Keep your Shoulders Up

Posted 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.

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