distinction between Policy and Design/Operational decisions.
Remember there are strict Ante Litem Notice requirements for all governmental entities; 6 months for cities, one year for County and State.
Private roadway contractors can be sued for negligence in design, implementation, and maintenance but beware the acceptance doctrine that says once the government accepts the work, then the contractor is immune from suit. There are a few rare situations where we can get around this, but it is a challenge.
Is it a Case?
These cases are very expensive because of all of the expert costs; upwards of $80,000 at least. Because of this, law firms cannot afford to pursue these cases where the injuries are anything less than severe. Remember that damages against the State are capped at $1,000,000.
The most important thing to remember is there are ticky tacky defects in roads but unless its a big deal to a jury, you won’t win. A road being 1% too steep is not going to win a verdict in a case where the plaintiff was also speeding. This brings up an important point. The plaintiff must be fairly innocent in the whole case to prevail. That means no drunk drivers or people going at absolutely reckless speeds.
We handled the death of a woman who turned left out of her church at an intersection that the City of Douglasville had changed so that she could not see oncoming traffic. She passed away from her injuries. It took 2 years and multiple expert depositions but the reality was, it was a terrible roadway design.
We are handling the death of a young college student who went off the road an hit a stone fixture that was not supposed to be within 10 feet of the roadway in an area controlled by the City. That lawsuit is still progressing but we have already made a substantial recovery for the client.