Car slides into the Russian River- What is the State of California’s responsibility?
A friend of mine posted a story on Facebook about a tragic accident that occurred in the Russian River area. The post caught my attention because my friend who has a summer home near there is personally aware of several other similar accidents on that same turn. So why isn’t the State of California doing something about this dangerous section of road?
The accident involved a mother who was driving her car down Highway 1. She had her two young children in the car with her. She was traveling at approximately 35 m.p.h. when her car began to slide on the wet roadway along a curve. She tried to correct her car but she ended up going down an embankment and into the river, forty feet below. Sadly, her two children drown in the accident.
The State of California is legally responsible to keep our roadways in a safe condition. If the roadway is dangerous and causes injury or death, the State may be liable for personal injuries or wrongful death if certain conditions are established. To establish liability, it must first be shown that the public road was dangerous.
Dangerous is legally defined as a “condition of public property that creates a substantial risk of injury to members of the general public when the property is used with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition.” (California Civil Jury Instruction 1102).
Second, it must be shown that the State negligently created the condition or that the State had notice of the dangerous condition for a long enough time to have protected against it. Notice is typically shown by investigating whether other similar accidents have occurred in the same location so as to alert the State to the problem that exists. Information about other accidents can be obtained through the California Highway Patrol, Statewide Integrated Traffic Records System (SWITRS reports). Other accidents can also be discovered by diligent investigative work, interviewing local residents, tow truck drivers, and reviewing court records.
Finally, it must be shown that the dangerous condition was a substantial factor in causing the car accident and the ensuing injuries or death.
As you can see, there are a number of high hurdles that one must jump over in order to recover against the State. But even then, the claim may be barred by one or more immunities that the State and other public entities enjoys by law. The typical immunity that comes up in defective roadway cases is the design immunity. Essentially, the State is immune from lawsuits if the dangerous condition was part of a plan or design that was approved by an engineer or other person with authority hired by the State to approve such designs. The design immunity, however, is not absolute, and can be overcome. The immunity is lost if it can be shown that there have been physical changes in the area since the approval of the design which made the road dangerous, that the State had notice of the change in physical conditions, and that it had reasonable time and the funds to make the necessary repairs to make the road safe.
As with any claim against a public entity, there is a six month claims statute. This means that you must file a government claim against the State within six months of the date of the injury or death or the claim will be barred by law. Claims filing can be particularly tricky as one must allege facts necessary to establish all of the various theories of liability that will be pled in the ultimate lawsuit that is filed with the court. For these reasons, it is imperative that you seek the counsel of a personal injury lawyer who handles government claims before filing the government claim, and well before the expiration of the six months.
As a dangerous roadway lawyer, I have represented individuals and families in numerous cases against the State and other public entities where dangerous conditions have caused serious injuries and death. Frequently, these cases can involve lack of appropriate barriers/ guard rails, poor signage and striping, improper grading and paving, and poor visibility. The cases are challenging and require the use of an expert traffic engineer familiar with roadway design standards. As you might expect, the State of California vigorously defends these claims, but they can be won with hard work, creative investigation, and persistence. The cases are rewarding because in addition to compensating the family, the suits effect change which benefits the driving public. Often, these suits result in the State of California fixing the dangerous condition such as that which caused the deaths in the Russian River accident.
Truck plunges into Russian River, trapping and killing 2 sisters, SF Gate, August 23, 2016