Road Defects

Few drivers give much consideration to the impact road defects can have on their driving experience. Unfortunately, that lack of consideration could prove fatal. While poor maintenance is an obvious and common road defect – leading to much griping by drivers after every winter when potholes seem to be at every turn – bad road design also is a common problem. Both conditions can lead to serious accidents, yet road defects don’t get the attention they deserve.

The Washington Post reported in 2009 that road defects, whether design or maintenance, were a factor in more than 50 percent of fatal traffic accidents nationwide. The Post article reported that such road defects were responsible for more traffic deaths than any other factor. That puts road defects ahead of speeding, drunk driving, and failure to use seatbelts. Despite the significant role road defects apparently play in traffic accidents, state and local governments all too frequently pay insufficient attention to such problems or fail to warn drivers of hazardous conditions.

Combined with a lack of warning of dangers, road design, and maintenance flaws can result in serious traffic accidents. In fact, a federal study found that when accidents could be attributed to road conditions, nearly a quarter of such accidents were the result of such design and maintenance problems as obstructed views, improper or missing signs and signals, defective road design, and other design- and maintenance-related problems, such as standing water.

A travel website found that a number of design and maintenance related problems can cause traffic accidents, including:

• Significant drop-offs at the edge of the pavement
• Improperly banked curves
• Improperly sited or no traffic signals
• Defective, damaged or missing guardrails
• Inadequate or no lighting
• Unrepaired potholes
• Significantly uneven pavement
• Poor drainage resulting in standing water on the road
• No road shoulder, very narrow shoulders, or steep shoulder drop-offs
• Improperly painted lane lines, overly faded lane lines, or inadequate or no reflective markers
• Insufficient or nonexistent warning signs or hazardous road conditions

Such design and maintenance flaws – and this list is by no means exclusive -- can render a road unreasonably dangerous.

Virtually all roads are designed, built and maintained by government entities, whether municipal, county, state, or federal. There are toll roads that do not fit into this description, but typically, a government agency built the road you are driving on. Often, more than one government agency is responsible, such as where a municipality or county designs, builds, and maintains a road, but does so with the assistance of state funding. Even where a road is built with funds from several levels of government – local, county, state, or federal – some activities, such as plowing snow or filling potholes, might be strictly a local responsibility. It can be complicated to determine which government agency or agencies are responsible for accident-causing road defects.

And once you determine what government agency is responsible for those road defects, you may be facing what is known as sovereign immunity (which applies to the state and federal governments) or governmental immunity, which applies to municipal, county, and other lower level governments. Basically, this immunity prevents you from suing the government except under limited circumstances. In general, there must be a statute permitting lawsuits against the state or other government entity.

In Georgia, the state has created a very narrow waiver of sovereign immunity under the Georgia Tort Claims Act, which states:

The state shall have no liability for losses resulting from:

. . .

(10) The plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design;

This provision essentially opens the state of Georgia to lawsuits in cases in which its design or engineering of roads was negligent. Most Georgia municipalities are likewise subject to lawsuits for such negligent design or maintenance. These waivers of sovereign immunity, though, tend to be narrow. If the government is not aware of a road defect, it likely will not be found liable for accidents caused by that defect. Of course, if the defect has caused accidents in the past or has existed so long that the government should have known about it, yet did nothing, the responsible government agency may still be found liable for the condition. Even then, in general, the government agency must have had enough time to correct the defect once it knew or should have known of the defect in order to be found liable.

Under certain circumstances, you might be able to pursue a claim for damages against the government agency based on defective design, construction, or maintenance of a road. Further, though, at least one law review article takes the position that failure to warn of hazardous conditions might be more important than faulty design or maintenance problems when it comes to recovering damages.

Where there are no warning signs or such signs are not visible because of damage, poor placement, or overgrown roadside vegetation, the failure to warn of hazardous conditions could be more important in deciding liability than the problem of which signs should warn. These problems could include standing water on roadways where such a condition is common, overly narrow road shoulders, uneven or rough pavement, areas with ongoing construction, sudden curves, or other conditions that could cause accidents for the unwary driver. If drivers are not warned of such hazards by clearly visible, easily understood highway signs, this could constitute the kind of negligence that circumvents any claim of sovereign immunity and would allow recovery of damages.

If you have been involved in an accident resulting from a defect in design or maintenance of a Georgia road and have suffered injuries, you should consult with an attorney to see if you might be able to recover damages. Contact the attorneys at Slappey & Sadd for a free consultation to discuss your case by calling 404.255.6677. Our attorneys serve the entire state of Georgia, including Smyrna, Decatur, and Marietta. You also can reach us through our online contact form.