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Road Liability "reform"

Responsibility for unsafe roads:  The most extreme majority of the Michigan Supreme Court has launched a five-year crusade to eliminate the rights of victims injured by the errors of government actors.  In May of 2007, they took one more step in that direction by overturning several decades of established Supreme Court decisions addressing the notice requirement for road defects.

The statute allowing injured citizens to sue if they are hurt by an unsafe road allows suit only if the road authority receives a detailed notice of the claim within a couple of months of the injury.  When the Supreme Court interpreted this statute on several occasions in the past half-century, it held each time that the short notice period was only Constitutional and legal if it was applied only if the road authority could prove that it suffered prejudice as a result of not receiving notice:  after all, the purpose of the notice requirement was to assure that the unsafe condition could be investigated and relevant evidence preserved by the road authority.

This month, the Supreme Court overturned these long-standing decisions and held that the Road Authority can require the dismissal of any claim where it did not receive the early notice--even if it was on the scene within hours and had completely preserved and documented the evidence.  Of course, this decision has nothing to do with preserving "justice", since the pre-existing decisions protected both victims and the road authority of no notice was given and evidence was lost.

This case should be considered alongside decisions that interpreted "reasonably safe road" to include only the road bed, and NOT signs, traffic control devices, or even road shoulders.  The conservative minority says that the statute applies only to road bed maintenance, and not to design characteristics.  It doesn't apply to depressions in the road surface, if they are made slippery by ice or other material, because in that case the "cause" of the problem is the slippery material--NOT THE DEPRESSION THAT ALLOWED IT TO ACCUMULATE.  (We used to believe that this kind of decision about "proximate cause" was a jury decision.)

If the Road authority notices a stop sign knocked down, and decides to fix it in ten months out of next year's budget, it bears no liability for the road remaining unsafe for the rest of the year, because the sign "is not a part of the road".  Whether the downed sign (or any other excluded condition) causes 1 death or dozens, the Road authority never becomes responsible.

The road ends in a rural lake with inadequate warning?  No responsibility, because that represents a "design" flaw--even if a doctor and her three kids drown as a result.  No matter that they are not the first fatality at the site and the Road authority has had years to fix it but does not.

A Traffic control signal continues to malfunction, leading to intervals of conflict at a busy intersection:  sorry, not a "road condition"; no one is liable.  Inadequate barricading at a construction project?  Sorry, the road isn't open for public use--only for local use.  The misleading design of a highway regularly results in people misunderstanding a freeway exit and stiking a T at freeway speed without warning?  Doesn't matter how many fatalities result:  no duty to re-sign or redesign.

Railing missing or not repaired:  not the roadbed; no liability.  The shoulder is deeply rutted or has an exposed culvert:  these wise justices decided that it was designed for travel, so no responsibility.

We have argued for years that it makes no sense to protect government actors from carelessness or stupidity.  The cost of governmental mistakes should be borne by all of us--through the at fault authority--rather than by the victim.  Unfortunately, our representatives have chosen a far less altruistic, less "Christian", approach which apparently meets with the approval of uninjured taxpayers who have been misled by insurance propaganda.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262