What Law Governs Guardrail Spearing Injuries in Texas

By Michael GrossmanOctober 03, 2016Reading Time: 6 minutes

Just a couple of weeks ago, outside of Amarillo, a passenger was speared by a guardrail in a car accident. According to reports, the passenger suffered a severe leg laceration and it is possible that on-scene first aid saved their life. While being speared by a guardrail isn't the first injury that pops to mind when people think of the many dangers on our highways, it has been a persistent problem on American roadways since the advent of guardrails.

In fact, over the last 50 years, the American Association of State Highway Officials (AASHO) has issued periodic reports about guardrail safety and issued new guidelines for guardrail construction, in order to minimize injuries and fatalities. Simply put, guardrail spearing is not a new problem.

While at first blush it may appear that there is very little that those injured or the surviving family members of those killed in guardrail accidents can do, the fact of the matter is that their are multiple legal avenues available to such victims. While it may seem complex, those who have been injured by dangerous guard rails may either have a products liability case against the manufacturer of certain particularly dangerous guardrails, or a premises liability cause of action against the government in charge of maintaining the highway. In rare instance, both claims may be appropriate.

Guardrail Spearing Outside of Amarillo
Accident near Amarillo 9/17/2016.

Guardrail Accidents as Premises Liability Claims

Let me get the disclaimers out the way on this one. Guardrails absolutely save lives. They keep cars from careening off the road into dangerous terrain. This is without a doubt a good thing for wayward motorists. Some people might see a lawyer talking about lawsuits against guardrail manufacturers and jurisdictions who don't properly install them and think, "Just another lawyer trying to penalize the government for their efforts to save lives."

I'm not suggesting that we rip out all guardrails, but the price for the lives they save cannot be borne by "unlucky" individuals who are speared by guardrails. Guardrail spearing has been a recognized problem for over 50 years. To their credit, many government highway agencies have done their best, constantly incorporating new guardrail technology in an attempt to mitigate the potential spearing hazard. However, there are a fair number of agencies who have neglected their duty and it is possible to drive down the highway and still see numerous, out-dated, dangerous guardrails.

Many jurisdictions will argue that the cost of replacing dangerous highway guardrails is prohibitive. This would be understandable on recently built highways that used the best available technology at the time, but as I mentioned before, there are some dangerous guardrails that have been known to be dangerous for almost a half a century, but they're still there, a potential hazard to unlucky motorists.

For the expense argument to make sense, a government would have to show that over 10, 20, 30, or even 50 years there was never adequate funding, or the means of obtaining adequate funding to fix these dangerous conditions.

The area of the law that covers situations such as these is premises liability law. Just like any other property owner, the government has a duty to remedy dangerous property conditions. This can include dangerous roadway designs, improperly maintained roadways, and known hazards like improper guardrails. When the government fails in this duty and injuries result, the injured have grounds to pursue compensation.

Factors that can influence the likelihood of success include how recently the guardrails were installed, whether they were using the latest, safest guardrail technology available at the time of construction, and whether the guardrails were properly installed. The only way to answer many of these questions is through a thorough, professional investigation. Most injured victims cannot afford the expense of such an investigation, but any personal injury attorney worth their salt has the resources to conduct just this kind of investigation. They generally do so at no cost to the injured victims.

While not a factor in determining the merits of the case, it is also necessary to determine, which agency, county, city, state, or private company is responsible for the maintenance of the portion of the highway where the incident occurred.

The main defense available to most property owners after an accident on their property is that it wasn't foreseeable. Contrary to how some may portray the civil justice system, foreseeability is one of the safeguards that prevents people from being responsible for circumstances that they could not have been reasonably expected to exert any control. This defense doesn't fly in guardrail spearing cases, because these dangers have been known in the road construction community since before man ever set on the moon and when leaded gasoline was still king of the road. It's hard to argue you couldn't foresee a danger that's been known since the 1960's.

Of course, pursuing a premises liability claim for guardrail spearing against the jurisdiction in charge of the road where the incident happened isn't a panacea. Like any other lawsuit against a government entity, the amount of damages that can be recovered is usually restricted by statute. In Texas, the Texas Tort Claims Act limits the amount of money that can be recovered in a lawsuit against the government. For lawsuits against cities and the state, damages are capped at $250,000 for an individual, with a maximum $500,000 payout for a single incident. The respective caps are $100,000 and $300,000 for counties and other municipalities.

Additionally, those who wish to pursue a claim have to act quickly, because the law also places a notice requirement in order for a suit to proceed. On top of the normal statute of limitations, a government entity has to be notified of a suit within a specified time period, which can range from as little as 45 days to as much as 180 days. If proper notice is not given, this can provide grounds to dismiss the entire lawsuit.

While most people assume that their insurance will take care of their injuries in an accident, the fact of the matter is that in a good portion of guardrail spearing accidents, the driver who hits the guardrail will be found to have caused the accident. Further complicating matters is that many guardrail spearing accidents are single vehicle accidents, which can negate even uninsured motorist (UIM) and personal umbrella protection (PUP) policies. Ultimately, while the amount of compensation one can obtain pursuing the government who negligently maintained the road is capped by statute, it is often the only source of compensation available to many injured victims.

Guardrail Spearing and Products Liability Law

The vast majority of guardrail spearings are governed by premises liability. However, there are a small sub-set of these accidents which involve a specific type of guardrail that can be pursued as products liability cases. These cases involve Trinity Industries ET Plus guardrails and have been subject to much litigation.

While the previous iteration of ET guardrails are considered the gold-standard when it comes to combating guardrail spearing incidents, the ET Plus has actually been banned in dozens of states. As the result of a 2014 lawsuit, Trinity Industries had to pay almost $600 million in penalties due to misrepresentations of federal safety certification for the ET Plus. While that verdict is under appeal, there have been numerous studies that show the ET Plus guardrail is far more likely to cause injury than older models.

One of the cornerstones of products liability law is that a manufacturer has been negligent if there is an alternative safer design. In most instances, for this strategy to work and the case to be viable, it is up to the injured person's attorney to demonstrate that cost-efficient safer designs exist, using current technology. This makes these arguments difficult given the criteria that has to be met. However, given the amount of research that shows Trinity Industries' previous generations of guardrails may be far safer than the ET Plus, it's next to impossible for them to argue that they didn't have an available safer design when they were manufacturing one as recently as 15 years ago.

For the group of motorists injured by an ET Plus, the benefits of pursuing their cases as a products liability cases is that they can potentially obtain full compensation for all of their injuries, as opposed to capped compensation in either an auto insurance policy or in a suit against a government agency. While the upside may be better, the downside is also very real. Trinity Industries is a multi-billion dollar firm, with an army of attorneys who have a wealth of experience defending Trinity in these kinds of cases. That makes them a formidable adversary.

None of this is meant to give the impression that these cases cannot be won, they can be and they are won all of the time. Rather, it is important that anyone involved in a guardrail spearing accident to have a full picture of the legal road they are venturing down.

Justice for Guardrail Spearing Accident Victims

There are a lot of people who would argue that highlighting this issue is a waste of time, because their are so few victims in a given year. However, there are probably very few road hazards that have combined to be so persistent, deadly, and rarely discussed. For injury victims, the rarity of their injuries is of little consequence. The fact is that they are injured, by someone else's negligence, and they need help.

In fact, those who are least likely to seek help are those who are unaware that there is help out for their particular problem. For those victims their problems are just as real as those who have been injured in a drunk driving wreck, an 18-wheeler crash, or by a negligent employer.

The key to having the best possible outcome for your case and getting the help you need is to have the right attorney. While many attorneys have experience in premises liability cases and quite a few have experience in products liability law, there are fewer who have significant relevant experience in both areas of the law. This experience in all aspects of guardrail spearing litigation is crucial to getting the best possible outcome for your injury case.