Court rules highway warnings sufficient safety measure

PHOENIX -- State agencies don't have to keep highways free of unreasonably dangerous hazards if they simply warn motorists about them, the Arizona Supreme Court ruled.

In a decision one justice said has serious implications for public safety the majority concluded the Department of Transportation has no legal obligation to upgrade roads, bridges or other structures if they were built to the standards in effect at the time of construction.

More to the point, the court concluded the fact that traffic patterns have changed and speed limits have been increased does not require the state to upgrade the roads. All ADOT need do, the court concluded, is provide "adequate warning' of the dangers.

Friday's ruling drew a rebuke to his colleagues from Chief Justice Scott Bales. He said the ruling "effectively replaces the state's duty to keep its highways reasonably safe with a duty to warn the public that highways have become unreasonably dangerous.'

According to court records, a motorist driving east on I-10 in 2007 on the heavily traveled stretch between Tucson and Phoenix was attempting to pass a truck when the truck moved into her lane, forcing her onto the shoulder. When she attempted to drive back onto the highway she lost control of the vehicle, went across the media and into oncoming traffic.

Her vehicle crashed head-on into a van occupied by Diana and Michael Glazer and their young daughter. The husband was killed and the wife was seriously injured.

Attorneys for ADOT argued they had no liability because a median barrier was not required when the highway was designed and constructed in 1967. And according to ADOT spokesman Tim Tait, there are none on that stretch now.

Justice Ann Scott Timmer, writing for the majority, cited a 1984 law which says the state is not liable for injuries out of design, construction or maintenance of roads "if the plan or design is prepared in conformance with generally accepted engineering or design standards in effect at the time.' And here, Timmer said, the highway in 2007 was as it was in 1967.

Bales, however, said that is missing a key point: Conditions in 2007 were not as they were four decades earlier.

"Traffic volume increased to about 55,000 vehicles daily, more than three times the number the plan had projected for 1997,' he wrote. And by 2007 the speed limit had been raised to 75 miles an hour.

But Timmer said it would be impractical to require the state to upgrade its roads to meet new conditions, whether higher speed limits or increased traffic.

"Arizona has thousands of miles of state, county, and municipal roadways, and material changes to travel conditions like speed limits and traffic congestion occur over time that may make roadway designs outdated,' she wrote. "But public entities have limited resources to bring all roadways into compliance with current design standards and must prioritize needs.'

In this case, however, the high court upheld the $7.8 million verdict against the state.

Timmer said while there's no liability for failing to upgrade the road, that 1984 law has another provision. It says that if public entities want immunity from suit, they must show that "if any unreasonably dangerous hazards exists, a reasonably adequate warning was given that would have allowed the public to take suitable precautions.'

And that, she said, was not done here.

Timmer said there was evidence that lack of a barrier, coupled with changes in travel since construction, made the median in the area dangerous, as shown by an unusually high number of cross-median accidents in the area.

"In light of this evidence, a reasonable person could have found that the open mean in the accident area was an 'unreasonably dangerous hazard,' ' she wrote. Timmer said that, in turn, put the obligation on the state to show it had given "adequate warnings' if it wanted to escape liability.

"But the record does not show that the state gave any warnings,' the justice said. In fact, she said attorneys for the state do not contend they would have offered such evidence.

Timmer said nothing in the 1984 law -- and Friday's ruling which relies on it -- gives state and local agencies carte blanche to ignore problems.

"The defense does not relieve the state from performing ordinary repair and upkeep on highways as needed to keep the traveling public safe,' she wrote. "Thus, in addition to providing warnings for unreasonably dangerous hazards, the state must protect the public, in a non-negligent manner ... against hazards that could be remedied through ordinary upkeep and repair.'

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