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Mark Bello
Mark Bello
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Supreme Court Says Governmental Immunity Does Not Prevent Wrongful Death Suit

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When a plaintiff files a wrongful death lawsuit, his/her attorney will seek compensation for damages from all defendants. However, if the defendant is a government entity, different laws may apply and recovering damages may be limited under the doctrine of “sovereign immunity.” To prevail in a lawsuit against a government entity, the injured party must establish:

  1. That the property was in a dangerous condition at the time of the injury.
  2. That the injury directly resulted from the dangerous condition.
  3. That the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury that was incurred.
  4. That a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

For example, if a storm causes a sinkhole, the government entity may be held liable for resulting injuries or death if the government knew, or should have known, of the problem.

A wrongful death lawsuit alleged negligence by the Utah Department of Transportation (UDOT) after a state road collapsed. A man and his teen daughter were travelling in his Ford Excursion when the vehicle struck a piece of asphalt sticking upright where the road had given way. The impact carried the SUV over the hole, before crashing on the other side. The teen died at the scene; her father was seriously injured. Another vehicle, travelling in the opposite direction, had already careened into the hole, landing with its front bumper in the hole and its back end pointing straight in the air. That driver also suffered serious injuries. The Utah Highway Patrol (UTP) said heavy rainfall and a clogged culvert triggered the collapse, creating a hole in the roadway 40 feet wide and 30 to 40 feet deep.

The lawsuit stated that earlier in the day, UDOT employees worked in the area where the blocked culvert had caused a temporary lake about 20 feet deep. The suit claims that despite the failure to remedy the situation, UDOT employees stopped working sometime that afternoon or evening and failed to leave an employee to monitor the situation and/or warn drivers of the dangerous conditions created by the water and saturated fill. Attorneys for UDOT acknowledged there was “undisputed evidence” the blocked culvert and standing water caused the washout and subsequent crashes, but also argued, the crews made a decision that it was safe to allow the water to recede on its own.

In March 2013, a district court judge ruled that parents of the deceased teen were barred from suing UDOT based on provisions of the state’s Governmental Immunity Act that address the management of flood waters and storm water systems. An assistant Utah attorney general said that a culvert cannot be considered defective simply because it becomes obstructed by debris from time to time. While it may not make it defective it can, and did, make it dangerous and unsafe for motorists. A “wait and see” decision should never supersede safety, especially when there are known risks like in this situation.

The couple’s attorney filed an appeal in the case and last week, the Supreme Court reversed the decision, ruling that while the blocked culvert might be part of a larger storm water system, it could not be considered a storm water system on its own. The Supreme Court’s ruling means the case is now likely headed to trial.

Proving that a dangerous roadway caused an auto accident is often a long and difficult legal process. Successful cases will not only benefit the victims; of equal importance will be the improvements/corrections in dangerous road conditions that can save lives – changes that, without litigation might not otherwise happen. Although cases like this can directly force changes in dangerous road conditions that can save lives, it should not take a fatal auto accident for the government to fulfill its obligations to keeping us all safe. Shielding corporations and government entities from liability or damages is not a solution. Holding those who create dangerous conditions (or allow known dangers to continue without public warning) accountable for their actions, improves safety, saves lives, and prevents serious injuries and death.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.