Government Liability for Dangerous Roads by The Stritmatter Firm

GOVERNMENT LIABILITY FOR DANGEROUS ROADS Keith L. Kessler Ray W. Kahler Stritmatter Kessler Koehler Moore

Was this T-bone crash caused solely by driver inattention, or did the unsignalized intersection play a critical role?

Was this head-on collision on a rural highway solely the fault of a tired driver, or did the history of centerline cross-over crashes here warrant installation of a Jersey barrier?

The Duty to Eliminate Hazards on Our Roads The law is clear: our street and highway departments have a “duty to provide reasonably safe roads and this duty includes the duty to safeguard against an inherently dangerous or misleading condition.”1 The government’s duty specifically includes removing or correcting hazardous conditions that make a road, street, sidewalk or bridge unsafe for ordinary travel.2 Once a roadway is shown to be unsafe, the burden shifts to the governmental entity to identify the steps it took to repair or correct the hazardous condition.3 This duty to eliminate hazards extends to roadway geometrics, warning signs, intersections, roadway surface friction, shoulders, traffic signals, guardrails, median barriers, clear zones and the elimination of sight obstructions (especially at intersections).

Owen v. Burlington Northern and Santa Fe Railroad Company, 153 Wn.2d 780, 787-788, 108 P.3d 1220 (2005). See WPI 140.01. 2 WPI 140.01.01. 3 Owen, 153 Wn.2d at 789 (“If the roadway is inherently dangerous or misleading, then the trier of fact must determine the adequacy of the corrective actions under all of the circumstances”). 1

The public “has a right to proceed on the road, street, bridge or sidewalk with the assumption that it is safe for travel until he or she knows, or in the exercise of ordinary care should know, to the contrary.”4 There is no sovereign immunity for governmental entities in Washington. The negligent design, maintenance or operation of streets and highways subjects the responsible governmental entity to liability for crash-related injuries “to the same extent as if it were a private person or corporation.”5

Dangerous Roadway Conditions For nearly 50 years, our SKKM Highway Design Team has led the Pacific Northwest in holding the State, cities and counties liable for hazardous road conditions that caused or contributed to crashes, with resulting serious injuries and deaths to vehicle occupants, motorcyclists, bicyclists and pedestrians. Below are examples of some of those cases.

Clear Zones The shoulders of our highways are to be stripped free of such hazards as trees, utility poles and boulders – anything that could cause injury to the occupant of a car that, for any reason, left the roadway. The Federal Highway Administration (FHWA) and the American Association of State Highway Transportation Officials (AASHTO) have designated these areas along our highways and even rural roads as “Clear Zones” and “Lateral Recovery Areas”. The AASHTO Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, that is to be available for safe use by errant vehicles. The minimum width of the clear zone in all cases is 10 feet, and widens as the speed limit and traffic volumes increase. The State’s requirements for clear zones are set out in Chapter 1600 of the WSDOT Design Manual M 22.01.20 (September 2021).

4 5

WPI 140.03. RCW 4.92.090; RCW 4.96.010.

Cars end up using the highway shoulders and non-roadway surface outside the traveled lane for a variety of reasons. A driver may pull off because of a mechanical problem or flat tire, or to rest or use a cell phone. A deer or other animal may suddenly run out onto the roadway, and an evasive maneuver is needed, using the area off the road to avoid injury. Or a tired driver may simply nod off, as can occur on late night journeys. The roadside is to be forgiving; we are, after all, merely human.

Guardrails and Median Barriers As discussed in “Clear Zones” above, governmental entities have a duty to eliminate potential hazards alongside our roads. Where a hazardous condition can’t be removed, the roadway authority must, by law, protect the public from the hazard. A common, long-proven solution is the guardrail. A 4,500-lb. vehicle approaching W-beam guardrail at a 25° angle at a speed of up to 70 mph will be deflected and re-directed to half the entry angle, with only mild injuries to vehicle occupants.

The most deadly consequence of a dangerous road is of course the head-on collision, when a car crosses the centerline or travels through a narrow median into oncoming traffic. A solution for this hazard is the concrete Jersey barrier. First installed in New Jersey in 1955, by 1959 its design had developed to its current shape – 32 inches high, with the first two inches rising vertically from the pavement, the next 10 inches rising at a 55° angle, and the remainder at an 84° angle.

It’s estimated that these median barriers – both W-beam and Jersey – have saved hundreds of thousands of lives in re-directing errant cars that would otherwise have crossed through the median and crashed head-on into an oncoming car. Case Example: Cross-over Fatal Crash Originally constructed in 1970, State Route 522 consisted of one northbound lane and one southbound lane. Traffic volumes built rapidly over the next 30 years. In the early 2000s, WSDOT determined that, due to a number of collisions in which cars crossed over the centerline and struck oncoming traffic head-on, the highway should be widened to four lanes with a protective barrier down the median. As of 2014, SR 522 consisted of a 16-mile section in the south segment that consisted of four lanes and a median barrier protecting against cross-over collisions. The north four-mile segment from the Snohomish River to Monroe also consisted of four lanes with cross-over protection:

But the center section, three miles in length, consisted of only two lanes, one in each direction, with no vehicle cross-over protection such as a barrier:

Although it had provided concrete Jersey barrier to prevent cross-over collisions on over 20 miles of SR 522, its excuse for leaving the three miles of the middle segment without any protection was that it didn't rank high enough on the Priority Array. This was in spite of the fact that, as early as the 1980s, the State had determined that SR 522 was a dangerous highway in its entirety, and for the sake of the safety of the traveling public, it should be widened and a barrier installed to end cross-over head-on collisions. A WSDOT memo referred to SR 522 as a “Highway of Death”.6 On June 16, 2014, Stanley is driving southbound on SR 522, with his wife Joan as his passenger. The defendant-driver is approaching from the opposite direction, heading northbound on SR 522. The time is 3:00 in the afternoon. As he approaches a slight curve to the left, the defendantdriver becomes sleepy, and his car drifts onto a grassy shoulder. He is abruptly awakened when the front of his car strikes an orange construction barrel. He swerves sharply to the left, and his car travels across his northbound lane, and into the oncoming southbound lane, striking Stanley and Joan’s vehicle head-on.

WSDOT, SR 522/SR 9 to SR 2, MP 1409 to MP 2468, Median Barrier Benefit/Cost Analysis: “SR 522, due to its past history of crossover accidents, has earned the titles of ‘Killer Highway’ and ‘Highway of Death’ in the local community.” 6

Both Stanley and Joan are killed.

Case Example: The Earth Berm Failure Nearly as deadly as a cross-over head-on collision is traveling into the median and crashing into an overpass pillar at freeway speed. In 1973, without having conducted proper research, a WSDOT official orders his staff to use earth berms on state highways because they’re aesthetically pleasing and will “gracefully divert an errant auto”.

The compacted dirt slope is supposed to redirect a car away from overpass support columns in the median. According to State Patrol troopers who respond to one fatality, the earth berm in fact serves as a “ramp” that directs the car straight into the overpass pillar:

The State’s earth berm is tested at the Texas Transportation Institute, where it fails national safety standards for roadside barriers. The Center Drive freeway overpass in Dupont is constructed in 1997, using an earth berm instead of guardrails around the pillars that support the overpass above the freeway. To its credit, WSDOT determines that it needs to fix and replace all of the 198 earth mounds it had created in the state. In 2006, the Legislature provides funding for this work on a high priority basis, to be completed by 2012. On October 12, 2013, the driver of a Volkswagen Jetta attempts to change lanes. Upon realizing that there is a vehicle already in the lane to her right, she turns sharply left, over-correcting, and her car enters the median. It then slides along the earth berm directly into the Center Drive overpass pillar. Once again, the earth berm fails to provide any redirection. A proper barrier would have prevented the crash.

Not only is WSDOT without any justification for having failed to install the barrier, it has no idea what happened to the money it was provided for the project. A fault-free passenger in the car sustains a spinal cord injury. The State is forced to admit that it is at fault, and agrees to pay $28 million to care for her needs. An accident reconstructionist with expertise in guardrails and median barriers readily demonstrates that a concrete barrier here would have redirected the errant vehicle with few or no resulting injuries:

The necessary concrete barrier is later installed. 12

Intersections The primary challenge created by intersections is that they are at-grade areas of conflict. Unsignalized intersections leave drivers at risk of crashes caused by human error. A driver waiting on a minor road to cross a high-speed arterial has to guess at the speed of the vehicles on the arterial, and determine whether a gap in traffic is large enough to make it across without being struck. Addressing chaotic intersections includes options ranging from installing traffic signals (with allway stop signs as an interim measure), to closing off the intersection. Whether these measures are justified is determined by the collision history (available from the Washington State Patrol) and, to a lesser degree, average daily traffic volumes. WSDOT has developed signal warrants that assist in determining whether or not a traffic signal should be installed at an intersection with a significant crash history. But, as addressed below, other options are available to government entities that can effectively reduce intersection collisions. Case Example: Poor Location of Stop Sign One cause of intersection collisions is the improper location and/or maintenance of a stop sign, either partially obscured by vegetation, or installed at a location that doesn’t allow an adequate sight-distance response for a driver unfamiliar with the intersection. Mason County -- minor road intersects State Route 3. Driver unfamiliar with the area rounds a curve.

Invisible to the driver is a stop sign off to the right in a vegetation-filled gulley. The stop sign isn’t visible until the driver is only 84 feet away from it. Unable to see the stop sign in time to stop as she travels around the curve approaching SR 3, the driver continues into the northbound lane of the highway. According to her husband, she says “What’s this?” and slams on the brakes. Her car is struck on the driver side in the northbound lane of SR 3 by a one-ton pickup truck towing a fifth-wheel trailer.

She is slumped over the steering wheel and unresponsive, and is airlifted to Harborview with a severe brain injury. Because a guardrail is damaged in the crash, the State sends an invoice to the brain-injured driver and her husband, demanding payment for repairs. This billing statement serves only to provoke an investigation by her husband into the improper location of the stop sign and the inadequacy of warning signs. Suit is filed against the State of Washington and Mason County for operating an unsafe intersection. To its credit, WSDOT responds and takes measurements. It recognizes the inadequacy of the stopping sight distance for a driver approaching the intersection, and installs a stop sign on the left side of the lane that can be seen in time to respond by stopping before reaching the intersection.

Case Example: Sight-Obstructing Vegetation at Intersections With the sun out on a warm Friday afternoon, Guy rides his Harley-Davidson Softail motorcycle southbound along Avondale Road, near Woodinville. He is extremely experienced, having operated motorcycles for decades. Guy has the right-of-way as he approaches the intersection with NE 159 th. As is his custom when approaching intersections, he keeps an eye out for potential conflicts. There are no vehicles on the 159th side street visible at the time. As he enters the intersection, the left front bumper of a car suddenly emerges from behind a wall of overgrown blackberry bushes, and drives directly into his path -- in “less than a second”. 15

The car smashes into his right leg and catapults him 46 feet through the air. His head slams into the ground, causing damage to his brain, even though he’s wearing a helmet. His right leg and ankle sustain multiple severe fractures. His lower right leg is almost completely severed. Emergency personnel at the scene find Guy unconscious with gurgling respirations and convulsing with seizures. They transport him to Harborview Regional Trauma Center. The other driver had approached the intersection traveling easterly on 159 th Street. She reports that she stopped her car at the stop line, looked both ways (south and north), did not see Guy’s motorcycle approaching, and started her left turn onto Avondale Road. This put her directly in the path of Guy’s southbound motorcycle, and there was no time to avoid the crash. A King County Police Detective takes a recorded statement from the defendant-driver just after the collision: I was stopped at the intersection of Avondale and NE 159 th at the stop line looking for traffic. I sat there for quite a while, I waited until it was really wide open. And I pulled out to make a left turn onto Avondale and when I got probably halfway through the lane closest to me there was a motorcyclist in front of me and I hit him.

At the location of the stop line and accompanying stop sign, her view of traffic approaching on Avondale Road is obstructed by the overgrown wall of blackberry bushes:

In response to the suit filed against it, King County argues that its responsibility is restricted to problems with the road itself; that the blackberry bushes are on private property; and most importantly, there are many thousands of intersections throughout state that couldn’t possibly be addressed by municipalities if they had to clear sight-obstructing vegetation. The Washington Supreme Court rejected the County’s claim of undue burden: A municipality’s duty to maintain its roadways in a reasonably safe condition for ordinary travel is not confined to the asphalt. If a wall of roadside vegetation makes the roadway unsafe by blocking the driver’s view of oncoming traffic at an intersection, the municipality has a duty to take reasonable steps to address it. Wuthrich v. King County, 188 Wn.2d 19, 23, 366 P.3d 926 (2016). reiterated its holding for emphasis:

The Wuthrich court

In sum, we reaffirm that a municipality has a duty to take reasonable steps to remove or correct for hazardous conditions that make a roadway unsafe for ordinary travel and now explicitly hold this includes hazardous conditions created by roadside vegetation. Id. at 27. Eliminating vegetation at intersection approaches is clearly the law of Washington. Eliminating Intersections

A governmental entity should not be heard to try to justify a hazardous intersection, whether for budgetary reasons or a claimed lack of alternatives. Even poverty is not a defense to tortious conduct. “The duty of care owed to another does not change according to a party’s financial situation.” Bodin v. City of Stanwood, 130 Wn.2d 726, 743, 926 P.2d 240 (1996) (Johnson, J., dissenting joined by three other justices and Justice Alexander’s concurring opinion to form a majority on this point). Second, governmental entities have the power to close a hazardous intersection: “If resources are insufficient and a road is unreasonably hazardous, the State has several options…. In the most serious situation, the State can close the road.” McCluskey v. Handorff-Sherman, 68 Wn.App 96, 108-109, 841 P.2d at 1300 (1992). Case Example: Closing Dangerous Intersections and Re-routing Traffic History -- A US 195 Corridor Safety Improvement Study by WSDOT in 1999 reports that “the Thorpe Road intersection has been identified as a ‘Hazardous Accident Location’”. Most of the collisions at the intersection involve traffic attempting to turn left or cross US 195: “Conflict associated with the slow-moving entering, turning, and exiting traffic mixing with the high speed freeway traffic is the primary cause of the increasing accidents.” WSDOT repeatedly identifies the Thorpe Road intersection as a “Hazardous” and “High Accident Location” in 2000, 2002 and 2004, and as a “Fatal Accident Location” from 2006 through 2009. A 2009 WSDOT report again characterizes the Thorpe Road intersection as having “unacceptable congestion and safety problems”. WSDOT is not alone in its concern that the Thorpe Road intersection is dangerous – several citizens repeatedly complain to WSDOT about the hazardous conditions here, including being “nearly killed”. The Fatal Crash -- On September 5, 2015, Bradley Brower is driving eastbound on Thorpe Road, intending to cross US 195. He has four passengers in his PT Cruiser. Once he reaches the stop sign on Thorpe Road, he stops, looks both ways, waits for traffic to clear, and then attempts to cross US 195. As he crosses, a northbound pickup approaches the intersection with Thorpe Road. The PT Cruiser continues crossing through the median between the southbound and northbound lanes. As was the case in many prior “at angle” crashes here, he then undertakes to cross the northbound lanes. At that point, the northbound pickup enters the intersection and crashes into the passenger side of the PT Cruiser, causing it to violently rotate clockwise and strike a power pole.

Yet another Thorpe Road intersection collision -- this one taking the lives of three young women, and leaving the husband of one with multiple injuries. The State had taken no action to eliminate the hazardous condition of this intersection, even though it knew about the danger here for more than 15 years before this latest fatal crash. Epilogue -- Although under Owen v. Burlington Northern, supra, Plaintiffs have no obligation to show what could have been done to effectively address the hazardous conditions inherent in this intersection, it is worth noting that WSDOT had the means available to it to correct the danger. The State has for many years included alternative intersection designs in its Design Manual, including a “Right-in Right-out” means of re-directing traffic when left-turn or crossing maneuvers are dangerous at an intersection. The use of a Restricted Crossing U-Turn (RCUT) or J-Turn intersection is one alternative to traditional roadway intersections on a four-lane highway. Instead of motorists trying to cross fast-moving lanes of traffic approaching from the left and right, drivers at a J-Turn intersection turn right and merge with traffic; then move into the left lane; and finally execute a U-Turn through the median in the direction they intend to travel. The J-Turn intersection design has been in use in a number of states for more than 25 years.

Source: WSDOT Design Manual (November 2007), Figure 910-2b Although drivers have to travel slightly further to get where they want to go, the J-Turn closes the hazardous intersection, ends high-speed at-angle collisions, and ultimately takes the same or less time as that spent waiting for a safe gap in oncoming traffic. The State ultimately employed an RCUT/J-Turn design at the Thorpe Road intersection in 2019. There have been no further at-angle or fatal collisions since that time. Roadway Maintenance/Pavement Edge Drop-off Inadequate inspections of roadway edges, and a lack of action to repair them, often cause crossover head-on collisions when a right front tire drops off the roadway edge and the driver overcorrects by steering sharply to the left to get back on the roadway, swerving across the centerline and into oncoming traffic. This roadway edge drop-off also presents a serious challenge for motorcyclists and others who end up losing control upon encountering this hazard. Case Example: Deteriorated Asphalt Road Edge The On-ramp and Shoulder -- WSDOT designed and operated the SR 14 eastbound highway onramp. Approximately 200 feet up the on-ramp on the right side, the asphalt pavement edge is seriously deteriorated, consisting of a sharp pavement edge drop-off and hole more than six inches deep.

Although WSDOT performed work along that on-ramp over the years, including striping the onramp just weeks before the crash in this case, it took no steps to repair the deteriorated asphalt edge. In fact, because the pavement edge had broken away along the fog stripe, WSDOT at one point repainted the fog stripe so that it curved around the drop-off where the prior fog stripe had run, demonstrating that it was aware of the hazard:

The Crash -- On September 7, 2013, Plaintiff is operating his motorcycle, accompanied by two other motorcyclists. The motorcycles travel southbound along SE 164th Avenue in Vancouver, Washington. Plaintiff stops at a red light at the 164 th/SR 14 on-ramp intersection, observes that one of the cyclists is far behind, and decides to make a left turn onto the on-ramp and pull over onto the shoulder to wait for his friend to catch up. Once the light turns green, the Plaintiff proceeds left onto the on-ramp and heads toward the shoulder. As he slows to pull onto the shoulder to stop and wait, the front wheel of his motorcycle suddenly drops into a deep hole at the pavement edge and strikes the far edge of the hole. This causes the front of the motorcycle to lift up and become airborne, followed by the rear tire then striking the far edge of the hole and raising the rear of the motorcycle. This pitches the front of the motorcycle downward, throwing Plaintiff’s body into a guardrail where he sustains multiple orthopedic injuries. The sharp contact with the asphalt at the far edge of the pothole is hard enough to bend the front wheel: 22

Violation of Pavement Edge Drop-off Standards -- The Federal Highway Administration published Safety Impacts of Pavement Edge Drop-offs in 2006. The report states as follows:7 When a vehicle leaves the travel lane, pavement edge drop-off poses a potential safety hazard because significant vertical differences between surfaces can affect vehicle stability and reduce a driver’s ability to handle the vehicle. …. The United States Department of Transportation (DOT) suggests that a drop-off with a vertical differential of 3 in. or more is considered unsafe (USDOT 2004). The FHWA study surveyed various states on their practices with regard to inspecting roads for pavement edge drop-offs and reported that Washington considers any pavement edge drop-off greater than 2 inches to be a concern. Consistent with this, WSDOT’s Maintenance Accountability Project Data Collection Manual states that any shoulder edge drop-off of 2 inches or greater should be recorded as part of a maintenance inspection.

FHWA Report at 11, 21.

The study concluded with several recommendations, including the following:8 Agencies should adopt a policy for shoulder maintenance that includes routine comprehensive sampling procedures and requires prompt remediation of any edge dropoff that meets or exceeds a prescribed threshold. That threshold should be no higher than 2.0 in. The AASHTO Roadside Design Guide (2002), states: “Desirably, no vertical drop-off greater than 50 mm (approximately 2 in.) should occur.” It further directs that pavement edge drop-offs greater than 75 mm (approximately 3 in.) should not be left overnight. WSDOT Held Responsible -- The Thurston County Superior Court jury’s $2.993 million verdict exceeds the amount recommended by Plaintiff’s counsel. The foreperson reports to the Assistant Attorney General who tried the case that the jury is upset at the lack of care evidenced by WSDOT in failing to fulfill its duty to properly inspect and maintain our roads.

Slippery Roadway Surfaces

Reduction in the co-efficient of friction between tire and roadway surface caused by precipitation presents a challenge of its own without the danger of a roadway surface that's worn smooth or has developed wheel ruts over years of neglect. With a strong or steady rain, wheel ruts fill with water and cause hydroplaning -- an extreme danger on higher speed freeways.

Id. at 124.

WSDOT’s monitoring of slippery road conditions has been conducted with a truck that measures the friction surface of the roadway. Of particular concern is worn Portland Cement Concrete panels that must be replaced, rather than simply repaved as is done with asphalt. A potential result of worn cement panels is a cross-over collision when it rains, with fatal consequences.9

Slippery Bridge Grates

Similarly, metal bridge grates can become dangerously slick over time. Where the friction studs have been worn down, vehicles traveling across the bridge that encounter wet grates may slide head-on into oncoming traffic. Solutions are regular inspections of bridge grates, and welding new rivets or installing serrated grating to provide adequate friction in wet weather. Hazards for Bicyclists The municipality’s duty to provide reasonably safe roads extends to bicyclists. See Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 319 P.3d 987 (2014); O’Neill v. City of

See, e.g., McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 882 P.2d 157 (1994) (Mustang’s tires lost traction on wet concrete roadway that had been worn smooth over decades of use; car slid across 5-foot median and struck Wallace McCluskey’s car, forcing it down an embankment; McCluskey was thrown from his car and died at the scene). 9

Port Orchard, 194 Wn.App 759, 772, 375 P.3d 709 (2016) (“…the City has a duty to maintain its roads for bicycle travel”).

Too often, municipalities’ public works departments inspect and maintain streets for cars, trucks and buses, ignoring hazardous cracks and grates that can produce serious injuries for bicyclists.

Case Example: Bridge Grate Gaps Background: The Montlake Bridge in Seattle, built in 1925, underwent a seismic retrofit project in 1999, resulting in the replacement of steel grate panels along the bridge deck. The contract plans for the deck replacement required a .5ʺ width for the two longitudinal seams between the three sets of deck panels.

Although WSDOT had inspectors on site to ensure compliance with contract specifications, they likely viewed the deck as a surface for motor vehicles, forgetting that bicycles constitute a lawful element of the traffic population crossing the bridge deck. As a result, the seam between grid panels exceeded .5ʺ in places. The Plaintiff is an extremely experienced cyclist, having bicycled in challenging events throughout much of Europe. On a clear Sunday morning in October, he rides his bicycle onto the Montlake Bridge, transitioning from the right, outside lane to the inside lane. His intention is to turn left shortly after crossing the bridge.

Three-quarters of the way across the bridge, his .8ʺ front wheel drops down into the seam between two adjoining steel grate panels, and then quickly becomes wedged as the seam 27

narrows. With his bicycle stopping so abruptly, he is thrown over the handlebars and onto the bridge deck. Upon striking the hard surface of the deck, his spine sustains severe injuries, leaving him paralyzed and immobile. Case Example: Broken Sidewalk Again, the Montlake Bridge. Whereas in the above case the State had suggested that the cyclist should have been on the sidewalk rather than the bridge grates, here the cyclist is in fact traveling on the bridge sidewalk when he encounters a sunken sidewalk panel that abruptly stops his bike’s slightly turned front wheel, throwing him over the handlebars and onto the concrete sidewalk, causing quadriplegia.

Pedestrian Safety As with the conflict created by an unsignalized intersection in which vehicles going in different directions have the potential of colliding, the pedestrian crossing a street or roadway is at risk of collision, but with a 4,000-lb. mass of steel hitting a human body. Given this potential consequence, the importance of properly locating and upgrading crosswalks cannot be overstated.

A pedestrian crossing a roadway at any point other than within a crosswalk must yield the rightof-way to all vehicles upon the roadway.10 On the other hand, because the law directs pedestrians to use crosswalks when crossing streets, 11 a pedestrian within a crosswalk has the right to assume that all drivers of approaching vehicles will yield the right-of-way to the pedestrian.12 Of major concern is the mid-block crosswalk. Drivers don’t expect it, and pedestrians feel as though they’re protected by the painted crosswalk stripes. A simple, inexpensive means of resolving this conflict is the pedestrian-actuated signal:

This flashing beacon system has been proven to be extremely effective in alerting drivers to the presence of a pedestrian about to cross or in the crosswalk itself. This pedestrian-actuated signal is far superior to the static crosswalk sign that identifies the location of a crosswalk, but fails to indicate the presence of pedestrians. Similarly, the flashing amber overhead light that operates continuously over a 24-hour period serves the same purpose of identifying the location of a crosswalk, but says nothing about whether the crosswalk is in use. Case Example: Poorly Lit Crosswalk Classes at Clark College in Vancouver, Washington begin at 7:00 a.m. In January, students have to cross Fort Vancouver Way in the darkness, and are forced to depend on street lighting for their safety. At the time of the subject incident, Fort Vancouver Way has no street lighting for the entire west half of the 100-foot crosswalk. Soft lights exist in a neighboring parking lot to the west, but the light does not extend to the crosswalk. It’s not until a pedestrian is more than halfway across the RCW 46.61.240(1). See Xiao Ping Chen v. City of Seattle, 153 Wn.App 890, 223 P.3d 1230 (2009). 12 Jung v. York, 75 Wn.2d 195, 198, 449 P.2d 409 (1969); Clements v. Blue Cross of Washington & Alaska, Inc., 37 Wn.App 544, 682 P.2d 942 (1984); RCW 46.61.235. 10 11

street and into the northbound lanes that the single street lamp to the east directs any light onto the crosswalk.

A little before 7:00 a.m. on a January morning, a French exchange student exits a city bus, and enters the crosswalk in the darkness. She first crosses the bus stop lane, and then the outside lane for southbound traffic. While crossing the third lane, she is struck by a Mazda. Her left side is battered by the force of steel traveling at 27 mph. She is knocked through the air, with her head smashing into the windshield. Her body is then slammed to the pavement. Because of the darkness of the crosswalk and the lack of streetlights, the Mazda driver has no idea that the student is even in the crosswalk. Only when the pedestrian’s head shatters her windshield does the driver realize that she hit something or someone. The City of Vancouver initially denies liability for an unsafe crossing area, claiming that the student was jaywalking at the time. A biomechanical engineer establishes, through laws of physics and biomechanics, that she was, in fact, in the crosswalk when she was struck. The City of Vancouver ultimately pays for the student’s injuries, including significant brain damage. She has returned to her home in LeHavre, France.

***** Conclusion – Holding Government Accountable Given our heavy reliance on cars and trucks for daily transportation, the safety of our families, friends and neighbors depends on governmental entities complying with the common law requirement that they eliminate dangerous conditions on our streets and highways. Tukwila acknowledges that it has a duty to provide reasonably safe roads and this duty includes the duty to safeguard against an inherently dangerous or misleading condition. A city's duty to eliminate an inherently dangerous or misleading condition is part of the overarching duty to provide reasonably safe roads for the people up this state to drive upon. Owen v. Burlington Northern and Santa Fe Railroad Company, 153 Wn.2d 780, 787-788, 108 P.3d 1220 (2005). Too many people are seriously injured because of bad roads. Too many families get the phone call that they’ve lost a loved one down an unshielded embankment, or to a collision at an uncontrolled intersection, or while trying to walk across a high-volume street without the protection of a traffic signal. Through vigorous representation of our clients, and aggressive efforts to hold government accountable, we can reduce suffering. We can make a change.