Jonathan Turley – A tragedy in North Carolina could present rather difficult torts questions in a wrongful death case for a grieving family. Phillip Paxson, 47, is a father of two who died after he drove his Jeep at night over an inoperative bridge in Catawba County.
His GPS took him on the route and neither the GPS nor the bridge had any warnings that the bridge was destroyed in heavy flooding in July 2013. While his death was due to the negligent lack of road barriers, his family will face considerable legal barriers to recovery that could prove insurmountable.
Paxson was returning from his oldest daughter’s birthday party in Hickory when his GPS took him on the fatal route on a dark and rainy night. The route took him down a road that dropped off into the river. There were no barriers or warning signs put into place after the bridge was destroyed, according to the family.
A 2014 article titled, “BRIDGE TO NOWHERE: No resolution in sight for neighborhood’s gaping hole,” in the Hickory Record stated that eight months after the flood, the bridge was “still in disrepair.” Barricades were reportedly placed on the road to warn drivers at one time but those barricades were washed away in a later storm.
That obviously creates a strong case for negligence. The barricades were a minimal precaution but, after acknowledging their necessity, they were not replaced after a subsequent storm.
While I am not a North Carolina lawyer, the state does not appear ideal for plaintiffs in this type of action and the facts of the case could present other difficulties.
The question of the defendant may present the first barrier. A local report states that the road is the quickest way out of the county (and thus may have been chosen on a GPS app for that reason). However, it appears that the county maintained road ended a few blocks before the bridge area. There is a sign reading “state maintenance ends here.” The North Carolina Department of Transportation stated that it has no authority over the bridge, which is on private property.
However, there is the question of whether the state has a legal duty to warn drivers on the portion of state-controlled road. Since the road leads to the hazard, one could argue that there should have been barriers constructed or action taken to warn drivers of the hazard down the road. Indeed, given the obvious risk, the state could have argued that the conditions were a public nuisance given the access from the road.
The private owners would appear the most obvious defendants. There did not appear to be any barriers to prevent the public from continuing down the road and it is not clear what signs were present to warn that this was private property.
While the owners could claim that Paxson is a trespasser, he was at a minimum an anticipated trespasser given the access to the bridge. Under common law, a discovered or anticipated trespasser is generally owed a duty to warn of (or make safe) any dangerous conditions that are known and non-obvious.
In North Carolina, however, the rules are a bit more difficult for plaintiffs. The common jury instruction states that “in North Carolina, the general rule is that [an owner] … [or an occupant] of land does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser.” It also states that “(The [owner] … [or occupant] of land is not required to anticipate the presence of a trespasser.)”
However, there can be liability for failure to carry out a duty required under state law or for otherwise “willful or wanton” conduct. That latter term included acts “in conscious or reckless disregard for the safety of others.”
A property deed suggests that the property belongs to Keener, Shook and Tarlton. However, that partnership dissolved in 1994 and WCNC Charlotte reporter Jesse Pierre was told at a rental office called Shook and Tarlton in Hickory that they only purchased a building three years ago but “with no assets.”
The question, therefore, is who holds ownership (and liability) for the partnership property.
There is also the potential liability of the GPS system, though it is unclear whether he was using an App like Google Maps or a car manufacturer’s system. In all likelihood, it was a phone-based app.
Most apps include disclaimers under its terms of conditions that the app is not responsible for accidents that result from unknown or undisclosed risks. Google maps, for example, contains this disclaimer in all caps:
14. Disclaimer.
Except as expressly provided for in the agreement, to the fullest extent permitted by applicable law, google: (a) does not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the services or software; (b) makes no representation about content or information accessible through the services; and (c) will only be required to provide the remedies expressly stated in the sla for failure to provide the services.
Google maps core services are provided for planning purposes only. Information from the google maps core services may differ from actual conditions, and may not be suitable for the customer application. Customer must exercise independent judgment when using the services to ensure that (i) google maps are suitable for the customer application; and (ii) the customer application is safe for end users and other third parties.
There have been lawsuits, including truckers who have sued for being “storrowed,” or struck under bridges due to the lack of notice on the limited height of the bridge clearance. I have not seen a successful action. Indeed, such truckers have found themselves sued in areas like Boston where storrowing is common and causes damage to bridges. Notably, state officials have recently given GPS companies data on low bridges and asked them to include the data as warnings to drivers.
There are plaintiff’s conduct issues in such cases like Rosenberg v. Harwood in which Rosenberg sued Google for walking directions that directed her to cross a rural highway with heavy traffic and no sidewalks. She was seriously injured after being struck by an automobile that was negligently driven by Harwood. The court ruled for Google:
“I conclude that it does not require the imposition of a duty. As a preliminary matter, I note that nothing in the Complaint indicates that there was any contractual or fiduciary relationship between Google and Rosenberg that would give rise to any contractual or fiduciary duties on Google’s part.
Likewise, the Complaint does not allege that Google “deprived [Rosenberg] of [her] normal opportunities for protection” or that the parties otherwise had a special relationship that would impose on Google a duty to protect Rosenberg from the negligence of a third party like Harwood. RESTATEMENT (SECOND) OF TORTS § 314A(4) (1965); see also Yazd, 2006 UT 47, ¶ 18 (“A person has no legal duty to protect another person from the conduct of a stranger unless the person upon whom a duty is sought to be imposed has a `special relationship’ with either the stranger or the potential victim.”)…
Consequently, any duties would have to arise from the relationship created when Google provided the walking directions via its Google Maps service, and Rosenberg used the Google Maps service to obtain the directions…
…However, “[a] relationship that is highly attenuated is less likely to be accompanied by a duty.” … Therefore, the fact that Google provided the same information to Rosenberg that is available to limitless other users of the Google Maps service does not warrant imposing any heightened duty on Google. Indeed, given the attenuated relationship between Google and all the users of the Google Maps service, any duties owed to users like Rosenberg would be minimal.”
The other challenge is that drivers and pedestrians are required to be observant and heed traffic and conditions that they encounter. In this case, any defendant would likely argue contributory or comparative negligence on the part of Paxson.
This is a particular problem in North Carolina which is one of just a few states that follow a contributory negligence rule barring recovery if you are even one percent negligent. I have been a critic of this traditional rule as unduly harsh and inequitable.
Paxson would likely be found partially responsible for not exercising greater care given the weather and road conditions. This could be magnified by the sign warning that he was continuing on a road that was not maintained by the state or county.
While North Carolina attorneys note that juries tend to require more than a one percent contributory negligence as a bar, it would present a tough challenge for this family. (There was a victory for bike users in the state that allowed recovery recently).
The family is obviously grieving and North Carolina generally allows three years for the filing of a personal injury action under the statute of limitations. They should consult with North Carolina counsel on whether a viable challenge can be brought in light of these legal barriers.
SF Source Jonathan Turley Oct 2022