New Case Law in Roadway Design Cases, Lowman v. Wilbur
We have litigated a number of cases where some or all of the claims in the case involve issues of negligence of a city or county for roadway design. Recently, the Washington Supreme Court issued an opinion expanding this area of the law, and in the opinion (called Lowman v. Wilbur), the change is a positive development for plaintiffs in this area of law.
Lowman builds on the existing Washington case of Keller v. City of Spokane, which is often considered the touchstone case in this state regarding the liability of a municipality in terms of the design of roads and highways.
To understand Lowman, one must first understand Keller. In general, to prove that a defendant was negligent, one element that must be proven is that the defendant breached a duty of care. Many words have been spilled discussing the scope of this so-called “duty of care,” in the sundry contexts of the numerous types of negligence cases that exist. In the specific instance of a roadway design case, the plaintiff’s general theory of the case is that the city or county had a duty to construct, design, and/or maintain the road in a way that is reasonably safe for citizens to drive on it without being subject to an unreasonable risk of harm.
For many years before Keller, there was an ongoing debate in the cases in this area between plaintiffs and the defendant-municipalities as to whether the duty extended only to people driving in a way that is “fault-free” or whether it should also include drivers who may themselves be driving in a negligent or unreasonable way.
Keller put an end to this discussion by holding that in the context of roadway design cases, “a municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.” In direct terms, this means that a municipality cannot evade liability for a roadway that is unsafely designed by pointing the finger to a driver who may not be driving in the safest possible way. The Court’s concern seemed to be that it shouldn’t matter why a person who encounters a road may be driving on it perfectly or instead in a negligent manner; he or she should still be able to expect that the city will have designed the road in a reasonably safe way.
Lowman comes into the fold to expand on this concept a little bit. First, another quick background on negligence law. In addition to proving duty, a plaintiff must also prove that any action done by the defendant actually caused the plaintiff’s injuries. Without causation, there can be no liability. Within the concept of causation, there is the concept of “legal cause,” which is required in Washington courts to prove negligence. To prove “legal cause,” a plaintiff must convince the court that, besides being the actual cause of the injury, the defendant’s action should be considered the cause that gives rise to liability. The determination concerns a policy determination that a certain action should give rise to liability. In some instances, when the result of a certain action is so unlikely or so attenuated, a court will not find liability even though, strictly speaking, there is causation. Such would be an example of a lack of “legal cause.”
The Lowman court first acknowledged that there is a distinct similarity between the policy determinations that arise in discussions of duty of care, as well as those of legal cause. Both involve analyzing the scope of liability and whether a certain action should result in liability for negligence.
In the context of these roadway design cases, what the Lowman court had to say is that the policy determination under “legal cause” should mirror the policy determination under duty of care. Again, “legal cause” should be found (or, at least not precluded) even when the driver herself is negligent or reckless at some level.
There was rhetoric in the Lowman case discussing how certain trial courts were managing to evade finding liability after Keller by using “legal cause” to overcome liability, even when the defendant was said to have breached the duty of care under Keller. The Lowman court sought to close this “back door.” The court stated that it is good policy to have consistent case law on these two discrete issues that allow trial courts to exercise judgment in the realm of policy determinations.
In sum, Keller, decided roughly ten years ago, made it quite a bit easier for a plaintiff in Washington to make out a successful case against a municipality for negligent roadway design or maintenance. Now, with Lowman, another tool has been provided to plaintiffs in this area of law.
(This post is intended to be educational and should not be construed as legal advice. If you have questions or believe these issues affect you or your case, please contact an attorney.)