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by Kenneth C. Anthony, Jr.
When I was in my teenage years and had suddenly grown tall and was not
yet used to it, my mother was always quick with the admonition to "Keep
your shoulders up!" I have since gotten used to being an adult, or
perhaps it is just that I do not see my mother as much. I no longer hear
this warning, but over the years have fallen into a class of cases which arise
when local highway departments and road maintenance crews forget this
admonition.
Over the years I have had the fortune or misfortune to try a number of
cases involving low highway shoulders. I came to this by accident.
The first such case I tried I probably would not have taken if it had come in
off the street, but the case had already been filed by another lawyer who, in
mid-case, had been elected a judge. Moreover, the plaintiff was his niece.
Since I try not to say no to judges, when he asked me to take over the case, I
somewhat reluctantly took what turned out to be my first low shoulder case.
In that case, the judge's niece, a bright, young lady who had left her
senior year in college to return home and care for her ailing mother while she
worked at a home for mentally retarded children, was driving down a secondary
road which serves as a beltway around the town where I live. She had
slightly oversteered in a curve and ran off on the right shoulder. When
she attempted to regain the roadway, a dropoff between the pavement and the
shoulder prevented her from doing so. She turned the wheel more sharply
and finally was able to force her van back on to the paved surface.
Unfortunately, when she did, the vehicle went into a skid. She slid across
the road onto the other shoulder. When she turned the wheel back, she slid
back across the roadway, going off the right shoulder again, this time off a
steep embankment. She was thrown from the van, landed on her head and
immediately rendered quadriplegic.
Suit had been filed against the state highway department for failing to
keep the shoulder flush with the road. I was fortunate enough to find a
nearby resident who had written a strong letter to the highway department
before this wreck, warning of the danger and requesting corrective action.
I was also able to uncover a couple of similar wrecks at this same location.
I had a remarkable plaintiff and everything came together for a good result.
Since taking and winning that first low shoulder case, and obtaining a
good verdict, I have taken and been referred a steady string of these cases and
have found that some, but not all, low shoulder cases can be worthwhile.
Low shoulder cases tend to be a very specialized kind of case, and most
are very similar. In fact, low shoulders give rise to a fairly common and
predictable kind of wreck, which usually happens much as the one described
above. A car is
coming down the road and goes off the paved surface onto the shoulder.
This can happen for any number of reasons. The most common is driver
inattention, but failing to correct for a curve, avoiding an oncoming driver who
has crossed the centerline or an animal can also cause a driver to leave the
paved surface. What happens next is fairly predictable. Unless the
driver slows almost to a stop and then remounts the paved surface carefully, the
driver will instead turn the wheels sharply to the left in an effort to regain
the roadway. The driver will continue to turn and force the wheel until
the car does regain the paved surface. What has happened, however, is that
the wheels are now at such an angle that they do not gain traction and the car
begins to skid across the road toward the opposite shoulder. The car will
then go off on that shoulder unless the driver turns the wheel sharply to the
right, in which case the car will go back off the right shoulder, or the car
will strike another vehicle coming in the opposite direction.
Serious injuries tend to result. A head-on collision has either
occurred, with serious injuries all around, or the car has struck a tree, a
ditch or gone down an embankment.
Of course, as has been said, the sequence of events probably began with
driver error, but, in spite of defenses of contributory or comparative
negligence, juries often find for injured drivers in this circumstance, if the
case is properly presented. Injured passengers or occupants of oncoming
vehicles are, naturally, even more successful.
Low shoulders themselves can occur for a number of reasons.
Probably the most common scenario in which low shoulders develop arises from the
resurfacing of the roadway. When a new driving surface is placed over an
old, the driving surface is, of course, raised. This usually results in an
increase in height of one to two inches. After the resurfacing is
completed - ideally, immediately afterward - the dirt shoulder should be graded
(the industry term is "pulled") up so that the shoulder and the
pavement meet evenly and the shoulder slopes away from the pavement gradually.
My experience is that this shoulder grading is rarely done at all following
resurfacing, and, if it is done, it is frequently months after the paving has
been completed.
If the shoulder was even before the resurfacing began, the discrepancy
between the shoulder and the pavement is probably not enough to be dangerous
even if the shoulder is not "pulled" back up after paving.
However, if the shoulder was already low, as is often the case, either from
previous repavings or otherwise, this additional inch or two may be enough to
complete the creation of a hazard.
Low shoulders can arise for other reasons. Large trucks going off
on the shoulder, particularly when the ground is wet, can churn up and dig away
the shoulder, creating a dangerous dropoff almost immediately. Surface
water running down a hill can gradually wash the shoulder away, particularly if
the shoulder has not been grassed.
Highway maintenance crews cannot, obviously, be everywhere at all times,
but for a shoulder to become so low as to become dangerous, a number of these
causes probably have to combine and develop over a long enough period of time to
provide ample notice.
As mentioned, a one or two inch dropoff is probably not sufficiently
dangerous to cause a wreck under any circumstance. Most drivers can
negotiate such a difference with little difficulty. As the height
increases, however, the conditions can exist which can cause a wreck such as
described. Heights of three to four inches can be dangerous.
Anything over four inches is certainly an obstacle.
The shape of the pavement edge is also important. A three or four
inch height may be possible to handle safely if the edge of the pavement itself
is rounded or slanted, providing a smoother transition. On the other hand,
a sharp, vertical edge will cause great difficulty at anything over the one to
two inch level. A steep, high edge is treacherous. All driver's manuals and driver training courses address the
situation where the vehicle has left the roadway. The advice is
consistent, safe and sound. The driver is to slow the car gradually, to a
stop if necessary, and then to drive the car deliberately up onto the pavement
at a low speed and as gentle an angle as possible. Faced with this
accepted textbook advice, of which every driver has to admit knowledge or admit
complete idiocy, how can a driver who has first, run off the roadway, and
second, jerked his car back onto the roadway at high speed, hope to prevail?
There are several reasons this is possible. First, there may have
been some valid reason why the standard advice could not be followed.
There may have been a telephone pole, a sign or a ditch or steep embankment
approaching such that the driver did not have time to slow down and had to
attempt to regain the roadway quickly or risk more serious injuries from
striking an object or hazard. The shoulder itself may have been soft and
appearing to give way under the tires and the driver was afraid to stay on the
shoulder. The driver should be questioned about any such conditions and
reasoning and, particularly if the driver is unable to remember the wreck, the
scene should be examined carefully. Remember that hazards which may seem a
good distance away when standing on the roadside may seem imminent when
traveling at or near the speed limit, particularly in an emergency situation.
This should be done as soon as possible after the wreck, as maintenance
departments are often quick to correct a problem on the site after a
serious wreck has occurred. If you are retained late and weeks or months
have passed since the wreck, question residents along the stretch of roadway,
law enforcement officers and emergency personnel who came to the scene.
Obtain any photographs which were made. If television footage is
available, obtain this from the local station. Any discrepancy between the
way the scene appeared on the day of the wreck and the way it appears now may be
admissible to prove that the hazards existed and that it was feasible to remove
them. If the case appears hopeless, give up. These cases are
hard, and if you do not have an acceptable reason why your driver left the
roadway and a tenable reason why the driver failed to slow down and regain the
paved surface as the manuals prescribe, do not go further with the case.
You are about to go through thousands of dollars for expert witnesses and
demonstrative evidence and several years of discovery, trial and appeal, and you
should not do this if you do not have a case you believe in yourself.
Because of the initially obvious contributory or comparative negligence, and
other defenses which may exist in sovereign immunity statutes, settlement is far
less likely in these than in ordinary wreck cases, so do not take on the case,
even if the damages are immense, if you do not think you can win the case at
trial.
If you decide to pursue the case, once you have talked with your client
at length, interviewed all available witnesses and gathered all the physical
evidence, it is time to get an expert. Care should be taken, as always, in
selecting the expert. The expert must have a background and knowledge in
the area of highway maintenance. An expert in highway design may be able
to address the concepts; all will say that highways are supposed to have smooth,
sloping shoulders. But only an expert with some experience in highway
maintenance will also be able to handle the other excuses which will be raised
in defense - number of miles of roadway to cover, inability to be everywhere at
once, inability to detect every low shoulder as soon as it occurs,
manpower and equipment necessary for pulling shoulders, funding and budget
constraints.
The expert should also have some background and familiarity with proper
sign usage. If the defense is that the problem was known, but either time
or money did not allow the problem to be corrected before the wreck occurred,
the expert should be able to address the interim remedy of placing warning and
low shoulder signs.
He should also be able to make the point that such signs, if placed are
temporary in nature. Oftentimes, particularly after wrecks have occurred
at a location involving low shoulders, the highway department will place signs
warning of the low shoulder but never come back to pull the shoulders. The
expert must be able to insist that signs are a temporary remedy only and do not
obviate the need to complete the work. If the signs have been placed, he
may need to address the related issues of sign placement, frequency and the fact
that signs lose their warning value if motorists have become used to seeing
them.
It is essential to obtain all documents from the highway department.
This will include the original design drawings for the highway, if available,
especially the cross-section, which should show the shoulder elevation and
slope. If resurfacing has occurred, obtain the contract documents.
These will indicate the amount of resurfacing material which was put down and
whether any milling down of the highway occurred before the new surface was put
in place. This information will then allow the calculation of the
"lift" which occurred as a result of the resurfacing and,
consequently, the increased disparity between the pavement and the shoulder.
If resurfacing has occurred, there will also be logs, records, summaries
or reports prepared by the highway department as the resurfacing progressed.
Of course, the contract documents will also reveal whether the contractor
was responsible for pulling the shoulders or whether the highway department
retained this responsibility. If an independent contractor was involved,
the contract documents may allow the contractor to be added as a party.
The highway department should also be able to report whether other wrecks
have occurred at this location or along this stretch of roadway where paving has
occurred. Notice will be helpful, perhaps essential, depending upon any
applicable statutes. By obtaining copies of the reports of these prior
wrecks, you can contact the drivers involved in the wrecks and obtain their
description of how the wreck occurred, whether the shoulder played any part in
the wreck, and the condition of the shoulder at the time. They may have
other witnesses, or even photographs.
The maintenance crews will also have logs and reports. These may
show when the shoulders were last pulled. If no pulling has occurred, the
logs will indicate when the crews were last in this area doing any kind of work.
If they have not been in the area in a long time, they will have trouble
espousing or defending any claim of regular supervision and inspection. If
they have been in the area recently and failed to perform any pulling, you may
prove both notice and negligence with these records.
Having obtained all this information, consider the types of demonstrative
evidence you want to prepare. Photographs and videotapes will, of course,
be helpful. It may be helpful to enlarge key photographs. You may want to create an example of the shoulder you can have
in the courtroom. A plaster cast of the pavement edge may demonstrate the
height and the sheerness of the obstacle with which the driver was presented
when trying to regain the roadway. Having a book, block or brick of the
appropriate height may work as well, and perhaps better, particularly if the
pavement edge is sloped.
Every expert, contractor and highway department employee will almost
certainly admit that the shoulder should meet the roadway evenly and slope away
gradually. Consequently, the defense will take two tacks. First,
they will attack the driver for losing control of the car and then failing to
act prudently in regaining the roadway. Second, they will plead some
combination of lack of notice, lack of manpower and lack of money at to why the
defect had not been repaired. They will also say that the defect did not
exist or was not that bad.
So, in the face of admitted negligence on the part of the driver in
perhaps two instances, difficulty proving that the defect existed, difficulty in
proving that the defect was bad enough to cause this wreck, and a highway
department pleading thousand of miles of roadway to maintain and limited men and
money, why should you take these cases at all? One large advantage you had
not expected is that you will find that juries are almost immediately hostile to
the highway department. All jurors drive or ride, of course, and it
appears that all are openly or secretly, justifiably or not, disgusted with the
way their roads are maintained. Admit it or not, all have also, at one
time or another, lost control of their vehicle through nothing more than
inadvertence and realize that that alone does not make one a bad driver.
If you can establish that the reason your driver lost control was nothing
blameworthy, that there was some justification for not slowing and regaining the
roadway gradually, and the damages are significant, there is no reason not to
take this case. Low shoulders are an omnipresent problem and highway
departments will continue to ignore them unless these cases are taken. So
can be high shoulders, but that is a different article. |
