In a case widely reported by the national media, the Washington State Supreme Court recently ruled that a governmental entity may face liability for faulty road design that leads to injuries in car crashes, even when the driver is drunk and driving recklessly.
In Lowman v. Wilbur, et al., No. 86584-1, 2013 Wash. LEXIS 618 (August 8, 2013), an eight to one decision, Washington’s highest court held that a driver’s drunkenness cannot act as a bar to a municipality, county and/or utility company’s liability for negligent road design or construction. In so holding, the court ruled that a plaintiff need only establish that the road’s design and/or construction was negligent and was a cause in fact of his or her injuries to avoid early dismissal of the case.
In Lowman, plaintiff Nathan Lowman met Jennifer Wilbur at the Country Corner Bar and Grill. Wilbur invited Lowman to go home with her, and Lowman agreed. Despite the fact that she had been drinking, Wilbur drove. Before they reached Wilbur’s home, she lost control of the vehicle and hit a utility pole. Due to the collision, Lowman sustained severe injuries to his right arm, including a permanent disfigurement.
Lowman sued Wilber, Country Corner Bar and Grill, Puget Sound Energy (PSE), and Skagit County, contending that all committed negligent acts that caused his injuries. The evidence established that Wilbur was legally intoxicated while driving at a high rate of speed on a meandering country road, and that she lost control of her vehicle as a result, slamming into the utility pole. In fact, Wilbur pleaded guilty to felony vehicular assault based upon the incident. Lowman retained an expert who opined that the utility pole was less than five feet from the edge of the roadway, was dangerous, and did not comply with Skagit County utility pole placement standards.
PSE and Skagit County moved to dismiss Lowman’s claims, arguing that they should not be held liable for Lowman’s injuries because, as a matter of public policy, any connection between the PSE and Skagit County’s actions (i.e., the decision to place the pole next to the roadway) and its ultimate result (Lowman’s injuries) was “too remote or insubstantial to impose liability” where Wilbur was drunk and driving recklessly. Notably, for the purposes of summary judgment PSE and Skagit County conceded that the pole was improperly placed and that the actual collision between the vehicle and the pole was a cause in fact of Lowman’s injuries. The trial court granted the motion to dismiss, and Lowman appealed.
The Court of Appeals, Division One, affirmed the trial court’s dismissal of Lowman’s claims against PSE and Skagit County. PSE and Skagit County should not, the Court of Appeals concluded, be required to protect against the consequences of criminally reckless drivers. Because “[n]either PSE nor Skagit County did anything to precipitate the departure of Wilbur's vehicle from the roadway,” the improper placement of the utility pole was too remote from the plaintiff’s injury to warrant the imposition of liability for Lowman’s injuries on the utility and county.
The Court of Appeals decision conformed with its prior rulings in similar cases, where the Court of Appeals routinely declined to hold a municipality’s negligent road design was the legal cause of a collision where the drivers were:
Traveling between 49 and 63 miles per hour in a 30 mile-per-hour zone;
Crossing the center line while highly intoxicated and travelling at 40 miles per hour in a 25 mile-per-hour zone; and
Highly intoxicated, with a blood alcohol content of at least 0.22g/100mL, and speeding.
In each prior case, the Court of Appeals concluded that as a matter of public policy, Washington’s municipalities, counties and cities should not be expected to guard against negligent driving of this magnitude. Lowman then appealed to the Washington State Supreme Court. Washington’s highest court reversed the decision of the Court of Appeals, and remanded the case to the trial court for further proceedings.
In reaching its decision, the court analyzed the public policy considerations underlying the duty of care owed by a government to its citizens. The court noted that in some cases, such as a claim against a physician for “wrongful birth"1 and claims for personal injuries attributable to the illegal sale of alcohol to minors, public policy concerns dictate that a defendant should not be permitted to avoid tort liability simply because the plaintiff cannot show that the defendants’ negligence was “too remote or insubstantial to impose liability.” In this case, the court noted that a government entity should not be permitted to avoid tort liability for its alleged failure to properly maintain its roads and highways based upon the absence of “legal cause,” even when a motorist involved in the accident giving rise to the claim has engaged in criminally reckless behavior. Justice Madsen, in concurrence, noted that the recent actions by the Washington legislature to make it easier for a plaintiff to bring an action for injuries sustained in a car accident where the driver as intoxicated demonstrates the influential public policy concerns upon which the decision is based.
Moving forward, so long as a plaintiff can show that the telephone pole (or other feature of the roadway) was improperly placed or negligently constructed, and that the road’s construction actually caused the injuries, the case can proceed and should be decided by a jury. Whatever the reasons for a car’s departure from a roadway, the court held that, “as a matter of policy” Washington Courts must “reject[s] a notion that a negligently placed utility pole cannot be a legal cause of resulting injury, as a matter of law.” Although Justice Madsen cautions in her concurrence that the majority opinion should not be read so broadly as to impose liability on a municipality whenever the plaintiff can show a dangerous condition in the roadway that caused his injury, it is unclear how the lower courts will proceed with this new ruling in hand. As Justice Johnson warns in his dissenting opinion, the majority seemingly ignored the “sound public policy that prevents taxpayers from insuring against the consequences of criminal behavior.” With this ruling in hand it remains unclear whether Washington’s trial courts are ever permitted to dismiss a lawsuit at its early stages because the facts are sufficiently egregious as to demonstrate that “the consequences of criminal behavior [are] so remote as to justify foreclosure of a municipality’s liability.”