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.
It seems to me that this grieving family deserves justice in human compassionate form, the kind one would expect in societies in biblical times when the town leader, whatever title they would be given in those long ago days, would be asked to decide how to provide a resolution. This family is going to be put through a ringer of legalities: who’s liable – not me, no not me, no not me —-
How many of us have used one of those GPS systems —- and this situation is the reality check that NO ONE is liable except us, the person who has chosen to use the service — really?
I wish this family good luck in their future — they’re going to need it.
I’ve driven past a few ‘Storrows’ on Storrow Drive.
This author apparently does not live in NC. I live in catawba county. The county does not maintain roads in NC. It is either a state road, city road or a private road. In this case, it is private. The subdivision was built by a company called shook a
& Tarleton. The subdivision does not have an HOA, which normally would be responsible for the repair. The state has no responsibility for repairs to a bridge on private property. So the responsibility solely lies with Shook & Tarlton. So sue them…oh wait. They went out of business over a decade ago. This is why thea bridge was never fixed. Barriers are also the responsibility of the private bridge owner.
I grew up in Catawba county and the last time that I was there was in 2014 to move my mother-in-law out of her rented condo which was managed by Shook and Tarlton so did not know that they went out of business.
They still have a website https://shook-tarlton.com/
It was reported that shook and Tarleton that built out subdivisions went bankrupt.. I think the company that exists today is different owners, maybe different family members. I remember that when S&T was developing subdivisions with that building supply company that was on springs road.
The story states “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.”
Years of fruitless effort to change things, yet Google maps ‘directions’ continue to direct motorists to the main road on which the ‘resident’s only gate’ for our community is situated instead of the main road on which the main entry gate is situated.
Legal analysis aside, if I were in the jury, I would nail the state AND the “building” owners: they were both obviously avoiding the cost of repairing the bridge and in their zeal to escape liability, allowed this dangerous condition to exist for EIGHT YEARS!! Let the award be a lesson to those insismilat circumstance: either get together and resolve the issue or receive triple liability later!
Turley,
Pray tell… how does a road atlas help you? The information is only valid at the time of printing.
Your digital maps along w GPS also may not reflect accurate information. Most of the information on your map comes from having the map data acquired by having a fleet of cars to actually drive the roads and capture that data via (GPS, photo, and LIDAR) sensors. There’s a lot more to this and turning the data into maps.
Add to this that not all roads are equal and are reflected in the map data. road links have grades so that you don’t normally see trucks driving thru suburbia side streets. (Waze ignores this data when providing routes)
The issue that you ignore is that even if the bridge is on private property as you allege… there has to have been an easement granted.
Now you need to look at who is responsible for maintaining the bridge or signs on that said easement. Those are the people who may have culpability.
As to the driver’s partial liability… was the Jeep in driving and working condition? Meaning all of the required lights working? Was the driver speeding and ignoring the posted speed limit? In other words… if you were driving at legal speed limit on a dark unlit road and the bridge is out with no warnings… would you have time to stop?
That’s the question.
-G
Ah Turley… now you need to learn a bit more about GPS and digital maps.
First, GPS is a positioning system. Your receiver gets clock signals from as many of the GPS satellites as possible. The more satellite signals, the greater the precision. Also it depends on your receiver’s clock. This just gives you the X,Y and Z coordinates of your location. To get more accurate w your cell phone, they use a system of A-GPS or assisted GPS. This uses a clock signal from a known position on the earth, like the cell tower. Map data is gathered by having a fleet of cars driving all of the roads with sophisticated equipment including cameras and LIDAR sensors. There is more to this but this is the basic acquisition method. The roads are comprised of road links and these are graded. This allows for truck route maps. There is then a ‘mechanical turk’ of kinds reviewing images and placing signs and relevant visual information like low bridge details. Note that with advances in AI, this is now being done more by machines than humans. (And in some cases more accurately.)
Now in terms of map data, it takes time to drive all of the routes in the US. So new roads may not show up and then it depends on how they systems are being updated. (Apple / Google will update maps in subjective real time when the data is available. ) When a route becomes unavailable, it takes time to be reflected in the maps. So your static system where your maps are updated by CDs will not have the data as quickly as Apple/Google, if at all. In these systems you have a combination of reports and traffic data being over layed on the map data.
So a bridge can be washed out, and it may never get reflected in the data.
The auto manufacturer or map data provide can’t be held liable.
This would mean the negligence is on the county or road maintainer.
While in this case the road is on private land. If true, then the land owner must have given an easement to the city/county. This opens either the land owner, or the city/county to some liability for maintaining the road on the easement. (Or both) Or placing signs about the bridge being washed out.
Note: In rural OH, I’ve taken county roads where bridges have been washed out. Signs are placed long before you get to the bridge as warning. Along w ‘road closed except to thru traffic.’ This would remove the excuse that the signs were washed away in the storm because they are far enough away to give the driver a warning and not be washed away.
So Turley, the lawyers will do what all lawyers do. Sue everyone and then let them settle or get dropped from the lawsuit as you go to trial.
-G
Apple or Google maps or other app based directions are only an aid and do not substitute for common sense on unfamiliar roads (I assume it was unfamiliar to the driver in this case) at nite with slow speeds and as much light as you can generate. That being said, I would suspect good jury selection will be the key in this case if neither the state nor owner erected barricades or specific warning signs of a bridge out. The is a whole new level of concern generated when you see “Bridge Out” rather than “state maintenance ends here”. Thats like saying “low water crossing in Texas” which actually means that in a heavy rainstorm your car and anything close to the “crossing” could be swept away by a flash flood. Having grown up in the south and traveled many such roads and crossings I expect that many people likely to be on a jury would see this as negligence of the state and owner of the bridge and would probably go after the deepest pocket. I drive with Apple and Google maps both but only to get in a general direction. But nothing substitutes for eyes and judgement. I also keep a recent road Atlas in my vehicle. When you absolutely, positively need to be sure.
not GPS fault. Does the GPS have to tell you when a person is in the road?
GPS only provides an X,Y and Z position of the receiver where the accuracy depends on the receiver’s clock and how many signals it receives.
The map data is completely different issue altogether.
But to the larger point, the digital map data is a ‘best effort’ and its caveat emptor because it may not reflect washed out roads or dangers on the road.
(This is also a potential issue w autonomous driving which is what you’re trying to talk about.)
-G
So unbelievably sad. However, it brings to mind the issue that lawsuits and monetary awards never make up for the loss of life …. and a society that thinks they do has actually cheapened life and reduced it to monetary value. I pray for his family at this great time of grief and hope that greedy lawyers stay away and let them heal.