According to a study by the Institute for Research & Evaluation commissioned by The Transportation Construction Coalition and released May 2009, roadway condition is a contributing factor in more than half—52.7—of the nearly 42,000 American deaths resulting from motor vehicle crashes each year and 38 percent of the non-fatal injuries. In terms of crash outcome severity, roadway condition is the single most contributing factor—greater than speeding, alcohol, or non-use of seatbelts. Although the study was limited to motor vehicles, and the facts that motorcycles are lighter and less stable, it is a sure bet that roadway conditions are a contributing factor in at least the same percent of cases of motor vehicles, and most likely higher.

Five elements must be proved by the injured party or heirs to prevail in a case against a public entity for injuries or loss of a loved one:

• 1. The public entity owned or controlled the road(s) involved in the accident;
  2. The roads involved were in a dangerous condition at the time of the accident;
  3. The dangerous condition caused the accident;
  4. The accident occurred in a way which the public entity could reasonably anticipate would result from the dangerous condition; and
  5. The dangerous condition resulted either from the public entity’s carelessness (negligence) of a public employee’s negligence or from the public entity’s failure to take reasonably prompt remedial action in response to receiving actual or constructive notice of the dangerous condition.

However, the public entity and employee have certain immunities from lawsuits that make handling a motorcycle case against a public body more difficult. The California Government Code gives immunity to public entities (state, county, city, etc.) and public employees for injuries caused by the plan or design of a construction or an improvement to public property. Although this “design immunity” applies to all construction or improvements of any public property, it is most often raised as a defense in cases involving highways and streets that are allegedly defective in design and caused injury or death to a motorcyclist.

Under the design immunity rule, a motorcyclist who was injured by a defect in the highway or road ordinarily cannot recover any monetary compensation from the governmental entity provided the governmental entity or public employee can prove three things: (1) the design was approved by the governmental board or agency in advance of the work starting; (2) there is any substantial evidence from which the court may determine that a reasonable public employee or legislative body could have adopted the plan or design; and (3) the negligence design was a fault in causing the accident.

However, the government’s immunity is limited to design-caused accidents. It does not relieve the governmental body from liability caused by negligence independent of the design, such as a failure to warn of a dangerous condition or the failure of the governmental body to maintain the road or highway in a reasonably safe condition.

Design immunity applies only where the design or plan was expressly approved in advance. It does not apply to details or features that were not considered by the governmental body in approving the plan. In one case, a driver was hit head-on by another vehicle that had illegally crossed into her lane of travel. The vehicle went over a steep embankment into a channel from which the embankment had been excavated and overturned, causing the drowning death of the driver. The heirs of the driver were successful in their lawsuit against the State of California, as the State failed to show that the public official having discretionary authority to approve the design in advance of the construction had considered the embankment’s steep slope. Since the immunity defense does not apply to decisions that have not been made prior to the plan’s approval, the court held that the doctrine of design immunity did not bar the survivors’ suit and they could proceed with the matter.

Design immunity also does not provide a defense where the physical conditions have changed since the design was approved. When there has been a change in conditions, the public entity is given a reasonable time to obtain funds for the new construction necessary to eliminate the danger. If the public entity is unable to remedy the danger because of impracticability or a lack of funds, the immunity nevertheless continues so long as the public entity provides adequate warnings of the dangerous condition.

Some of the dangerous road conditions for which a public entity can be held liable include:

• Dangerous curves in the road (failure to put up a warning sign or an improper bank)
• Dangerous slopes and dips
• Hazards obstructing the motorcyclists vision, such as trees and shrub at an intersection
• Failing to warn of or keeping the road free from loose gravel (which is more dangerous to the motorcyclist than ice)
• Road surface with inadequate skid resistance
• Uneven pavement and shoulders
• Improper drainage that causes the road to become wet or puddles to form
• Improper signal timing or faulty signals
• Broken, defaced, deteriorated, or missing traffic signs or signals (such as a missing stop sign)
• Poorly marked shoulders that are not visibly distinct from the road
• Failure to maintain the road (such as by fixing potholes and cracks and removing debris)
• Missing median barriers
• Missing guardrails
• Inadequate lighting on roads and highways
• Missing or poorly marked construction zones
• Dangerous or unmarked railroad crossings
• Dangerous street or pavement drop-offs, such as cliffs or ravines
• Narrow lanes
• Inadequate clear roadway to allow a motorcyclist who has run off the road to regain control of his or her bike
• Lack of yellow line or other pavement markings
• Hazards adjacent to the roadway
• Dangerous bridges
• Short or reduced radius freeway off-ramps

California law provides that condition of public property is not dangerous merely because the public entity failed to provide regulatory traffic control signals, signs, or “distinctive roadway markings.” However, if the dangerous condition of the roadway exists for reasons other than or in addition to the failure to provide traffic controls, signs, or markings, the public entity is financially responsible (“liable”) for the deaths of or injuries to the motorcyclist and his or her passenger, if any.

A public entity is immune from liability only in those situations where the dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory traffic device street marking. If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signs or markings, the public entity is liable for damages or deaths arising from the accident. Thus, if an intersection is dangerous not only because of the lack of warnings or regulatory signs or signals but also because of the presence of other factors such as the presence of trees and brushes that block the view of any regulatory signs (such as stop signs), the public entity is legally responsible for the injuries or death.

Generally speaking, a public entity is not liable for an injury or death caused by the failure to provide traffic or warning signals, signs, markings, or devices described in the Vehicle Code. However, this statute does not relieve the public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking, or device was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. In other words, if the dangerous condition constitutes a hidden “trap” to the motorcyclist, resulting in his or her being injured or killed, the public entity can be held liable for the injuries or death. A trap is a condition that is not reasonably apparent to, and would not have been anticipated by, a motorcyclist exercising due care.

For a public entity to be held liable for a defective dangerous road, the defect must be created by a public employee, or the public entity must have had knowledge of the defect in sufficient time to fix it. There are two types of notice, either of which will suffice to make the public entity liable. The first is “actual” notice, in which the public entity, through its employees, actually knew of the defect. The second type of notice is “constructive” notice. A public entity has constructive notice of the dangerous condition when the condition has existed for a such a length of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Evidence that may be presented at trial includes whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe for the use or uses for which the public entity actually knew others were making of the public property or adjacent property. Also admissible as evidence in a trial is whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

If you have been injured or a loved one killed due to a dangerous road motorcycle accident, you should contact an experienced personal injury law firm as soon as possible. When deciding on which attorney or law firm you should hire to represent you, you should be guided by several factors. First of all, you should choose someone with experience in your type of injury. Second, you will want a lawyer or law firm that is competent, able to handle the case. Third, you want a lawyer or law firm with integrity. Fourth, you want to retain a lawyer or law firm that has the highest ethical standards.

It is also important to contact an experienced personal injury law firm promptly, as the law firm may want to send its own investigators to examine the evidence before it is lost or changed. In a case involving dangerous roads, it is especially important that the investigator get to the scene of the accident as soon as possible to prevent others from changing it. The investigator will want to take pictures of the accident and dangerous road, as well as inspecting and taking pictures of the damaged motorcycle. Finally, the investigator will want to talk to any and all witnesses to the accident as soon as possible, while the facts are still fresh in their minds. The lawyer may want to hire an expert in traffic accident reconstruction to recreate exactly how the accident happened.

An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. The attorneys in the firm can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, loss of enjoyment of life, and all of your other injuries and damages.