Not Afraid v. Mumford – Government Liability for Dangerous Road Design


Whenever there has been a serious injury or death caused by a roadway accident, it’s imperative that inspection of that road be undertaken right away by knowledgeable highway design experts.

In some situations, dangerous roads and unsafe conditions on public property can contribute to the cause of a crash or the severity of it. The reason personal injury lawyers must get involved right away is that law enforcement officers almost never cite “poor design of road” or “improper road maintenance” as a cause of a crash. That has to be independently proven by a victim’s legal team.

What we would be looking to determine is whether there is government liability for lack of maintenance, failure to correct a dangerous condition or bad road design. And anytime government entities are involved as defendants in a case, the legal issues can quickly get thorny. Expert consultants and witnesses are critical in these matters.

That was seen in the recent case of Not Afraid v. Mumford, weighed by the Montana Supreme Court.

According to court records, plaintiff was paralyzed – and another passenger died – in a single-vehicle wreck. Behind the wheel was a 19-year-old man who was later determined to have a blood-alcohol level of twice the legal limit. The vehicle was traversing a winding road at a rate that exceeded the 25 mph speed limit (the exact pace of the vehicle was in dispute) and crashed into a concrete guardrail while rounding a curve. All five occupants of the vehicle were ejected.

Plaintiff, who was 17-years-old at the time, was paralyzed from the chest down. A 19-year-old passenger was killed.

The driver was later arrested, charged and convicted of vehicular homicide, felony negligent vehicular assault and misdemeanor negligent vehicular assault. A first-time offender and former student athlete, he was sentenced to 30 years in prison and ordered to pay $500,000 in restitution. His prison sentence was later reduced to 20 years, with 15 years suspended, which means he will serve a total of five years in prison.

Plaintiff had a few legal options in this car accident lawsuit. Although restitution payments do not necessarily preclude civil litigation, it’s unlikely that a 19-year-old felon with no college education will have many assets from which to collect. It is possible if the teen had auto insurance – or if the car he was driving was insured – that he could pursue damages against the insurance company. If the vehicle was owned by someone else, he could have potentially sought to assert a claim of vicarious liability against the vehicle owner. Alternatively, this being a case of underage drinking and driving, he might have explored the possibility of a case against the establishment that provided the driver with alcohol, if that was applicable to the circumstances.

Or, as he did in this case, he could pursue the agencies responsible for alleged negligent road design.

Two years after the crash, plaintiff retained two accident reconstruction experts. They went to the site of the crash, analyzed it and reviewed certain documents. They concluded that the vehicle was traveling an estimated 45 mph and the concrete barriers were tilted about 15 degrees. Based on this, the experts opined the barriers were not properly installed, and thus were rendered largely ineffective in containing vehicles at higher speeds – which is a reasonably foreseeable danger.

Plaintiff subsequently filed a complaint against the city’s public works director and against the state, county and city. He alleged negligent placement, installation and maintenance of the concrete barriers. The city retained its own accident reconstruction expert, who asserted the vehicle was not traveling 45 mph, but rather 73 mph, and further that the barrier was only tilted as a result of the vehicle’s impact to it, based on investigation photographs that appeared to show fresh disturbances to the base of the barriers.

Defendants moved for summary judgment, and trial court granted them. Montana Supreme Court affirmed. In its review, the court stated plaintiff failed to offer substantive proof of regarding the standard of care owed by defendants and didn’t produce any expert witness testimony that related to the professional standards for placement, maintenance or installation that defendants may have violated.

If you have been injured in an accident, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Not Afraid v. Mumford, Dec. 1, 2015, Montana Supreme Court

More Blog Entries:

Trucking Company Sued Over Crash That Killed Young Mother, Nov. 19, 2015, Boca Raton Car Accident Lawyer Blog