$650,000
WRONGFUL DEATH FROM
DEFECTIVE HIGHWAY DESIGN

Fernandez and Giron v Yakima County stands as an example of what a diligent lawyer can do to build a powerful 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 Lucy Lane in rural Yakima County, the right front wheel slipped off the paved portion of the road. Now facing a steep embankment, 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 of their expert, Larry J. Stadler, concluding that "…the only logical causation for this accident was driver inattention."

Octaviano Olguin left a mother, but no wife or children. Jesus Giron left a wife, Maria Giron, and three young children. 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 Dean Brett, a lawyer who had 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, Edward Stevens and Associates, to survey the site and review its compliance with applicable highway design standards.

After surveying the site, Mr. Stevens realized that Yakima County had misplaced the original centerline so that rather than two ten-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, Stevens also concluded that the shoulder was substandard, the slope was substandard, and that the tree was in violation of a clear zone requirement.

To summarize, Lucy Lane was:

• a 50 mile-per-hour roadway with a severely substandard lane width (actual 7.6 feet, standards require 11 feet),
• bordered by a narrow, soft, gravel "shoulder" with an abnormally high outbound slope (actual 8-12%, standard allows no more than 6%),
• bordered by an unmarked, steep, 1.7/1 embankment (must be 4/1 or greater to be recoverable under Department of Transportation Design Manual),
• with a large tree well inside what standards require to be maintained as a clear zone.

Brett and Carpenter dug into the history to determine how Yakima County had negligently maintained Lucy Lane. 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 under 8 feet wide!

How could this have happened? Matt Pietrusiewicz was Yakima County's Road Maintenance Manager. He did not know how it happened.

Q: Do you yourself know how it came about that Lucy Lane at the site of this accident had two lanes, one approximately 12 feet wide and one approximately 8 or less feet wide?
A: I do not.
Q: Do you know anybody who does?
A: I do not.
Q: Has that question been a subject of conversation within the department?
A: Yes.
Q: And have you made an effort, you and others in the department, made an effort to find answer to that question?
A: There have been discussions.
Q: Is it fair to say that nobody in Yakima County, as far as you know, knows how it happened?
A: Yes.

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. His attitude toward centerline striping may give us a clue about how the stripe was misplaced.

Q: What is a centerline?
A: The centerline is intended to indicate the approximate center of the roadway for two-way traffic.
Q: And where is it located?
A: Approximately in the center of the roadway for two-way traffic. It would be different in different lane configurations.
Q: Okay. What do you mean by "approximate," "approximately"?
A: It means that it doesn't necessarily have to be in the exact center of the roadway, but -
Q: I understand that.
A: Approximately.
. . . .
Q: So if you send somebody out to - if you send your striping crew out - you have a striping crew in Yakima County?
A: Yakima County has a striping crew.
Q: So you tell them to put the centerline in the approximate center of the roadway, correct?
A: Yes, sir.
Q: And so if they go out to a 20-foot lane - if they go out to a 20-foot roadway and they are told to put the centerline in the approximate center and they put the centerline off two feet, so that one lane is 12 and the other lane is 8, they have met your standards; is that correct?
A: Yes, sir.

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.

Ekstedt then cleverly explained how 8-foot wide trucks should negotiate the 7-1/2 foot lane.

Q: So if you have an 8-foot wide truck and you've got a 7-1/2 foot wide lane, all you have to do is go over the centerline six inches, and, what, maybe another six inches to give yourself a little clearance off the edge?
A: That would be correct.
. . . .
Q: So the 8-foot wide vehicle that's going down the 7-1/2 foot wide paved lane would go into the oncoming lane rather than go onto the shoulder.
A: Yes.

Ultimately investigation determined that the roadway had been resurfaced on several occasions since 1951. When a roadway is resurfaced, workers place plastic tabs on the center line which stick up through the new asphalt and mark where the new centerline is to be placed. The workers had placed the tabs on the right hand stripe of the double stripe, resurfaced the road, then laid down the left hand stripe over the old right hand stripe location - thus moving the double stripe to the right eight inches. Having followed this mistaken procedure three times, the center stripes had been moved to the right 24 inches, 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.

Finally, Yakima County had allowed a large tree to grow within the right-of-way. The year before the accident, county employees decided the tree needed to be removed to make the road safe, but then mistakenly thought that the tree was outside the right-of-way, and decided they could not cut it down. They were wrong. 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, they 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 Lucy Lane to deteriorate to a very different roadway. That new and different roadway did not meet current design standards.

But Brett and Carpenter had to demonstrate that Lucy Lane currently failed to meet the modern design standards. The northbound lane of Lucy Lane had a severely substandard width. Since Yakima County last overlaid the road in 1989, the standards in place at that time governed liability. The 1984 AASHTO (American Association of State Highway Traffic Officials) Design Manual set lane width standards. A 50-mile-per-hour road required 11-foot lanes and 4-foot shoulders. Lucy Lane's northbound lane at the accident site was an incredibly narrow 7.6 feet wide, in an area frequently used by standard 8-foot wide farm trucks, like the one involved in this tragedy. The MUTCD (Manual on Uniform Traffic Control Devices) generally required the centerline to be in the center of a roadway, except on curves.

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 American Public Works Association's Street and Highway Maintenance Manual required gravel shoulders to have no greater than a 6% slope. Only 5 feet of the 200 feet of Lucy Lane at the accident site met this standard. Ninety feet exceed 8%, and some areas exceed 12%. The expert hired by the County measured the shoulder drop-off slope at 15%. This was more than a technical violation. Gravel shoulders of greater than 6% outbound slope tend to pull vehicles further off the roadway, rather than providing a recovery area.

The steep embankment bordering the narrow lane and excessively outsloped "shoulder" was, according to Edward Stevens, P.E., "absolutely non-recoverable." At a slope of 1.7/1, once a vehicle is onto what the County's expert called "the unusable shoulder", recovery back onto the roadway was impossible.

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. Washington State Department of Transportation Highway Design Manual (1989) provided the standard for calculating the required recovery area. Using this formula, the tree was 5.7 feet inside the recovery area which DOT required to be clear of fixed objects.

The excessive speed limit of 50-miles-per-hour only made these deficiencies worse. AASHTO required as a minimum 22 feet of pavement and two 4-foot shoulders to allow a 50-mile-per-hour speed. Even if the above-described deficiencies were removed, the maximum allowed speed would have been 35-miles-per-hour, with the nominal 20 feet of pavement divided into two equally sized 10-foot lanes, two 4-foot shoulders and a 10-foot clear zone.

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 Lucy Lane caused this tragic, double fatality. Arnaldo Ramirez testified that he and two co-workers were driving at 40+ miles per hour up Lucy Lane 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.

Despite heroic efforts, Ramirez could not avoid the tree. As the truck tilted right and lurched down the embankment, he was thrown to the right. The inside of his right ankle was cut open by the side of the brake pedal as he tried to hit the brakes, but missed. He put so much effort into trying to turn the steering wheel that his right shoulder suffered a severe strain requiring medical attention. There was also a scar in the middle of his forehead, evidencing his own brush with death. Both his coworkers were crushed by impact with the tree and bled to death.

An expert on accident reconstruction, Duane McInnnis P.E. of McInnis Engineering testified that, based on reconstruction using engineering principles incorporated into the computer program PC Crash, at 30 mph or above, at a three degree exit angle, an errant vehicle will not be able to recover on the shoulder and slope of Lucy Lane provided by Yakima County.

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 up to that 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 claim against "city hall."

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