Danger on the Road

Date: February 17, 2009
Volume 45, No. 2, February 2009
Initial steps in the roadway drop-off case

Paul T. Oven

A steep drop-off along a road\’s edge is a catastrophe waiting to happen. If a client has been injured in a drop-off-related accident, start strong with a thorough investigation of its cause.

In 2004, Barbara Jones turned out of her driveway onto a state highway in rural northeastern Pennsylvania. As she was negotiating a gradual left turn in the road, the passenger-side tires of her car drifted just over the white fog line and dropped six inches onto the exposed dirt shoulder.

This road had been repaved more than three months earlier, but the shoulder had not yet been built up and replaced. And the contractor had failed to place barricades or warning signs along that stretch of roadway.

Traveling at the posted 45 mph speed limit, the car\’s right tires were on the shoulder for only 1.5 seconds before Barbara oversteered the vehicle back onto the road, crossed over it, and struck two trees on the opposite side, causing her to nearly eject from her car\’s rear window. She suffered severe injuries that left her with only partial motor control below the C5 vertebra and 100 percent pain perception. My colleagues and I filed suit against the pavement contractor and, after extensive discovery, recovered damages, with the majority of the settlement going to Barbara\’s life care plan.

Travelers on rural roadways and in construction zones are often “riding the razor\’s edge,” with dangerous drop-offs hidden just inches away. According to the Federal Highway Administration (FHA), an estimated 11,000 people suffer injuries and about 160 die annually in crashes related to unsafe pavement edges.1

Although relatively rare, pavement drop-off crashes tend to be more severe than other accidents.2 They are more likely than others on similar roadways to result in serious injuries and are two to three times more likely to be fatal, primarily because the vehicle often rolls over, hits a roadside object, or crashes into an oncoming vehicle when the driver attempts to steer the car back onto the road.3

Drop-offs can be especially severe where pavement recently has been laid and material has not also been added to the shoulder surface, or when a shoulder has washed away because of weather or has been worn down by traffic. And while drop-off accidents can occur on any road, they are more likely to happen on undivided rural highways where the speed limits are fairly high (typically between 45 and 70 mph) and drivers encounter oncoming traffic just a double yellow line away, many twists and turns, and hazards like driveways, side streets, mailboxes, and school bus stops.

The American Association of State Highway and Transportation Officials (AASHTO) has said that “well-designed and properly maintained shoulders are needed on rural highways with appreciable volume of traffic.”4 Effectively designed shoulders provide space necessary “for evasive maneuvers to avoid potential crashes or reduce their severity” and “for pedestrian and bicycle use, for bus stops, for occasional encroachment of vehicles, for mail delivery vehicles, and for detouring of traffic during construction.”5
When encountering a sudden drop-off, the typical motorist will try to reenter the travel lane rather than make other driving maneuvers. In response to the sudden jolt of having one or two tires (almost always on the passenger side) leave the roadway, the driver\’s first reaction is to oversteer to the left to get the vehicle back into the travel lane.

Crash statistics show that most drop-off accidents involve this oversteer reaction. The average reaction time is about 1.5 seconds. Quite literally in the blink of an eye, the vehicle will be 90 feet down the roadway before the driver begins to brake or tries to steer the vehicle back onto the road—and this is at 45 mph.
When the driver oversteers, the inside of the passenger tires “scrub” against the higher pavement drop-off and the driver can feel as though he or she is stuck in a rut, leading to additional panicked oversteering. Then, when the car reenters the roadway, the front tires are turned at an unmanageable angle, and the vehicle either slingshots across the road or rolls over.

A drop-off only a few inches deep can have this potentially deadly effect. Research has indicated that drop-offs of two inches or less can cause loss of control.6 On highways where the speed limit is 55 mph or more, a drop-off should be no more than one inch deep.7

Investigating the crash
These cases are not for the faint of heart, but they can be won. The key is getting involved immediately after the accident and accumulating as much information as possible before the paving companies or state departments of trans portation (DOTs) “cover their tracks” by changing the road\’s condition from what it was at the time of the crash.

Identify the cause of the drop-off. It\’s not enough to simply prove the drop-off existed. The true battle in these cases is usually waged over the issue of causation. Not only must you prove causation between the drop-off and the resulting accident; first, you must identify the drop-off condition\’s cause.

Many alternative explanations for the condition are possible—for example, trucks and tractor-trailers often run wheels over the road edges, particularly on the inside of highway curves; school bus and delivery drop-off and pickup points are susceptible to shoulder erosion; a single rainstorm can wear away significant amounts of loose materials near a road\’s edge.

You must identify the source of the problem—and rule out all other potential sources—before you identify the parties to investigate for culpability.

If the road was recently paved, preserve the construction site. While you can\’t shut down a roadway or a construction project, you can take steps to preserve the condition of the scene and the vehicle. Signage may still be in place, or markings from the pavement crew or your state\’s DOT may still be visible.

Take photographs of the construction zone and speed limit or warning signs approaching the scene from both sides. The paving company may have retained photos of the site pursuant to management guidelines or company policy.

Look at the place where the vehicle left the road to see if the undercarriage struck and gouged the edge. Such marks can indicate that the paving company or DOT did not ensure that surfaces abutting the new road were raised to a higher level after paving was completed. The same holds true for examining a re-entry gouge mark or scrape. Both marks may prove invaluable for experts\’ calculations on speed and apparent loss of control. Examine the damaged side of the drop-off to see if there is evidence that tires scraped against it. Photograph and measure everything.

If you aren\’t fortunate enough to get involved in the case soon after the accident, do some digging. Layers of new pavement, much like layers of rock cut away for highway construction, are easily distinguishable. By chipping away at the shoulder and exposing the old and new surfaces, you\’ll be able to see how much pavement was added in a given location.

You may be able to easily establish key points regarding the depth of the drop-off by simply measuring and photographing the exposed layers. You may be fortunate enough to show that the area was overpaved, thereby heightening the drop-off. You may also find out that the work in that location didn\’t conform to the contract specifications for pavement amounts on a particular curve, which usually vary from pavement placed on straightaway sections.

Time is of the essence, but it is often obvious where the most recent level of pavement was added and how much material was placed on top of the old shoulder. You may be able to reconstruct the conditions that existed at the time of the accident.

Talk to people. I think it\’s safe to say that the traveling public generally perceives roadway maintenance work as slow, ineffective, and badly managed. Use this to your advantage.

Local residents and emergency personnel who responded to the crash will often be happy to provide information about traffic or construction delays, inadequate signage, other accidents in the area, near-miss cases, and personal tales of undercarriage damage to their vehicles from “bottoming out” when entering driveways adjacent to the road. This type of evidence is invaluable in establishing that your client\’s accident was not an isolated incident or due to a moment\’s inattentiveness.

Talk to people who live near the scene of the construction project. You\’ll often find that complaints were registered not only with the pavement company but also with government officials. Since these projects may be funded by local and state governments, agency meeting minutes can provide a lot of information about timetables and other project requirements and about notice of potentially dangerous road conditions.

Read up. Do your best to quickly identify the paving company and obtain copies of applicable contracts and regulations. You will probably find multiple discrepancies between the contracts and regulations and the conditions of the road, both at the accident site and elsewhere in the construction zone.
The FHA\’s Manual on Uniform Traffic Control Devices details the federal government\’s policy on signs, signals, and markings in work areas. Most states have codified the manual or modeled their own rules and regulations for work-zone traffic control on it, and the regulations are usually quoted in government contracts with private paving companies. Many contracts have detailed schematics depicting which signs belong in various positions. The more specific the requirements and specifications, arguably the higher the standard to which defendants will be held in a civil setting.

Often, specific sections of these regulations deal exclusively with drop-offs and assign tasks to pavement construction crews. For instance, in Pennsylvania, if a pavement company creates a road with a four-inch drop-off, it is obligated to install “low-shoulder” signs and place channeling devices, such as cones or barrels, every 90 feet along the edge of the road.

Regulations or contracts may limit the time that may elapse between the laying of the pavement and the placement of the backup shoulder material. For example, in one of my firm\’s cases, Pennsylvania contractually obligated its paving company, our defendant, to begin placing shoulder material no more than seven calendar days after the roadway resurfacing was completed. Also, the company could not leave any vertical drop-off greater than three inches in height unprotected, even overnight.

Sometimes, wedging materials are contractually required to be placed along a vertical drop-off face to reduce the angle of the drop and decrease the likelihood that a driver whose car leaves the road will lose control and oversteer to recover.

AASHTO publishes specifications, test protocols, and guidelines that are used throughout the United States. Its voting membership consists of each state\’s department of transportation, and, while it is not a government body, AASHTO possesses quasi-governmental powers, as the organizations that supply its members customarily obey most AASHTO decisions.

The association\’s A Policy on Geometric Design of Highways and Streets, often called the Green Book, covers the functional design of roads and highways, including curve layouts. It deals specifically with drop-offs and shoulders. Be certain to use the Green Book in researching contracts and in cross-examining the DOT and paving representatives on AASHTO regulation compliance.
It would be hard for a witness to disagree with AASHTO that “a definite hazard is associated with [a road shoulder\’s] use when driven upon it at any appreciable speed. Skidding out of control or turning over are not uncommon accidents as a result of loose gravel, sandy, muddy, soft, or spongy shoulders.”8 It is axiomatic that the same reasoning holds true for improperly constructed, or missing, shoulders.

The FHA\’s Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects offers guidance on drop-offs in work zones and indicates that when a shoulder drop-off exceeds two inches, a “low shoulder” warning sign should be placed during construction.9

A study by the (AAA) American Automobile Association Foundation for Traffic Safety provides not only an incredibly comprehensive analysis of crash statistics and driver response studies, but also a state-by-state compilation of state and provincial guidelines for design considerations, drop-off measurement tolerances, and maintenance obligations.10

Look for a motive. Contract language or specifications can reveal a monetary motive for leaving drop-offs unprotected.
Many contracts spell out performance deadlines or goals whereby the contractor is paid incrementally. The paving company bids on and is paid for each unit of paving (often measured in tons of asphalt) that the contractor completes.
You likely won\’t find deadlines for when roadways must be shouldered. This allows companies to run their paving crews well ahead of their lining and shouldering crews, as it is imperative that the pavers keep the pavement hot and the machines running for as long as they can on any given stretch of roadway. A paving crew would prefer to pave continuously; thus, it\’s cost-effective for a company to maintain paving activities rather than paving a section at a time before shutting down the paving process to return later to that same section.

Contractors are usually paid a lump sum to protect their work zones with signs, channeling devices, and barriers. The labor required to set up, maintain, and monitor proper signage and barriers entails significant costs. Break down how the contractors are paid and where they can cut costs, thereby increasing profits. Too often, signs and other safety devices are the first casualties.
Preserve the vehicle. Pictures of damage to the vehicle\’s body aren\’t enough. When possible, preserve the vehicle. Being sensitive to costs and potential case value, you should consider purchasing the vehicle for salvage value, even if it has been totaled, so as to preserve the absolutely critical evidence the tires and undercarriage may contain.
Likewise, doing only a cursory investigation or simply taking photos may open your case and expert to insurmountable cross on spoliation-of-evidence issues if the other side is unable to verify your and your expert\’s conclusions on scrubbing and undercarriage damage.
The typical drop-off accident causes damage to the vehicle\’s undercarriage and will leave scrubbing marks on the inside of the passenger-side wheels. If you can\’t document damage to the undercarriage or tires, expect to face defense claims that the accident was caused by driver inattentiveness or steering error.
Anticipating defenses
The typical defense goes something like this: “It\’s not our company\’s fault that your client couldn\’t keep her vehicle on the roadway.”
This defense often can be either dispelled or eliminated before your client has to testify. Remember, these cases happen very quickly, in the blink of an eye. Barbara, for example, traveled 92 feet (over 30 yards) in only 1.5 seconds—the average driver\’s reaction time.
Again, considering that a driver\’s normal and anticipated reaction is to steer back onto the road, drop-off cases place a higher premium on the anticipated steering than on braking or bringing the vehicle to a stop. Studies focus on the surprise associated with the driver finding himself or herself dealing with an error in judgment in steering the vehicle. This scenario is different from a braking situation, where the driver finds an unidentified or unexpected object in his or her lane of travel or needs to stop to avoid a collision.
By its very nature, an error in steering led the driver into the dangerous situation, and the anticipated “panic” reaction is to counter a poor steering error right or left with one in the opposite direction. This must be the focus of your analysis, as your client will be “forgiven,” to a certain degree, for not slamming on the brakes as soon as the vehicle\’s tires hit the shoulder.
Because government agencies usually are responsible for constructing and maintaining roads, state notice requirements often arise as a defense. Most states have strict statutory requirements for placing state officials on notice of an accident, and state laws may require the plaintiff to prove that the government agency had received prior notice, often in writing, of the alleged dangerous or defective condition—the drop-off.

Local board of supervisors meeting minutes may show that government officials regularly received complaints from residents and travelers about dangerous roadway conditions in the weeks and months leading up to your client\’s accident. Most DOTs have Web sites established for this type of communication, so search their databases.
Also, be wary of recreational-use statutes. Drop-off conditions often exist in rural areas identified as state game lands and state parks, affording government defendants immunity from liability for negligence.
Other common defenses include claims that that your client was not wearing a seat belt or that the vehicle was being driven at an excessive speed or was not crashworthy.
State statutes may be helpful in countering the claim that your client was not wearing a seat belt. Some states prohibit defendants in cases like these from introducing evidence showing a lack of seat belt use. If you\’re not in a jurisdiction that prohibits use of a seat belt defense, you\’re going to find yourself in the unenviable position of hiring biomechanical and safety engineers to offer the requisite testimony as to how your client\’s injuries would have occurred even in the face of alleged lack of seat belt use (or excessive speed or an “uncrashworthy” vehicle).
Take the offensive against the defendants on these arguments, noting that “but for” the drop-off itself, the accident wouldn\’t have happened and you\’d not be discussing these tangential issues on injury causation or enhancement of your client\’s injuries.
These defenses also return you to the essential practice point concerning preservation of the vehicle itself. Without it, defense experts must use their imagination regarding the vehicle\’s structural integrity—or lack thereof—which opens up your own expert to a potentially disasterous cross-examination of endless “what ifs?” Top-notch accident reconstruction, biomechanical, and safety engineering experts can only go so far with their expertise, and nothing compares with access to the vehicle and the accident scene data.
The AAA Foundation for Traffic Safety study delves into the multiple components that contribute to accidents involving drop-offs.11 The studies cited there address issues such as the differences in the make and model of the car involved (SUVs faring better than small passenger cars), the safety of rounded edges over straight vertical edges, and the likelihood that lower speeds make reentry and accident avoidance more possible.
While the universally accepted limit for a dangerous drop-off is three inches, individual states\’ requirement of signage or protection for drop-offs significantly less than three inches speaks volumes:

It acknowledges the danger of this condition at any depth, left for any period of time.

Pursuing a drop-off case can be extremely challenging, but persistence and perseverance in the initial stages of the case will help you—and your client—obtain a just and reasonable result.
From the work that my partners and I put into Barbara\’s case—including crawling under her wrecked vehicle, which we had purchased and stored; chipping away frozen dirt and pavement to uncover the depth of the new pavement while dodging traffic; and filing seemingly endless requests for information from the state DOT—I can say that a case becomes clear as a result of establishing the burden of proof and anticipating and countering the paving company\’s defenses. When pursuing a drop-off case, recognize that there are far too many variables and potential pitfalls to not spend the time, effort, and resources to ensure that you have all you need to pursue—and prove—your case.
Paul T. Oven is a partner with Dougherty, Leventhal & Price in Moosic, Pennsylvania.
Notes:

  1. Steve Moler, The Low-Cost Dropoff Solution, 71 Pub. Roads 3 (Sept./Oct. 2007), www.tfhrc. gov/pubrds/07sep/01.htm.
  2. Shauna Hallmark et al., Safety Impacts of Pavement Edge Drop-Offs 89 (prepared for AAA Found. for Traffic Safety 2006), www.aaafoundation.org/ pdf/pedo_report.pdf.
  3. Moler, supra n. 1, at 3.
  4. Am. Assn. State Hwy. & Transp. Officials, A Policy on Geometric Design of Highways and Streets (2002).
  5. Id.
  6. John C. Glennon, Effect of Pavement/Shoulder Drop-Offs on Highway Safety: A Synthesis of Prior Research (Transp. Research Bd. 1987).
  7. Jerry L. Graham & John C. Glennon, Fed. Hwy. Admin., Work Zone Design Considerations for Truck Operations and Pavement/Shoulder Drop-Offs (1984).
  8. Am. Assn. State Hwy. & Transp. Officials, A Policy on Geometric Design of Rural Highways (1965).
  9. Moler, supra n. 1.
  10. Hallmark et al., supra n. 2.
  11. Id.

Reprinted with permission of TRIAL (February 2009).
Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®)

Joe Price
Attorney Joe Price is a seasoned Trial Lawyer serving Northeast, Central and Southeast Pennsylvania for the past forty (40) years. He has handled serious personal injury cases in courts throughout the Federal system including New Jersey and New York. Attorney Price is A.V. Rated by Martindale Hubble. He is Board Certified in Civil Practice by the National Board of Trial Advocacy since 1996.