Roadway Design and Maintenance Cases

• Author: Larry Booth/Roger Booth
• Pages: 531-570

17 -1 (Rev. 2, 11/13)

Chapter 17

ROADWAY DESIGN AND

MAINTENANCE CASES

I. ELEMENTS OF CAUSE OF ACTION AND DEFENSES

A. Introduction

§17:01 Government Liability

§17:02 Immunities and Juror Attitudes Make Road Design Cases Difficult

§17:03 Careful Selection and Preparation Is Essential to Success

B. Basic Elements of the Cause of Action

§17:10 In General

§17:11 Dangerous Condition

§17:12 Used With Due Care—Plaintiff’s Negligence

§17:13 Strategy When Plaintiff Exceeded Speed Limit

§17:14 Notice

§17:15 Causation

C. Liability Theories

§17:20 Roadway Design Theories

§17:21 Roadway Maintenance Theories

D. Defenses

§17:30 Design Immunity

§17:31 Blame the Driver

§17:32 Decision Not to Fix Hazard Was Reasonable Under the Circumstances

II. INTERVIEW AND INVESTIGATION

§17:40 Amass as Much Evidence of Government Incompetence or Indifference as Possible

A. Evidence of Prior Crashes

§17:50 Not Technically Required, but. . .

§17:51 Request Highway Patrol Records

§17:52 Knock on Doors and Get Creative

§17:53 If You Come up Empty

B. Investigate All Possible Safety Measures and Interview All Potential Witnesses

§17:60 Safety Measures

§17:61 Interview Witnesses

§17:62 Re-Interview as Case Progresses

Personal Injury Handbook 17-2

III. PLEADINGS

§17:70 Presuit Claim Against Government Entity

§17:71 Form: Complaint

IV. PLAINTIFF’S WRITTEN DISCOVERY

§17:80 Checklist: Areas of Inquiry

§17:81 Form: Requests for Production to Public Entity—Pedestrian Accident

§17:82 Form: Requests for Production to Public Entity—Street Flooding

§17:83 Form: Requests for Production to Public Entity—Intersection Collision

§17:84 Form: Interrogatories to Public Entity

V. DEPOSITIONS

A. Eyewitness Depositions

§17:90 Witnesses Favorable to Plaintiff

§17:91 Witnesses More Favorable to Defense

B. Depositions of Defense Witnesses

§17:100 Explore Defendant’s Decision Making Process and Motives

§17:101 Ask “Why” Questions

§17:102 Ask Whether Same Design or Maintenance Approached Is Used for All Roads

§17:103 Other Common Areas to Cover

C. Plaintiff’s Deposition

§17:110 Prepare Plaintiff for Questions About Specifics of Time, Speed, Distance, etc.

§17:111 Object if Plaintiff Asked for Opinion on Dangerousness of Road

VI. EXPERTS

§17:120 Traffic Engineer

§17:121 Accident Reconstructionist

VII. SUMMARY JUDGMENT

§17:130 Form: Memorandum in Opposition to Defendant’s Summary Judgment Motion

VIII. SETTLEMENT

§17:140 Settlement Strategies

§17:141 Form: Mediation Brief—Hydroplaning on Wet Roadway

IX. TRIAL PREPARATION

§17:150 Focus Groups

§17:151 Themes and Strategies

§17:152 Jury Selection

§17:153 Opening Statement

§17:154 Closing Argument

X. MOTIONS IN LIMINE

§17:160 Form: Opposition to Defendant’s Motion in Limine to Preclude Evidence of Lack of

Street Lighting and Lack of Center Lane Lines

§17:161 Form: Plaintiff’s Motion in Limine to Preclude Defendant From Intimating That

Street Must Have Been “Used With Due Care” for Defendant to Be Liable

XI. TRIAL BRIEFS

§17:170 Form: Plaintiff’s Trial Brief Re: Forseeability of Risk of Injury

§17:171 Form: Plaintiff’s Trial Brief Re: Admissibility of Change of Conditions

§17:172 Form: Plaintiff’s Trial Brief Re: Admissibility of Prior Accidents and Near Accidents

§17:173 Form: Plaintiff’s Trial Brief Re: Jury Instructions on Causation

17-3 Roadway Design and Maintenance Cases §17:12

(Rev. 2, 11/13)

I. ELEMENTS OF CAUSE OF

ACTION AND DEFENSES

A. Introduction

§17:01 Government Liability

There is no more basic service that we expect the

government to provide, in exchange for our tax dol-

lars, than to build and maintain safe roadways. All

of us, to one degree or another, depend on the public

roads virtually every single day of our lives.

As a general rule, a governmental entity can be

held liable, under limited circumstances, if it has

allowed a roadway within its jurisdiction to become

unreasonably dangerous and this dangerous condi-

tion has contributed to an accident. Typically, the

government’s liability can be based on either some

dangerous feature of the roadway’s design or a hazard

created by a failure to properly maintain the roadway.

§17:02 Immunities and Juror Attitudes

Make Road Design Cases

Difficult

These are almost always very difficult cases.

Statutory immunities usually protect the govern-

mental entity from liability in a variety of different

circumstances. Also, jurors’ natural inclination is to

assign fault to one or more drivers and to be reluctant

to force a governmental entity to use taxpayer dollars

to compensate the plaintiff(s).

§17:03 Careful Selection and

Preparation Is Essential to

Success

It is therefore critical that the plaintiff’s attorney

be very careful and selective about whether to take on

dangerous roadway cases. Once a case is undertaken,

it is equally critical that the plaintiff’s attorney pre-

pare for trial with a painstaking attention to detail and

a sharp focus on the types of evidence and arguments

that will increase the chances of a plaintiff’s verdict.

A single negative eyewitness or a simple mistake

by the plaintiff in deposition can irretrievably dam-

age the case. With the right set of facts and the right

approach, however, these cases can result in very

large verdicts.

[§§17:04-17:09 Reserved]

B. Basic Elements of the Cause of

Action

§17:10 In General

Typically, the plaintiff must prove that (1) there

was a dangerous condition on a public roadway, (2)

the governmental entity either created the dangerous

condition or had notice of it, and (3) the dangerous

condition caused the subject accident. [See, e.g., Cal.

Gov. Code §835.] There may be other requirements

as well.

§17:11 Dangerous Condition

Often, “dangerous condition” is defined as a con-

dition that creates a substantial risk of injury when

the roadway is used with due care and in a foresee-

able manner. [See, e.g., Cal. Gov. Code §830.] It is

important to be aware of this standard (if it applies in

your jurisdiction) from the first day that you take on

a dangerous roadway case, because it should shape

how you approach investigation, discovery, and trial

preparation. There is no doubt that the governmental

entity’s lawyers will be preparing their case with this

standard in mind.

§17:12 Used With Due Care—

Plaintiff’s Negligence

Why is this definition so important? Because the

concept of “used with due care” differs significantly

from the negligence standard that applies in most per-

sonal injury cases. Generally, a defendant can be held

liable if its acts or omissions have created a foresee-

able risk of injury.

In products liability cases, for example, the con-

cept of foreseeable misuse is widely accepted. It is

not a complete defense for the defendant product

manufacturer to show that the plaintiff was negligent

in his use of the product, so long as that misuse was

foreseeable. Similarly, the motorist who turns left in

front of oncoming traffic can argue that the oncoming

car was speeding, but that does not absolve her of her

duty to wait to make her turn until traffic is clear.

However, in a governmental liability case, it can

be a complete defense for the defendant to show that

the roadway was only dangerous for motorists who

were failing to exercise due care. For example, if

the plaintiff’s theory is that there should have been a

guardrail on a curvy mountain road, you can bet that