The Accident

At 4:45 on the afternoon of August 15, 1989, Kerrilyn Symington drove southbound on U.S. Highway 83 near Wellfleet, Nebraska. Her two sons rode with her. According to the police report, it was a clear, dry day; the two-lane, paved road was straight and level.

When a bird (or other object) came toward her vehicle from the right, Symington veered left to avoid the object. Her vehicle crossed the oncoming lane, drove over a curb on the east side of the roadway, and continued traveling along the curb for some distance. After the vehicle struck a delineator post, it jumped back over the curb, recrossed the highway to the west side, left the road, and rolled one and one-half times. The boys received cuts and bruises; Symington's injuries were extensive.

Proximate Cause

The first question for the Court to consider became whether the design and location of the curb at the edge of the paved roadway were a proximate cause of the accident.

Plaintiff's expert Simon Tamny testified that Symington's vehicle crossed the curb on the east side of the road at approximately 55 to 59 miles per hour. Her vehicle slowed as it recrossed the curb and the roadway, and its speed was 30 to 33 miles per hour by the time it entered the ditch on the west side of the road. Tamny said the front and rear tires on the left side of the vehicle "scrubbed" along the curb at the east side of the road. According to Tamny, the angle of the back face of the curb demanded that Symington turn the vehicle's tires to a 5-degree angle to mount or traverse the curb and get back on the road. It was over steering to get that angle and reenter the road that caused Symington to lose control of the vehicle and resulted in the eventual rollover.

The State and its expert, Dean Sicking, argued that Symington's tires did not become trapped in a scrubbing situation along the curb. Sicking said Symington's vehicle did not straddle the curb for a sufficient distance to get into a scrubbing pattern. When Sicking ran a computer simulation of the accident, he concluded that Symington's left tires were some distance away from the curb. He also testified that remounting the curb would have required only a 3.5-degree angle of the wheels. Sicking said that he did not extend the computer model to simulate the entire accident, and he ran the original model based on inaccurate assumptions. After reviewing the police report, he reran the model using different assumptions.

The Court named several reasons why it gave Tamny's testimony greater weight than Sicking's. First, Sicking's computer model depended on Symington's crossing and recrossing the curb with her tires at exactly a 3.5-degree angle; the Court felt this was not a realistic assumption to make about the behavior of the average driver. In addition, Symington's tires would have left an impression in the loose soil at the side of the roadway if either tire or both tires had been more than three feet from the curb (as Sicking suggested); witnesses found no such tire impression. Finally, Sicking's computer model used information on the shape of the curb as it existed five years after the accident. That shape would have changed in five years, but photographic evidence gathered at the time of the accident presented a distorted picture of distances and angles.

Therefore, relying on Tamny's testimony, the Court concluded "that the curb placed upon the edge of the paved portion of the shoulder was the proximately contributing cause of the over steering, loss of control, skid, and the resultant rollover of the vehicle driven by the Plaintiff."

Dangerous Situation

In considering whether construction and maintenance of the curb created a dangerous situation, the Court had to decide if the hazards were so obvious that no reasonable, prudent person would have allowed the curb to be constructed and maintained in the way it was. Also, the Court took up the issue of sovereign immunity by deciding whether the construction and maintenance of this curb were discretionary functions for which the State could claim immunity.

Because a curb of the type existing at the accident site constitutes a barrier, the experts agreed that the State should use such a curb only when necessary for a purpose such as controlling erosion from water runoff. Since drivers sometimes need to use the roadway shoulder in an emergency, a smooth transition on and off the roadway provides the safest situation for vehicles. If a roadside curb is not fully mountable and traversable, it creates a drop off and results a dangerous condition.

State engineers and planners felt a curb was needed here to control erosion due to water flow. According to Fred Beck, the engineer who designed this project on Highway 83, the State engineers and planners delivered to him a plan showing the detail of the curb design. Beck testified this was his first curb design project and "no one had suggested that back fill to the top level of the curb was a good idea or that few of the projects within the State of Nebraska did not have back fill to the top of the curb if that curb was in the middle of the shoulder." In addition, Beck said he assumed this was a mountable curb and the State would maintain the dirt fill behind it.

Plaintiff's expert Howard Anderson testified that the 1972 roadway construction at this site had been safer than the 1988 reconstruction during which the State installed the curb. Anderson also pointed out that the State had improperly placed the delineators in this area, had failed to backfill after making the decision to place the curb, and had not maintained an appropriate clear zone in this area of the shoulder. The clear zone was especially important here, since motorists were approaching a concrete flume just south of where the accident happened. In Mr. Anderson's opinion, "[T]he design and the maintenance of the highway was so obviously dangerous that no reasonable person would have adopted that design."

Defendant's witnesses maintained that the curb was necessary because of erosion problems but did not present a hazard since it was traversable. One witness pointed out that water erosion in this area would have created a dangerous drop-off at the side of the road, and the curb prevented this from happening.

Moreover, the State claimed that design and reconstruction of the curb and the surrounding roadway represented discretionary functions and, therefore, the Plaintiff could not make this claim against the State.

Referring to Wickersham v. State (218 Neb. 175 (1984)), the Court noted:

the State Tort Claims Act extends only to the basic policy decisions made in governmental activity, and not administerial activities implementing such policy decisions. * * * In other words, the State is liable for negligence of its employees at the operational level, where there is no room for policy judgment.

Regarding the policy judgment involved in decisions about this curb, the Court recalled that the project design engineer testified he received a completed curb plan and, apparently, he did not consult with anyone regarding the geometry of the curb nor meet with anyone to consider the dangers of using this curb design without backfill. According to the Court, this form of decision making did not involve policy judgment and could not qualify as "discretionary." Thus, the State could not claim immunity based on performing a discretionary function in installing the curb.

According to the Court, the State's claim to immunity was also in question under the provisions of Gilbert v. City of Tekamah (221 Neb. 614 (1986)) in which the issue was the sufficiency of a bridge. The decision in Gilbert stated:

Generally, negligence may not be predicated on a curve or variation in a road or the location or dimension of a bridge according to road plans "unless it is so obviously dangerous that no reasonable or prudent man would approve the plans."

The Court mentioned expert witness testimony and guidelines from the American Association of State Highway and Transportation Officials regarding the design characteristics of mountable curbs. These sources specified an easily mountable curb should have an angle of no more than 45 degrees; however the back of the curb at the scene of this accident had an angle of more than 55 degrees. Reasonable and prudent persons, according to the Court, should assume vehicles will use the shoulder area of the roadway in an emergency and an easily traversable curb on the shoulder would be a requirement; therefore, the State should not have approved the hazardous angle of the curb installed here.

Finally, the State does not enjoy sovereign immunity for maintenance activities. In this case, resloping the curb or following Nebraska guidelines by backfilling against the curb to create a drop off of less than two inches would have prevented the dangerous situation from continuing. In the absence of resloping or backfilling, the Court concluded, "[I]t is clear that the curb presented the same type of danger as did a drop off and that the curb's height exceeded two inches." The State opened itself to legal action by not performing maintenance functions to repair the drop off.

Placement of Delineator Posts

The delineator post that Symington struck with the left side of her vehicle was 1 foot 8 inches from the curb. The Manual on Uniform Traffic Control Devices (MUTCD) recommends that delineators be "not less than 2 nor more than 8 feet outside the outer edge of the shoulder" (page 3d-2, Revision Number 4, March 1986). Although a Defendant's witness said the placement of the post was proper, Howard Anderson testified for the Plaintiff that "Nebraska was the only state that he had seen that violated the standard set out in the MUTCD in relation to delineators."

The location of the delineator post became important when the State argued Symington was contributorily negligent because she did not "stop or adequately slow her vehicle prior to attempting to regain access to the main traveled portion of the highway." In Maresh v. State (241 Neb. 496, 513 (1991)) the Nebraska Supreme Court responded to a similar claim. The Supreme Court concluded:

Locating markers on steel posts so near the highway that an auto traveling with its right wheels on the shoulder may strike them * * * urges the driver to try immediately to reenter the highway, with the possibility of dire consequences * * *

In like manner, the placement of delineator posts forced Symington to abandon the decision to remain straddling the curb and continuing slowing her vehicle on the east side of the roadway because she would have struck another delineator. Finding that Symington was not contributorily negligent, the Court summarized her situation:

The Plaintiff was forced to stay as far right as possible so as to avoid the delineator posts, yet slow down with two wheels upon loose soil and two wheels upon pavement, while straddling a curb that was not traversable at a 5[-]degree angle or less, while riding in the middle of the left[-]hand shoulder, approaching a concrete flume directly ahead, and to perform these maneuvers within a matter of seconds.

Judgment

The Court found the State's negligence proximately caused the Plaintiff's accident and injuries and rejected the State's request for sovereign immunity. Moreover, the Court judged there to be no contributory negligence by the Plaintiff. Before deciding the amount of damages, the Court digressed to comment on the present attitude in the United States toward large damage awards. Since that portion of the judge's opinion transcends this case and is important to many cases discussed in the TranSafety Reporter, a separate article in this issue of the Reporter presents extensive quotations from the judge's words. Please refer to "Nebraska Judge Comments on 'Tort Reform.'"

Prefacing his determination of award amounts with a defense for allowing juries and judges to make award decisions based on the merits of each case, the judge enumerated dollar figures for costs incurred by this Plaintiff. Cost categories included: medical treatment, home remodeling costs, vehicle replacement, lost earnings, future earnings, future medical and medically related expenses, future medical supplies and medications, future medical procedures, future medical care, and future durable medical equipment.

In addition, the Court weighed the amount of award for pain and suffering. Acknowledging the impossibility of assigning a dollar figure to this aspect of the award, the Court observed:

No one can determine what amount will properly compensate individuals who have become imprisoned in their own bodies and remain in that condition for the rest of their lives. Needless to say, no rational individual would be willing to enter into such a state for any amount of money. Recognizing that, it is clear that no amount of money awarded could properly compensate this Plaintiff.

The Court arrived at an award of $500,000 for non-economic damages. When combined with the total award for past and future costs, damages for the Plaintiff and against the Defendant totaled $3,315,402.12. In a separate, related judgment, the Court granted $200,000 to John Symington, spouse of the Plaintiff. Finally, the settlement included interest at the legal rate and costs of the suits.

[For further reference, see Kerrilyn Symington v. State of Nebraska, Case No. 105-191 in the District Court of Lincoln County, Nebraska, filed March 31, 1995]

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