Median Barriers and Crossover Crashes: Government Liability in Roadway Maintenance Safety Issues – Part I

Claims against governmental entities (i.e. state, county, school district) are highly unique in comparison to other types of actions brought forth to recover damages for a death, injury, harm or other loss. This is because most government-associated entities enjoy some form of immunity from such suits. Further, actions against the government are subject to distinctive procedural rules, standards, and guidelines, which vary greatly from the usual personal injury lawsuit involving non-government defendants. Here, the Chicago Attorneys of Zneimer & Zneimer P.C. discuss government liability in motor vehicle collisions involving roadway safety issues.

Our concerns over the need to address this topic extends from a string of accidents in Oregon involving median crossover collisions, purportedly caused due the Transportation Department’s failure to install proper barriers to separate opposing lanes of traffic. Although department officials have acknowledged concerns over roadway barrier issues along several hundreds of miles of highway in Oregon, certain portions have been identified as particularly problematic, due to their high rate of crossover collisions.

In particular, a the 5-mile stretch of I-5, between Keiser’s Chemawa Road NE and Salem’s Santiam Hgwy SE, has seen more than 22 crossover crashes since 2005, many of which were exacerbated by the state decision-making over the use of earthen-berm, as opposed to the use of cable barriers. As accident and injury attorneys, we find both the quantity and nature of these collisions highly concerning, given the government’s more than decade-long knowledge and awareness of this important safety issue.

Even more troubling is that concerns over median crossover crashes in this vicinity date back to the early 1990’s, which resulted in the state’s erection of 5-foot earthen berm barriers in 1994. However, many say the berms not only fail to protect motorist traveling in opposite directions along a highway separated by a narrow 30-foot median, but in some cases have also worsened accidents by causing vehicles to propel or ‘vault’ over the low-lying earthen barrier into the pathway of oncoming traffic.

Amongst recent accidents, was the September 24th collision that took the life of a vehicle passenger, 25-year-veteran State Mental Health therapist Cary Marie Fairchild, as well as the driver of the car she was carpooling in, being operated by Dr. Steve Fritz, when a vehicle crossed the median and struck the victims head-on. Less than 24-hour after this tragic incident, a third motorist was killed in another crossover collision-this time, the victim was the driver responsible for crossing the median. Yet these are just two of the numerous tragedies that continue to plague Oregon motorists, both along I-5, and other highways in the state as well.

Following these two recent collisions, the department announced its intention to immediately procure contractors to construct the cable-barrier system that it had been contemplating for years. In a statement prepared by Matt Garret, the Director for the Oregon DOT, “Extreme conditions call for extreme measures.” While the implementation of safety barrier improvements is certainly long-awaited and necessary, as injury attorneys, we can’t help but reflect on the numerous accidents, injuries, and especially deaths, which could have been prevented.

Our primary concerns reside in what it takes for a government to constitute a safety hazard as an emergency. With regard to Oregon, it seems that fatality related incidents have been more influential in promulgating safety improvements, than have decades of crash data evidencing a clear safety risk-which appears to be a more reactive approach, as opposed to a preventative one. In doing so, the government is, in a sense, blurring the lines between the duty that they owe persons who utilize public roadways, and motorists’ reasonable expectation that such roadways will be maintained in a manner that provides adequate safety.

To continue reading on this topic, see ‘Claims against Public Entities: Government Liability in Roadway Maintenance Safety Issues – Part II.’