From Tech Transfer Newsletter, Winter 2007 » printer-friendly

Tort Report: What You Can Do to Protect Your Agency From Tort Liability Claims

By Jeanne Scherer
Assistant Chief Counsel, Caltrans Tort Litigation and Risk Management

A tort is a wrongful act, either intentional or accidental, that injures another. Since most civil litigation arises from torts, saving your agency money and avoiding litigation can be as simple as learning about situations where others were found liable for torts, and avoiding those mistakes.

In the Spring 2006 issue of Tech Transfer we printed a set of hypothetical situations based on actual cases that provided clear and informative examples of ways to prevent liability. The all-new hypotheticals below discuss how to avoid a range of additional problems that can lead to lawsuits. We will run this column occasionally to keep our readers updated on developments in the law.

The Case of the Rolling Log

Gracie Grayling was driving along minding her own business when she struck a large log in her lane. "Egads!" she proclaimed when she saw a tree trimming crew on the slope above the road working on the large eucalyptus trees that lined the highway. Plaintiff sued, claiming the highway was in a dangerous condition caused by the crew's negligence.

"We are not at fault," defended the state. "The trimming operation was being performed in as safe a manner as possible and the accident was unavoidable despite the use of reasonable care." Fortunately, Plaintiff received only minor injuries and was willing to settle for a small amount.

Tort Report: Make sure all appropriate traffic controls are in place and all procedures for controlling downed debris are followed. Be extra careful when working on slopes above road grade.

The Case of the Vertically Challenged Post

Despite a blood alcohol level almost two times the legal limit, plaintiff Sami Nemo got behind the wheel to drive his car home late one night. As he approached an overcrossing on the highway, his car inexplicably veered sharply to the right, crossed all travel lanes and struck a guardrail. The wooden posts supporting the guardrail collapsed backwards, allowing Sami's car to mount and slide along the guardrail, directing it smack dab into the side of the overpass column, killing Sami.

"The State is at fault," claimed plaintiffs, Sami's parents who sued for the wrongful death of their son. "The guardrail failed and did not redirect Sami's car away from the column." "Too short," claimed plaintiffs: investigation revealed the posts were at least a foot shorter that normal and were embedded less than the required depth. Plaintiffs also alleged the soil was not properly compacted at the base of the posts. "Installation in that manner allowed our son's car to get up on the rail instead of being deflected back to the road."

"Sami's intoxication was the sole cause of this accident. He was not a due care driver," Caltrans said. "It was reasonable to install posts in this manner because of a subsurface obstruction and it was not foreseeable that a careful driver would hit the rail at such a sharp angle (30 degrees)." The problem was, Caltrans could not disagree, that the guardrail installation was substandard and not strong enough to withstand the hit. Caltrans settled for about $80,000.

Tort Report: As with many safety devices, height is often an important element and can make the difference between a device that works and one that fails. When in doubt, pull out that tape measure.

The Case of the Star Spangled Banner

Caltrans was sued by an antiwar group that complained its freedom of speech rights were violated by the department. Apparently, a number of antiwar banners hung on overpasses by the group were torn down by the maintenance crews, but American flags on the same overpasses were allowed to remain.

"It's a violation of our constitutional rights," protested the citizens. "You cannot pick and choose what you leave up or take down based on the message."

The Court agreed and ruled that Caltrans had violated the group's First Amendment rights by tearing down their political messages but leaving up the flags. The Department was held responsible for plaintiffs' attorney's fees and costs, as well as damages to the group.

Tort Report: Be on your toes—with the political climate being what it is, expect to see more political messages on public property. While one of our most cherished rights as citizens is freedom of speech, any message or activity that is not authorized by permit on State property is an illegal encroachment, and should be removed—regardless of whether you agree with its message or not.

The Case of the Compromised Guardrail

For reasons unknown, Deano Lion lost control of his vehicle on a state highway, ran off the road and 150 feet down a steep embankment, causing serious and permanent brain damage. He and his wife sued Caltrans for millions. At trial his attorney alleged Caltrans failed to timely repair a guardrail end treatment that had been hit in an accident six days earlier. Even though the Maintenance Manual guidelines at that time allowed up to one week to repair damaged guardrail, and the Caltrans maintenance crew placed temporary warning signs and barricades, plaintiffs argued Caltrans was at fault for not correcting the damaged section sooner.

"Hold the phone," said the state's attorney. "Our evidence shows Plaintiff's vehicle ran off the road and over the embankment prior to the start of the guardrail, so the fact the end treatment was damaged due to the earlier impact is irrelevant. The end treatment was designed to break away and was not intended to keep cars from going off the road, as evidenced by the lady who hit the end treatment six days earlier ending up down the embankment as well."

In their verdict the jury found the damaged section of guardrail created a dangerous condition of public property, but in a resounding 12-0 defense verdict, the jury agreed with Caltrans, finding that the damaged end treatment was not the cause of Plaintiff's injuries and that Caltrans was therefore not liable.

Tort Report: As the jury's finding of dangerous condition reminds us, it is important to maintain safety devices such as guardrail in good working order. When prioritizing scheduled work under the 2006 Maintenance Manual guidelines, maintenance needs to keep in mind the safety functions of guardrails.

Copyright 2006, California Department of Transportation, Legal Division. This article is not intended to provide any legal advice and is not to be relied on by any third party. The names of people and locations have been changed for privacy reasons.

© 2008 Regents of the University of California