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$650,000
WRONGFUL DEATH FROM
DEFECTIVE HIGHWAY DESIGN

Fernandez and Giron v Yakima County is an example of what a diligent lawyer can do to build a successful negligent highway design claim.

Arnoldo Ramirez, Jesus Giron and Octaviano Olguin, three Hispanic field workers, were dispatched by a Yakima fruit company to haul a load of garbage to a local dump. As Ramirez drove up a road in rural Yakima County, the right front wheel slipped off the paved portion of the road. Ramirez was unable to control the truck, which hit a tree, killing the two passengers, Giron and Olguin.

The Washington State Patrol investigated the accident and issued a comprehensive 33-page report that concluded: "The cause of the collision was driver inattention." Yakima County produced a report by their expert, Larry J. Stadler, concluding that "…the only logical causation for this accident was driver inattention."

Jesus Giron’s wife Maria, who spoke no English, sought legal assistance from four separate lawyers in Yakima. Each told her there was nothing they could do for her, either because they had an unexplained "conflict of interest" with the powerful local fruit company, or because they had concluded that any lawsuit against the inattentive driver-coworker would be precluded by the Workman's Compensation bar. The driver had no insurance or assets.

Because she was destitute and desperate for help, Maria Giron continued to seek legal assistance. Two and a half years after the accident, she contacted Glenn Carpenter, Jr., a Spanish-speaking attorney practicing in Kent, Washington. Glenn Carpenter associated with attorney Dean Brett, who had extensive prior experience in wrongful death and highway design cases. They visited the scene of the accident. Based on their observations they contacted an engineering firm to survey the site and review its compliance with applicable highway design standards.

After surveying the site, they realized that Yakima County had misplaced the original centerline so that rather than two 10-foot lanes, they had created one 12-foot lane and one 8-foot lane. The 8-foot wide truck, in an effort to maneuver the 8-foot lane, had slipped off the side of the pavement. In addition to the extraordinarily narrow lane, the engineering firm also concluded that the shoulder was substandard, the slope was substandard, and that the tree was in violation of a clear zone requirement.

Brett and Carpenter dug into the history to determine how Yakima County had negligently maintained the road. The road was built in 1951 with two 10-foot lanes bordered by 4-foot shoulders. Unfortunately, Yakima County negligently repainted the centerline so that the southbound lane was now approximately 12 feet wide and the northbound lane was just less than 8 feet wide. How could this have happened?

Matt Pietrusiewicz was Yakima County's Road Maintenance Manager. He did not know how it happened. Kent L. McHenry was Yakima County's Traffic Engineering Manager in charge of traffic design and traffic operations. The people who actually painted the centerline reported directly to him. McHenry and Pietrusiewicz reported to Gary K. Ekstedt, who was the Assistant Public Works Director for Transportation Services. He had to concede certain engineering principles:

Q: But if someone built a road for you under contract and they built the crown correctly, but they put the lane - if they put the centerline in the wrong location, I'm going to call it "wrong location", you know, it's one 8-foot lane and one 12-foot lane, would that be acceptable to you?

A: If it was a new road, no, it wouldn't.

Q: Okay, but is there somewhere where it's written down in your specifications that the centerline is supposed to be in the center of the road?

A: No.

Q: That's something that's expected to be done, though.

A: It's expected to be done, though.

Q: It's good engineering practice?

A: It's good practice, as long as there are no mitigating issues, yes.

Ultimately, investigation determined that the roadway had been resurfaced on several occasions since 1951, and on each occasion the center line had been mistakenly moved to the right, creating one 12-foot lane and one 8-foot lane -- too narrow for an 8-foot wide truck to pass. In addition, Yakima County had allowed the shoulders to deteriorate to half their original width so that instead of a 4-foot gravel recovery area there was only a 2-foot recovery area.

And finally, Yakima County had allowed a large tree to grow within the right-of-way. Instead of measuring with a survey, or even with a tape measure from the roadway to determine whether the tree was in the right-of-way, road crews simply sighted up a row of power poles and assumed, incorrectly, the power poles marked the right-of-way boundary, again demonstrating measurements that were "good enough for Government work" in Yakima County. In fact, the tree was well within their right-of-way.

In short, Yakima County did not "maintain" the original design. They did not "maintain" the original lane width, they did not "maintain" the original shoulder width, and they did not "maintain" the clear right-of-way. Rather Yakima County allowed the road to deteriorate to a very different roadway. That new and different roadway did not meet current design standards.

Then Brett and Carpenter demonstrated that the road currently failed to meet the modern design standards. The northbound lane had a severely substandard width. The gravel "shoulder" bordering Lucy Lane's narrow northbound lane was also so out of compliance that it did not technically qualify as a shoulder. The steep embankment bordering the narrow lane and excessively outsloped "shoulder" was, according to Edward Stevens, P.E., "absolutely non-recoverable." There were not even edge delineators to mark this hazardous drop off. At the bottom of the embankment was a fixed object - a large tree leaning into the roadway. Using the formula from the Washington State Department of Transportation Highway Design Manual, the tree was 5.7 feet inside the recovery area which the DOT required to be clear of fixed objects.

The 7-½ foot lane did not provide enough room for an 8-foot wide truck without illegally crossing the off-center centerline or driving onto the dangerously tilted shoulder. The narrow, soft, tilted shoulder, steep embankment, and lack of a clear zone allowed no recovery room once a right front tire left the edge of the 50-mile-per-hour highway.

Brett and Carpenter then had to prove that the negligently maintained, defectively designed roadway caused this tragic, double fatality. Arnaldo Ramirez testified that he and two co-workers were driving at 40+ miles per hour up the road in an eight-foot wide farm truck loaded with garbage. He looked into the rear view mirror to see if anyone wanted to pass him. State Patrol photographs of the scene showed that his right tire left the 7 ½ foot northbound lane as he passed over a level road entrance to an adjoining field. Leaving the level field entrance, the right front tire was off the paved lane and into the soft shoulder, which had a 15% drop off. At 40 miles per hour, Ramirez had insufficient time to react to the danger before he was in what Yakima county's expert described as the "unusable shoulder" and crashed into the large tree Yakima County had failed to remove from the clear zone.

Due to the narrow lane, tilted shoulder, steep embankment, and tree in the clear zone of a 50 mph highway, two passengers bled to death when the truck hit the tree. This was not just a case of "driver inattention."

After four law firms refused to represent the Fernandez and Giron families, diligent work showing the negligently designed roadway led to an out-of-court settlement of $650,000, the largest settlement against Yakima County at the time. The result was particularly rewarding in light of the fact that decedents were low wage earners, one of whom was an undocumented alien, bringing a successful claim against "city hall."

Call the attorneys at Brett & Coats today at 1-800-925-1875, 360-714-0900, or contact us via our online form.

For more information on wrongful death claims, please see our Wrongful Death page or our Wrongful Death Frequently Asked Questions.