Victims Face Hurdles to Sue State

Government agencies are potentially liable for auto accidents caused, in whole or in part, by defects in highway design and maintenance although the liability is subject to doctrine of “sovereign immunity” in a particular state. Although sovereign immunity limits the government’s liability in some cases, there are exceptions, which vary from state to state, such as:

• The road became dangerous because of a change in physical conditions.
• The government agency knew of the dangerous conditions and had reasonable time to obtain funding and make repairs/improvements.
• Dangerous or misplaced road construction markers and barricades
• Dangerous curves and defective guard rails

Nine years ago, an American Crushing & Recycling dump truck went out of control when its faulty brakes failed. The fully loaded truck weighed about 70,000 pounds when it came barreling down a 500-foot hill smashing into cars and a commuter bus waiting at a traffic light.  Five people were killed and many were injured; the driver of the dump truck among those killed. His employer admitted knowing the truck had bad brakes, but put it on the road anyway; this type of employer behavior happens more often than you think.

In addition faulty brake problem, plaintiffs alleged that Avon Mountain is defective and that state DOT shares responsibility for this tragic accident. Mike Cummings still hears the sickening sounds from that July 2005 accident at the foot of Avon Mountain. Cummings suffered multiple broken bones and ribs, a punctured lung, a broken collarbone, knocked-out teeth, a torn knee and ankle, and post-traumatic stress. Nine years later, Mr. Cummings and other survivors continue their fight to hold the state Department of Transportation (DOT) responsible for the accident.

Cummings and a widow of another victim filed a lawsuit against the DOT seeking damages for alleged negligence. The suits claim state officials knew for years that the road was dangerous, but failed to take adequate safety precautions, such as adding a runaway truck ramp near the bottom of the hill. DOT officials said the road wasn’t defective and the lawsuits should be dismissed under government immunity. When a Superior Court trial judge refused to dismiss the lawsuits, the DOT appealed to the state Appellate Court, which agreed with the DOT. Cummings’ lawyer is still arguing the fact that while Connecticut law shields state government from many lawsuits, it specifically allows people to sue the state over design defects in roads.

Since 1995, 14 people have died on Avon Mountain, but not until a second “runaway” truck accident in September 2007 did state officials finally take action. The Governor ordered daily state inspections for trucks, a run-off ramp was built, and the DOT widened the shoulder, posted warning signs, and stepped up enforcement.

“Because of recent accidents, this truck ramp is a major component of our overall short- and long-range plan to reduce truck-related crashes and improve traffic safety on Avon Mountain,” said Department of Transportation Commissioner Ralph J. Carpenter. “The safety of the traveling public is always our top priority and I am pleased that we are ready to begin this work.”

In addition to the ramp itself, the project included the construction of retaining walls, concrete barrier curbing, and a “Dragnet Vehicle Arresting Barrier System,” a series of metal arresting nets and cables that are attached to self-contained energy absorbing units that are designed to safely stop a vehicle. All of this, while acknowledged and appreciated by this writer, is too little too late for the victims of the July 2005 tragedy.

Drivers have a right to expect that the government strives to provide safer roadways. Unfortunately, the government is often not up to the task. Lawsuits such as the ones filed by Cummings and other victims at the foot of Avon Mountain almost always results in improved roadways. Personal injury litigation is often the vehicle that most promotes safety. Although the trucking company was negligent in maintaining the dump truck, the conditions of Avon Mountain will most likely be found defective at the time of the accident, creating DOT liability. If it is determined that the government failed to fulfill its obligations, it can, and will be held accountable.

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.

Mark Bello has thirty-seven years experience as a trial lawyer and fifteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice, Public Citizen, the American Bar Association, the State Bar of Michigan and the Injury Board.