By on February 13, 2009

On February 13, 2004, two families in separate vehicles were driving at the “Four Corners” intersection of Highways 14, 34 and 63. These roads merge together on a sharp curve in a blind crossing without a stop or yield sign. The two cars collided nearly head-on, taking the lives of three and severely injuring four others. The surviving family members sued Darren Griese, in his official capacity as South Dakota Department of Transportation (DOT) Pierre Region Traffic Engineer. On Wednesday, the South Dakota Supreme Court issued a ruling absolving the state from any liability in cases where it fails to warn motorists about roadways with an inherently dangerous design.

The high court majority ruled that a state employee could not be held responsible for failing to maintain warning signs at the dangerous intersection because he was protected by sovereign immunity. The court reasoned that Griese had been operating as an expert with the discretion to post or not post signs as his personal judgment dictated. As long as no law required the posting of a sign, he was protected from any lawsuit.

“If the legislature or other policy maker has not demanded performance, the decision to act or not act is discretionary,” Chief Justice David Gilbertson wrote for the 5-2 majority. “One can only imagine the reaction of an average citizen if he or she . . . were ‘plucked off the street’ and informed it was now his or her legal duty to place ‘substantial and conspicuous warning signs’ at any ‘sharp turn, blind crossing or other point of danger . . .

“How much stronger would their reaction be when they realize that the failure to place a sign in every conceivable place would result in their being subjected to suit and criminal charge simply based on a plaintiff’s pleading disagreeing with the initial placement decision, and a jury being allowed to ‘Monday morning quarterback’ his or her conclusions . . .”

Justice Richard W. Sabers authored a scathing dissent. Sabers contended the duty to place signs at blind crossings was not only mandatory, failure to do so was a class one misdemeanor.

The disagreement was so sharp that Gilbertson and Sabers took a number of personal jabs at each other.

Sabers labeled the chief justice’s reasoning “preposterous” and cited past cases authored by Gilbertson that appeared to disagree with his present ruling. Gilbertson, in turn, cited cases where Sabers appeared to hold an opinion opposite to the one he now held. Sabers set the case up for challenge before the US Supreme Court by asserting that the majority’s decision violated the plaintiffs’ Seventh Amendment right to a jury trial on the material facts involved in the case.

“Incredibly, under the majority’s view, the highway department could arbitrarily, unreasonable and capriciously design the busiest, most dangerous intersection in South Dakota with inadequate signage or signage that goes out of repair, as here, and never be accountable, despite numerous injuries and deaths, year after year,” Sabers wrote.

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20 Comments on “SD Ducks Blame for Dangerous Intersection...”


  • avatar
    psarhjinian

    When I read the headline, I thought the problem was ducks causing accidents.

  • avatar
    MikeInCanada

    My first question would have to do with the ‘expertise’ of the official responsible for signage (or the lack thereof). Unless his/her resume is full of planning or engineering experience and training there could be a problem…..

  • avatar
    Detroit-Iron

    Is anyone liable for the poor design of the intersection in the first place?

  • avatar
    Kurt.

    Although I never had an accident at one of these foolish intersections, I have noted a few that were on the verge of being criminal in their design. In Asheville, NC I was discussing this issue with a (lawyer) friend and had his 7 year old kid redesign the offending intersection.

    I rather drive on the kid’s road.

  • avatar
    gamper

    Most if not all states will have some sort of sovereign immunity doctrine. Many states have special claims courts just for actions against the state. The deck is always stacked in the States favor. Some states may make statutory exceptions for failure to warn or for gross negligence, but I think they are universally difficult cases to win.

    It is really difficult to take sides without being familiar with the intersection. If warnings were so necessary, I submit that this would not be the first fatality.

  • avatar
    carlisimo

    A licensed civil engineer can be charged with tort or criminal negligence. I hope to be one within a year, for some reason.

    But it’s hard to determine that a road design has failed (as opposed to a building that falls down in a rainstorm). Some are safer than others, sometimes because of the designers’ skill but usually because of geography. You also have to ask if a Stop sign would have been excessive and if a Yield sign would have had any effect. Signs that are excessive end up being ignored, and engineers do take human behavior into account. You can’t design something that only works if users follow directions perfectly and expect to be clear of any liability.

    It was probably a grave error not to put a sign of any sort there, and the case deserved to be heard. He could still have his license suspended for all we know. But road designers have it tough with all the constraints that they have to work with. It’d be hard to show that he didn’t meet the standard of care when he designed the intersection.

  • avatar
    JoeEgo

    Google maps does not provide much detail on that intersection, though even a top-down view doesn’t provide enough information to understand the local visibility issues.

    http://maps.google.com/?ie=UTF8&ll=44.370266,-101.122949&spn=0.011059,0.019312&z=16

  • avatar
    gslippy

    I’m with Gilbertson and the majority. There would be no end to the victimhood in this country if the state were found liable.

    Any form of travel carries with it inherent risks, both known (other vehicles) and unknown (meteorites).

    I’d also argue that over-signage to protect the potential liability of the state employees would backfire. How many signs would be enough?

  • avatar
    James2

    Here in Hawaii we have a similar joining of two freeways… I’m just surprised there aren’t more accidents. When I’m on either road, I try to choose the lane farthest from the merge.

  • avatar
    Kevin

    I dislike the concept of sovereign immunity — if a business and a government entity did exactly the same thing that caused damages, you could sue the hell out of the corporation but not the government — what sense does that make?

    On the other hand, if we all could sue state employees for incompetence, then incompetent people would lose their last refuge for gainful employment, and we’d have to give them welfare. So really we just can’t win.

  • avatar
    Martin Albright

    So how many of you who oppose Soveriegn Immunity also complain about lawsuit abuse? Because you can’t have it both ways. If you think the legal system is slow now, just imagine what could happen if you could sue the state for negligence. Lawsuits are usually targeted at deep pockets and nobody has pockets deeper than the state. But if the state gets a judgment against it, who pays?

    You, the taxpayer, that’s who.

    So if SD gets, let’s say, a $10 million judgment against it, then one of two things happens: Either the people of South Dakota will have their taxes raised by $10 million to pay the judgment, or they will have the services that they’ve already paid for reduced by $10 million so the money can be used to pay the judgment. Or, perhaps the state has private insurance – which is of course, paid for by taxes.

    Either way it’s the taxpayers, not the “state” who loses.

    And who wins? Why, tort lawyers, of course.

    Still think Sovereign Immunity is a bad idea?

  • avatar
    sinrise

    I think the world would just crack in two is someone actually payed attention and took responsibility when they fail to. Those people died not because of bad design or lack of adequate signage, they died because they weren’t paying attention to the road. Too bad.

  • avatar

    I’m of two minds on this one.

    On one hand, I live in the state with the highest concentration of lawyers (a.k.a. ambulance chasers) in the country. Working the unions, the legal profession has bilked insurance companies/the taxpayer for billions, raising the cost of doing business to the point where you’d have to insane to base a biz within our borders.

    On the other hand, the I-95 / 95 split. If ever an intersection was/is patently, inherently dangerous, that was/is it.

    If someone had been able to sue RI or a state engineer to change the layout early in the split’s career, I’m sure that a couple of hundred serious accidents/ksi’s could have been prevented. In fact, I’d bet that the cost to the state in terms of emergency services provision alone was higher than a multi-million dollar payout– or the cost of better signage and/or a new design.

    It didn’t HAVE to be that way. It should NEVER have been that way. And maybe it WOULDN’T have been that way if some ambulance chaser could have sued the state.

    [How about a major interstate highway that suddenly acts like a curved road after what, 200 miles of relatively straight travel? Have a look at the barriers at the so-called “S Curves” or the huge sweeping curve on the other side of the city. Just as unforgivably, the the new 195/95 split has NO warning signage so that drivers can get in their lanes in a timely fashion. Drivers STILL cut across THREE lanes of traffic to get to their preferred highway in the last fifty yards.]

    In the end, my OCD wins. I want safe roads for stupid drivers.

  • avatar
    50merc

    RF, I agree we should have “safe roads for stupid drivers.” Often, it seems, roads are designed on the assumption drivers are familiar with the route, have excellent driving skills and will resist temptation to bend the rules.

    What the SD collision boils down to is the northbound car cut across the southbound lane, just as happens millions of times a day when drivers make left turns. Unless there was heavy fog or similar problem, it seems likely that the northbound driver saw the oncoming car but simply misgauged how quickly the two cars’ paths would cross.

    I glanced at Rand McNally’s map of Providence, RI, and it appears the problem RF mentioned is due to a “left lane is the exit lane” design. That’s contrary to usual practice, and I agree leads to surprising motorists.

    Finally, how did South Dakota decide this intersection is “four corners”?

  • avatar
    DeanMTL

    No one knows what the circumstances surrounding the accident really were. Screaming kids in the backseat and dad turning around threatening them? The other driver yapping on their cell phone?

    If this design is inherently dangerous, then there should be accidents happening on a repeated basis. At the risk of sounding callous, you can’t go around awarding everyone 10 million for every accident. Next time drive a little more carefully.

  • avatar
    N8iveVA

    in I-95 North in Northern Virginia, we have a split for the beltway and I-395. There are several (3 i think) large signs going over the highway starting 5 miles before the split, yet people still dangerously cross several lanes at the last second. People just DO NOT pay attention to the signs.

  • avatar
    63CorvairSpyder

    I think it’s Tom Daschle’s fault.

    Seriously, the intersection could have been built and largely unchanged from the 50s. Back in those days people drove slower, were probably more careful and there were far fewer cars on the road. Thus the design was probably fine for its time but not for today.

  • avatar
    thoots

    The reality of the sitution, in terms of “government doing something about it,” can be found on Page 20 of the legal brief, footnote 16, which reads, in part:

    “the accident rate at Four Corners is 1.08 per million users; the statewide average accident rate during this time period was 2.0 per million users; the 2.0 figure is also used by the DOT as a threshold to justify the spending of Road Safety Improvement funds.”

    Road safety improvements are usually prioritized by accident rates — those areas with high rates getting improved in order to reduce these rates. Since this intersection’s rate was below the state average, and below the threshold wherein improvements begin to be considered, the DOT was performing per its rules and policies, by spending safety improvement money elsewhere.

  • avatar
    Andy D

    Ever driven through Hartford CT on I- 84 ? The 1st time, ever for me was a horror show. Every other exit is a left hander. The exits are less than a mile apart. You encounter cars entering on the right , cutting across 3 lanes and exiting.

  • avatar
    Robert.Walter

    “DOT was performing per its rules and policies, by spending safety improvement money elsewhere.”

    Given the multiplicity of monies (grants and matching-funds) available out of Washington for these sorts of things, I am amazed that there was nothing available for better signage or milling rumble-strips into the pavement…


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