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$650,000
WRONGFUL DEATH FROM
DEFECTIVE HIGHWAY DESIGN
Fernandez and
Giron v Yakima County stands as an example
of what a diligent lawyer can do to build a
powerful negligent highway design claim.
Arnoldo Ramirez,
Jesus Giron and Octaviano Olguin, three Hispanic
field workers, were dispatched by a Yakima fruit
company to haul a load of garbage to a local
dump. As Ramirez drove up Lucy Lane in rural
Yakima County, the right front wheel slipped off
the paved portion of the road. Now facing a
steep embankment, Ramirez was unable to control
the truck, which hit a tree, killing the two
passengers, Giron and Olguin.
The Washington
State Patrol investigated the accident and
issued a comprehensive 33-page report that
concluded: "The cause of the collision was
driver inattention." Yakima County produced
a report of their expert, Larry J. Stadler,
concluding that "…the only logical
causation for this accident was driver
inattention."
Octaviano Olguin
left a mother, but no wife or children. Jesus
Giron left a wife, Maria Giron, and three young
children. Maria, who spoke no English, sought
legal assistance from four separate lawyers in
Yakima. Each told her there was nothing they
could do for her, either because they had an
unexplained "conflict of interest"
with the powerful local fruit company or because
they had concluded that any lawsuit against the
inattentive driver-coworker would be precluded
by the Workman's Compensation bar. The driver
had no insurance or assets.
Because she was
destitute and desperate for help, Maria Giron
continued to seek legal assistance. Two and a
half years after the accident, she contacted
Glenn Carpenter, Jr., a Spanish-speaking
attorney practicing in Kent, Washington.
Glenn Carpenter
associated with Dean Brett, a lawyer who had
prior experience in wrongful death and highway
design cases. They visited the scene of the
accident. Based on their observations they
contacted an engineering firm, Edward Stevens
and Associates, to survey the site and review
its compliance with applicable highway design
standards.
After surveying
the site, Mr. Stevens realized that Yakima
County had misplaced the original centerline so
that rather than two ten-foot lanes, they had
created one 12-foot lane and one 8-foot lane.
The 8-foot wide truck, in an effort to maneuver
the 8-foot lane, had slipped off the side of the
pavement. In addition to the extraordinarily
narrow lane, Stevens also concluded that the
shoulder was substandard, the slope was
substandard, and that the tree was in violation
of a clear zone requirement.
To summarize,
Lucy Lane was:
- a 50
mile-per-hour roadway with a severely
substandard lane width (actual 7.6 feet,
standards require 11 feet),
- bordered by a
narrow, soft, gravel "shoulder"
with an abnormally high outbound slope
(actual 8-12%, standard allows no more than
6%),
- bordered by an
unmarked, steep, 1.7/1 embankment (must be
4/1 or greater to be recoverable under
Department of Transportation Design Manual),
- with a large
tree well inside what standards require to
be maintained as a clear zone.
Brett and
Carpenter dug into the history to determine how
Yakima County had negligently maintained Lucy
Lane. The road was built in 1951 with two
10-foot lanes bordered by 4-foot shoulders.
Unfortunately, Yakima County negligently
repainted the centerline so that the southbound
lane was now approximately 12 feet wide and the
northbound lane was just under 8 feet wide!
How could this
have happened? Matt Pietrusiewicz was Yakima
County's Road Maintenance Manager. He did not
know how it happened.
Q:
Do you yourself know how it came about that Lucy
Lane at the site of this accident had two lanes,
one approximately 12 feet wide and one
approximately 8 or less feet wide?
A: I do not.
Q: Do you know anybody who does?
A: I do not.
Q: Has that question been a subject of
conversation within the department?
A: Yes.
Q: And have you made an effort, you and others
in the department, made an effort to find answer
to that question?
A: There have been discussions.
Q: Is it fair to say that nobody in Yakima
County, as far as you know, knows how it
happened?
A: Yes.
Kent L. McHenry
was Yakima County's Traffic Engineering Manager
in charge of traffic design and traffic
operations. The people who actually painted the
centerline reported directly to him. His
attitude toward centerline striping may give us
a clue about how the stripe was misplaced.
Q:
What is a centerline?
A: The centerline is intended to indicate the
approximate center of the roadway for two-way
traffic.
Q: And where is it located?
A: Approximately in the center of the roadway
for two-way traffic. It would be different in
different lane configurations.
Q: Okay. What do you mean by
"approximate,"
"approximately"?
A: It means that it doesn't necessarily have to
be in the exact center of the roadway, but -
Q: I understand that.
A: Approximately.
. . . .
Q: So if you send somebody out to - if you send
your striping crew out - you have a striping
crew in Yakima County?
A: Yakima County has a striping crew.
Q: So you tell them to put the centerline in the
approximate center of the roadway, correct?
A: Yes, sir.
Q: And so if they go out to a 20-foot lane - if
they go out to a 20-foot roadway and they are
told to put the centerline in the approximate
center and they put the centerline off two feet,
so that one lane is 12 and the other lane is 8,
they have met your standards; is that correct?
A: Yes, sir.
McHenry and
Pietrusiewicz reported to Gary K. Ekstedt, who
was the Assistant Public Works Director for
Transportation Services. He had to concede
certain engineering principles:
Q:
But if someone built a road for you under
contract and they built the crown correctly, but
they put the lane - if they put the centerline
in the wrong location, I'm going to call it
"wrong location", you know, it's one
8-foot lane and one 12-foot lane, would that be
acceptable to you?
A: If it was a new road, no, it wouldn't.
. . . .
Q: Okay, but is there somewhere where it's
written down in your specifications that the
centerline is supposed to be in the center of
the road?
A: No.
Q: That's something that's expected to be done,
though.
A: It's expected to be done, though.
Q: It's good engineering practice?
A: It's good practice, as long as there are no
mitigating issues, yes.
Ekstedt then
cleverly explained how 8-foot wide trucks should
negotiate the 7-1/2 foot lane.
Q:
So if you have an 8-foot wide truck and you've
got a 7-1/2 foot wide lane, all you have to do
is go over the centerline six inches, and, what,
maybe another six inches to give yourself a
little clearance off the edge?
A: That would be correct.
. . . .
Q: So the 8-foot wide vehicle that's going down
the 7-1/2 foot wide paved lane would go into the
oncoming lane rather than go onto the shoulder.
A: Yes.
Ultimately
investigation determined that the roadway had
been resurfaced on several occasions since 1951.
When a roadway is resurfaced, workers place
plastic tabs on the center line which stick up
through the new asphalt and mark where the new
centerline is to be placed. The workers had
placed the tabs on the right hand stripe of the
double stripe, resurfaced the road, then laid
down the left hand stripe over the old right
hand stripe location - thus moving the double
stripe to the right eight inches. Having
followed this mistaken procedure three times,
the center stripes had been moved to the right
24 inches, creating one 12-foot lane and one
8-foot lane -- too narrow for an 8-foot wide
truck to pass.
In addition,
Yakima County had allowed the shoulders to
deteriorate to half their original width so that
instead of a 4-foot gravel recovery area there
was only a 2-foot recovery area.
Finally, Yakima
County had allowed a large tree to grow within
the right-of-way. The year before the accident,
county employees decided the tree needed to be
removed to make the road safe, but then
mistakenly thought that the tree was outside the
right-of-way, and decided they could not cut it
down. They were wrong. Instead of measuring with
a survey, or even with a tape measure from the
roadway to determine whether the tree was in the
right-of-way, they simply sighted up a row of
power poles and assumed, incorrectly, the power
poles marked the right-of-way boundary, again
demonstrating measurements that were "good
enough for Government work" in Yakima
County. In fact, the tree was well within their
right-of-way.
In short, Yakima
County did not "maintain" the original
design. They did not "maintain" the
original lane width, they did not
"maintain" the original shoulder
width, and they did not "maintain" the
clear right-of-way. Rather Yakima County allowed
Lucy Lane to deteriorate to a very different
roadway. That new and different roadway did not
meet current design standards.
But Brett and
Carpenter had to demonstrate that Lucy Lane
currently failed to meet the modern design
standards. The northbound lane of Lucy Lane had
a severely substandard width. Since Yakima
County last overlaid the road in 1989, the
standards in place at that time governed
liability. The 1984 AASHTO (American Association
of State Highway Traffic Officials) Design
Manual set lane width standards. A
50-mile-per-hour road required 11-foot lanes and
4-foot shoulders. Lucy Lane's northbound lane at
the accident site was an incredibly narrow 7.6
feet wide, in an area frequently used by
standard 8-foot wide farm trucks, like the one
involved in this tragedy. The MUTCD (Manual on
Uniform Traffic Control Devices) generally
required the centerline to be in the center of a
roadway, except on curves.
The gravel
"shoulder" bordering Lucy Lane's
narrow northbound lane was also so out of
compliance that it did not technically qualify
as a shoulder. The American Public Works
Association's Street and Highway Maintenance
Manual required gravel shoulders to have no
greater than a 6% slope. Only 5 feet of the 200
feet of Lucy Lane at the accident site met this
standard. Ninety feet exceed 8%, and some areas
exceed 12%. The expert hired by the County
measured the shoulder drop-off slope at 15%.
This was more than a technical violation. Gravel
shoulders of greater than 6% outbound slope tend
to pull vehicles further off the roadway, rather
than providing a recovery area.
The steep
embankment bordering the narrow lane and
excessively outsloped "shoulder" was,
according to Edward Stevens, P.E.,
"absolutely non-recoverable." At a
slope of 1.7/1, once a vehicle is onto what the
County's expert called "the unusable
shoulder", recovery back onto the roadway
was impossible.
There were not
even edge delineators to mark this hazardous
drop off.
At the bottom of
the embankment was a fixed object - a large tree
leaning into the roadway. Washington State
Department of Transportation Highway Design
Manual (1989) provided the standard for
calculating the required recovery area. Using
this formula, the tree was 5.7 feet inside the
recovery area which DOT required to be clear of
fixed objects.
The excessive
speed limit of 50-miles-per-hour only made these
deficiencies worse. AASHTO required as a minimum
22 feet of pavement and two 4-foot shoulders to
allow a 50-mile-per-hour speed. Even if the
above-described deficiencies were removed, the
maximum allowed speed would have been
35-miles-per-hour, with the nominal 20 feet of
pavement divided into two equally sized 10-foot
lanes, two 4-foot shoulders and a 10-foot clear
zone.
The 7-½ foot
lane did not provide enough room for an 8-foot
wide truck without illegally crossing the
off-center centerline or driving onto the
dangerously tilted shoulder. The narrow, soft,
tilted shoulder, steep embankment, and lack of a
clear zone allowed no recovery room once a right
front tire left the edge of the 50-mile-per-hour
highway.
Brett and
Carpenter then had to prove that the negligently
maintained, defectively designed Lucy Lane
caused this tragic, double fatality. Arnaldo
Ramirez testified that he and two co-workers
were driving at 40+ miles per hour up Lucy Lane
in an eight-foot wide farm truck loaded with
garbage. He looked into the rear view mirror to
see if anyone wanted to pass him. State Patrol
photographs of the scene showed that his right
tire left the 7 ½ foot northbound lane as he
passed over a level road entrance to an
adjoining field. Leaving the level field
entrance, the right front tire was off the paved
lane and into the soft shoulder, which had a 15%
drop off. At 40 miles per hour, Ramirez had
insufficient time to react to the danger before
he was in what Yakima county's expert described
as the "unusable shoulder" and crashed
into the large tree Yakima County had failed to
remove from the clear zone.
Despite heroic
efforts, Ramirez could not avoid the tree. As
the truck tilted right and lurched down the
embankment, he was thrown to the right. The
inside of his right ankle was cut open by the
side of the brake pedal as he tried to hit the
brakes, but missed. He put so much effort into
trying to turn the steering wheel that his right
shoulder suffered a severe strain requiring
medical attention. There was also a scar in the
middle of his forehead, evidencing his own brush
with death. Both his coworkers were crushed by
impact with the tree and bled to death.
An expert on
accident reconstruction, Duane McInnnis P.E. of
McInnis Engineering testified that, based on
reconstruction using engineering principles
incorporated into the computer program PC Crash,
at 30 mph or above, at a three degree exit
angle, an errant vehicle will not be able to
recover on the shoulder and slope of Lucy Lane
provided by Yakima County.
Due to the narrow
lane, tilted shoulder, steep embankment, and
tree in the clear zone of a 50 mph highway, two
passengers bled to death when the truck hit the
tree. This was not just a case of "driver
inattention."
After four law
firms refused to represent the Fernandez and
Giron families, diligent work showing the
negligently designed roadway led to an
out-of-court settlement of $650,000, the largest
settlement against Yakima County up to that
time. The result was particularly rewarding in
light of the fact that decedents were low wage
earners, one of whom was an undocumented alien,
bringing a claim against "city hall."
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