Reasonably Safe Roads for Ordinary Travel

Posted Thursday, September 15, 2016 by Ed Harper

Recently, the Washington Supreme Court provided clarification for what constitutes the extent of a municipality’s duty and the effect on legal causation. In Lowman v. Wilbur, 178 Wn.2d 165, 309 P.3d 387 (2013) the court looked at an opportunity to “clarify the interrelationship between questions of duty and legal causation in the context of a municipality’s obligation to design and maintain reasonably safe roadways.” Lowman at 389.

On the night of August 5, 2005, Nathan Lowman and Jennifer Wilbur left a bar together. Wilbur drove and as her car was proceeding down a steep, winding hill, she lost control of her vehicle, left the road and hit a PSE (Puget Sound Energy) utility pole. The utility pole was located 4.47 feet from the edge of the roadway. Lowman was severely injured.

Lowman brought a negligence claim against Wilbur, PSE, Skagit County and others. As to PSE and Skagit County, Lowman presented evidence that the utility pole placement was too close (within a 10 foot clear zone) from the edge of the roadway. However, other evidence showed that Wilbur was speeding at the time of the accident and that she was driving while under the influence of alcohol. Lowman at 389.

“This court in Keller v. Spokane, 178 Wn.2d 170, has held that a ‘municipality owes a duty to all persons, whether negligent or fault free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.’” Keller at 249. Thus, the Wilbur court was going to have to decide if this included the actions of Wilbur and Lowman, even though they may have been under the influence. As mentioned above, the municipality and utility company’s responsibility does extend to all persons using the road in an ordinary manner. As the court in Lowman articulates, “We cannot disregard Keller’s holding that the responsibility to design and maintain reasonable safe roadways extends to both at fault and fault free drivers.” Lowman, at 390.

The question of legal causation is based on how far public policy should extend to protect the innocent and the not so innocent drivers, if their actions are foreseeable. “Legal cause ‘is grounded in policy determinations as to how far the consequences of a defendant’s actions should extend’”. Lowman, at 391. Thus, if Lowman’s injuries were in fact caused by the placement of the utility pole, and/or in any combination thereof, then “they cannot be deemed too remote for purposes of legal causation.” Lowman, at 391.

Thus, the court found no reasonable basis to not extend the potential responsibility, contrary to the trial court’s finding, to the municipality and the utility company for their agreed negligent placement of the pole, in being too close to the roadway.

“Whatever the reasons for a car’s departure from a roadway, as a matter of policy, we reject the notion that a negligently placed utility pole cannot be the legal cause of resulting injury.” Lowman at 391.

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