Claims against Public Entities: Government Liability in Roadway Maintenance Safety Issues – Part II

While the median-barrier problems in Oregon serve as a perfect example of the complexities involved in defining the parameters of government responsibility in providing safe roadways, this particular issue applies to a number of highways located throughout the U.S., Illinois included. The law pertaining to the maintenance of roadways is fairly uniform in most states, in that a duty exists to provide reasonably safe roadways, which includes protecting the public from inherently dangerous conditions that pose safety risks or hazards to persons that the entity intended, permitted, and reasonably expected to make use of, in the manner for which it used (i.e. motorists and passengers of motor vehicles).

And although the government can shield themselves from liability-at least in some ways-however, the duty to exercise ‘due’ and ‘ordinary’ care remains, as it would for any property owner, whether the government or a private individual. So then, at what point can the government be held responsible for their failure to remedy a known hazardous roadway condition?

Well, the answer to this inquiry will depend on several factors, including (1) the specific circumstances of the incident involved; (2) precise statutory language provided under the applicable law; (3) prior case law; and (4) other factors, such as judicial discretion in ruling on evidentiary matters, as well as the effectiveness of the claimant’s legal representation.

With regard to Illinois law, 745 ILCS 10/3-102(a), provides that:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.”

In interpreting the statute, it is helpful to assess four key concepts, keeping in the legislative purpose and intent behind its enactment:

(1) ‘ordinary care to maintain its property in a reasonably safe condition’
(2) ‘intended and permitted property user’
(3) ‘actual or constructive notice’

For explanatory purposes, let’s consider a highway collision in Illinois involving the same factual circumstances as the median-barrier safety issues as in Oregon. First, operating a permitted motor vehicle along a public highway is certainly an intended use of such property. Second, the government appears to have been well-aware of the safety issues for some time, as is evidenced by the initial construction of the berms; subsequent recognition of the berms exacerbating the problem in several accidents; and plans to remedy the issue by installing cable-barriers, construction of which was delayed for years-as well as several years of crash data, and expressions of community concern and input from residents, government-affiliated officials, safety advocates, public-interest groups, and others.

Although the element of ‘actual or constructive notice’ may perhaps be debatable, it appears that the primary issue-at least with regard to barrier-related roadway maintenance problems that mirror the ones in Oregon-reside in whether the government exercised ‘ordinary care’ in maintaining its property in a ‘reasonably safe condition.’ Now, this is where matters can be more complex, in that defining what is ‘ordinary,’ and what is ‘reasonable,’ can vary greatly, depending on the facts involved, as well as a persons or court’s individual assessment.

As motorists in the U.S., we have, in the very least, a reasonable expectation that our highways will be adequately maintained, repaired, inspected, and updated, as is necessary to ensure the safety of motorists. To this extent, it would seem reasonable for a motorist to expect that state highways that are heavily occupied by fast-moving traffic, will be separated from opposing traffic in a manner that effectively protects motorists from injury or harm. Further, one would think that ordinary care would include remedying a known roadway hazard that has contributed to numerous accidents, injuries, and wrongful deaths.

From the legal perspective, prior cases have shown that what is ordinary and reasonable can be ascertained not only from prior case law, but also from what safety improvements have been implemented in surrounding areas. With regard to barrier-related median crossover safety issues, the neighboring state of Washington has not only identified barrier issues, but implemented a significant number of changes along I-5 to improve safety. In addition, the Federal Highway Administration discussed this specific issue in April 2014 report, noting their concerns over crossover collisions, which could be reduced through the use of cable-barriers.

So, why then have public entities in Oregon done so little to address safety concerns related to median-barrier crossover collisions? Moreover, has the government breached their duty of ordinary care owed to motorists in providing reasonably safe roadways? In assessing the presence of breach, consider the following, as indicated by the Oregonian, a local media source, upon their review of interviews and documents regarding this safety issue,


“the highway north of Salem went unprotected for so long because of changing political priorities, lack of money, decentralized ODOT decision-making and a traffic safety formula that doesn’t look at crash potential the way some other states do.”

Provided with the foregoing, it is not difficult for one to conclude that the government’s continued inaction appears to be an apparent breach in duty of care. Our automobile collision attorneys are aware of at least one potential claim against the government extending from a recent I-5 crossover fatality, which reportedly alleges that the state “negligently and carelessly permitted unsafe road conditions by the continued and repeated delay in the installation of life-saving cable barriers on a known hazardous stretch of highway.”

It is important to note that, while there are variations between states, both in statutory provisions and case law, the underlying issue in claims against the government associated with roadway maintenance, remains the same-that is, ‘Did the government breach their duty to provide reasonably safe roadways?‘ As veteran attorneys, we are compelled to answer this in the affirmative, and look forward to seeing whether justice is carried out, in the form of financial compensation provided to the victims of tragic and preventable I-5 crossover accidents.

The Chicago Personal injury & Wrongful Death Attorneys of Zneimer & Zneimer P.C. practice solely in the state of Illinois. However, we note the Oregon issue, because we see similar roadway safety hazards in our own state that we feel either have already, or could in the future, contribute to automobile accident injuries and fatalities. In addition, we find it necessary to stress the importance of having a legal professional review the factual circumstances of an automobile collision, immediately following its occurrence, to determine all potential sources of liability to direct claims at.

Claims against the government are often overlooked by victims, and in some cases, even lawyers as well, either due to their complex nature or lack of familiarity in handling such claims. At Zneimer & Zneimer P.C. we explore all potential liability sources, and have the litigation and practice experience necessary to provide effective advocacy and achieve meritorious results on behalf of all auto collision victims, whether the injured, family members of the deceased, or the decedent’s estate. Protect your legal rights to financial recovery-contact us, either online, or by calling 773-516-4100.

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