Accident involving a defective guardrail.

A college student is partially paralyzed when he swerves to avoid a head-on collision with a vehicle that has entered his lane of travel and instead drives up the guy wire of a utility pole, spins off the wire, flips his vehicle onto its roof, and collides with the pole.

A 21-year-old automobile passenger suffers a horrific death when a collision forces her vehicle into a guardrail, which tears through the passenger compartment and cuts through her seatbelt, causing her to be ejected.

In a separate guardrail case, an 18-year-old driver loses his right leg when he swerves to avoid a head-on collision and goes onto the shoulder, which is approximately six inches lower than the highway. Being unable to swerve back onto the highway because of the drop, his car goes out of control into a guardrail, which penetrates his driver-side door.

A young mother and three of her children are struck and killed while attempting to cross a heavily traveled, multi-lane roadway in a crosswalk that had no traffic signal, no pavement markings and no signage to alert motorists of the presence of pedestrians.

A six-year-old boy sustains severe spinal cord injuries resulting in paralysis, traumatic brain injury, oxygen deprivation, multiple fractures and internal injuries when he is hit by a car while walking on a recreational trail that crosses a roadway. There was no signage, pavement markings or yellow flashing light to alert the driver of the pedestrian and bicycle crossing. Trees and overgrown foliage obstructed the driver's view of the trail.

A motorist sustains severe and permanent injuries when a large, decayed tree limb suddenly falls from a tree along a state roadway onto his vehicle.

A driver on an interstate highway is killed by a tractor-trailer that slammed into the rear of his vehicle, causing a multi-vehicle accident, while he was stuck in a backlog of traffic due to a construction zone project. The project's contractor did not maintain or follow an appropriate traffic control plan that would have given adequate warning to approaching motorists of the stopped traffic.

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The victims of the above accidents, including the families who lost loved ones, were our clients. It was our privilege to represent them, and our duty to evaluate and pursue theories of liability beyond, and in addition to, the usual theories involving negligent operation of a host or striking vehicle. Stated another way: In catastrophic auto injury cases involving limited auto insurance coverage or a single-vehicle accident where there is no liability insurance, theories of liability against non-drivers—who we'll call "hidden" defendants—are key to achieving a successful result.

Who Are the 'Hidden' Defendants?

When a motor vehicle accident results in serious injury or death, counsel should determine whether roadway conditions caused or contributed to the outcome. Those responsible for the design, construction, maintenance and repairs of the roadway and adjacent structures (such as guardrails and utility poles) may be "hidden" defendants. Possible theories of liability that counsel should investigate include:

• Negligent placement of utility poles and wires in the path of vehicles that are caused to leave the roadway.
• Defective guardrails, including guardrails that are defectively designed, improperly installed, improperly maintained or otherwise pose a hazard to the motoring public.
• Negligent roadway design, which includes inadequate traffic control signals and signage, poor lighting, improper speed limits, pavement edge drop-offs, failure to warn of dangerous conditions, and dangerous pedestrian crossings.
• Failure to fix dangerous roadway conditions and to implement safety improvements following repeated, fully preventable tragedies.
• Hazardous construction zones, including work zones that are not properly monitored by police, present dangerous road surfaces, lack adequate roadway markings or signage, or require motorists to suddenly and unexpectedly reduce their speed or come to a full stop.
• Failure to protect the motoring public from dangerous trees, which includes failure to conduct routine inspections and failure to remove and/or prune risky trees as necessary.

With the National Highway Traffic Safety Administration reporting in its February 2015 "Critical Reasons for Crashes Investigated in the National Motor Vehicle Crash Causation Survey" that 52,000 crashes from 2005 to 2007 were caused by environment-related reasons—including view obstructions, highway-related conditions, signs/signals and road design—it is imperative that auto injury counsel know what to do when a potential client contacts you about a case with liability issues that go beyond typical theories of driver negligence. Below we offer an action plan for recognizing, investigating and litigating "hidden" defendant cases.

Immediate Steps

When a potential client contacts you with a case that may involve "hidden" defendants, here are the immediate steps you must take:

Preserve Evidence. The first step is to act quickly to ensure that critical evidence does not vanish. To be clear: It is exceedingly difficult, if not impossible, to bring a claim if all vehicles involved in the accident or other evidence (such as a defective guardrail) are not available for inspection by experts.

Hire Experts. Upon securing the evidence, you must immediately assemble your investigative team to evaluate it. Depending upon the nature of your case, professionals to consider include:

• A private investigator/photographer;
• An accident reconstruction expert;
• A professional engineer, with traffic engineering experience;
• Construction contracting experts;
• Human factors experts.

Conduct a Forensic Investigation. There is a limited window of opportunity to document the accident site and to gather and assess physical evidence before it is lost forever. For instance, if a gouge in the roadway is not properly documented, and the roadway is later altered or the gouge fades, important evidence will be lost. Because memories fade, it is also important to interview all witnesses as soon as possible.

Provide Notice of Claim. If you believe there are potential claims against the state, a county or a municipality, you must provide notice of claim within 90 days of the date of the accident, pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq.

Regulations and Standards

Whether a roadway (or a structure, such as a guardrail or utility pole) poses a hazardous condition may be governed by its conformity with the New Jersey Department of Transportation's regulations and safety standards. You should obtain the applicable regulations and standards immediately. You may also wish to consider standards of private organizations, such as the American National Standards Institute (ANSI).

Documents and Records

Documents and records that plaintiffs' counsel should seek to obtain through Freedom of Information Act requests and discovery include:

• All project documents, including construction plans, progress notes, logs and photos;
• Maintenance records, including inspection reports and work orders;
• All government and private contracts.

Depositions

Depositions to consider include:

• Officials from the New Jersey Department of Transportation;
• State and private engineers;
• Architects;
• Job site superintendents;
• Corporate designees of private contractors.

Consider Crashworthiness

Crashworthiness is another type of claim counsel should consider in cases involving serious injuries or death of auto occupants. In short, crashworthiness cases, also referred to as auto defect claims, are cases in which the vehicle, because of its unsafe design or the absence of necessary safety features, fails to adequately protect the occupants from injury in foreseeable crashes. Because crashworthiness claims often cost hundreds of thousands of dollars to prepare, only catastrophic injury claims can support the necessary level of financial investment, and only a limited number of law firms handle these types of cases. It generally will be necessary to refer the matter to a law firm experienced in crashworthiness litigation for an evaluation.

If you believe a client's catastrophic injury may support a crashworthiness claim, again you must act immediately, within days of the accident, to preserve the vehicles involved in the crash and to contact a crashworthiness attorney who can arrange for the necessary investigation of the vehicle's crashworthiness and a forensic investigation of the accident site.

Settlements That Prevent Tragedies

A common motivation among clients who are victims of catastrophic auto injuries and losses is their desire to spare other families from similar tragedies. We submit that plaintiffs' counsel can play an important role in achieving that objective.

When litigating a "hidden" defendant case, be mindful that you can achieve a fair result for your client while also negotiating settlement terms that promote public safety. Many of our firm's settlements have included provisions requiring:

• Inspection, removal and replacement of dangerous guardrails;
• Improved signage and markings, and the addition of traffic control signals at pedestrian crossings;
• Safety improvements where "budgetary constraints" and the need for "additional studies" had repeatedly been cited as excuses for inaction that perpetuated serious injuries and deaths over many years;
• Tree inspections, removals and closures of areas with compromised trees.

Indeed, accountability in litigation can be a powerful impetus for change.

 

John M. Dodig and Jason A. Daria are partners at Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig in Philadelphia. They handle a wide range of complex civil litigation including motor vehicle and trucking accidents, in both Pennsylvania and New Jersey.