Liability in a guardrail injury accident may be due to negligence, premises liability, or product defects liability. Under these causes of action, a guardrail injury accident may be the responsibility of:
- City, state, or federal government;
- Guardrail design or manufacturing companies; and/or
- Construction companies that built or installed the guardrails.
In a fatal car accident caused by a faulty or dangerous guardrail, the family members may be able to file a wrongful death lawsuit against those responsible. A wrongful death lawsuit allows the family to sue for damages to cover funeral expenses and replace the loss of income the deceased would have provided.
Our personal injury lawyers discuss the following frequently asked questions about guardrail injury and defective highway guardrail lawsuits:
- 1. What causes highway guardrail injury accidents?
- 2. Who is at fault for injuries caused by defective guardrails?
- 3. How much can I sue for damages after a guardrail accident?
- 4. How long do I have to file a guardrail injury accident lawsuit?
If you have further questions about guardrail accidents after reading this article, we invite you to contact us at Shouse Law Group.
Guardrails are barriers that are intended to keep vehicles from going off the road or crossing over the median. Guardrails are for cars that may drift off course or for vehicles in accidents to prevent the car from going down a hill. Unfortunately, defective design and faulty construction mean highway guardrails can increase the risk of injury or fatality in car crashes.
A number of people have been killed in motor vehicle accidents when their vehicle struck guardrail ends. Guardrail end accidents include head-on impacts and t-bone accidents. In some of those accidents, the guardrails did not perform as intended. In many of those crashes, the guardrails impaled the vehicles when the car ran into the guardrail end.1
Guardrail ends are generally intended to “telescope” upon impact. This is supposed to slow down and control the vehicle and absorb some of the impact. However, many of the guardrails did not telescope, as intended, when impacted at higher speeds. Instead, the guardrail ends impaled the vehicle.2
Any type of motor vehicle accident can involve a collision with a guardrail. This includes running into a guardrail end, or a multi-vehicle accident that sends a vehicle into the guardrail. Guardrail injuries can include:
- Broken bones,
- Glass injuries,
- Head injuries,
- Back injuries,
- Internal bleeding,
- Neck and spinal injuries,
- Catastrophic injuries,
- Burn injuries,
- Electrical injuries,
- Loss of a limb, or
- Other severe injuries
The individual, company, or group responsible for causing the accident includes whoever is liable for the damages. In a guardrail accident lawsuit, the possible defendants could include:
- Local, state, or federal government,
- Construction company,
- Guardrail company / designer,
- Guardrail manufacturer,
- Guardrail distributor or vendor, or
- Individual employee.
Fault in a guardrail accident can depend on what caused the accident or made it worse. Liability in a guardrail injury accident can be based on one of the following causes of action:
- Premises Liability, or
- Product Liability
Negligence occurs when the defendant breaches a duty of care owed to the victim, which causes injury.3
Defective guardrails can increase the risk of injury or death to a driver and passengers. Telescoping guardrails are intended to absorb impact and slow and control a vehicle. However, manufacturing and design defects can cause guardrail heads to come off or get stuck, impaling the vehicle and causing serious injury or death.
Under product liability laws, the manufacturer, designer, seller, and distributor may all be strictly liable for defective products. In a defective guardrail case, product liability lawsuits may be based on:
Under product liability laws, the plaintiff may not have to show that any individual or company was negligent. Instead, anyone who designs, manufactures or sells a defective product is strictly liable for damages caused by the product defect. Generally, the plaintiff needs to show:
- The defendant designed, sold, distributed, or manufactured a defective product;
- The product was defective when it left the defendants’ possession;
- The product was used in a reasonably foreseeable way; and
- The plaintiff suffered damage as a result of the defective product.4
Negligent Design or Manufacturing Changes
One guardrail manufacturer has been subject to multiple lawsuits for changing the initial design of the guardrail, failed to disclose the changes, and made dimensional design changes that altered the original design to save the company $50,000 annually.5
A study found the Trinity ET-Plus guardrail system design was nearly 3 to 4 times more likely to produce a fatality in guardrail crashes than the ET-2000 design.6
In a jury trial, the company Trinity was determined to have had made false claims to the government when they altered their guardrail design, and awarded a whistleblower and the Federal Highway Administration (FHWA) $175 million in damages.7
Negligent Warnings and Installation Instructions
Another guardrail manufacturer may have provided defective guardrail instructions or failed to provide proper product warnings. According to the State of Tennessee Department of Transportation, the Lindsey Transportation Solutions X-Lite End Terminal concluded: “unclear instructions may have caused installation deficiencies, which could result in the terminal performing differently from the original test conditions.”8
Most guardrail accidents occur on public highways or roadways. The responsibility for maintaining these roads generally falls on state, local, or federal government. When the government agency or a government employee breaches their duty of care to drivers, the government may be liable to the victim for damages.
Property owners have a duty of care to keep their property in a reasonably safe condition. This also applies to the government keeping roadways in a reasonably safe condition. When there are known safety hazards on the road, the government may be responsible for fixing the problem or warning drivers about the safety issues.910
Different states, local governments, and federal agencies have different requirements for proving liability. For example, in California, a motorist who is injured because of a known guardrail danger may have to show:
- The guardrail created a dangerous condition at the time of the accident;
- The injury was proximately caused or made worse by the guardrail;
- The guardrail created a reasonably foreseeable risk of the kind of injury which occurred; and
- The public entity had notice of the guardrail danger and had enough time to have taken measures to protect against the dangerous condition.11
Even if the guardrail is designed and manufactured properly, taking shortcuts when installing these safety measures could increase the risk of harm to drivers. If an individual employee
Is negligent in installing the guardrails, the company may also be liable for the employee’s negligence.
An employer can be vicariously liable for the negligence of an employee when the employee was acting within the scope of his or her employment at the time the negligent act occurred.1213
Example: Seth worked for Skimpers Construction. Skimpers Construction contracted with the California Department of Transportation (Caltrans) to replace defective guardrails along a stretch of highway.
Seth was supposed to install 20 new guardrail terminal pieces. After taking off the 20th terminal, Seth realized his truck had only been loaded up with 19 new pieces. It was the end of a long day and Seth just wanted to go home. Seth thought the last guardrail end was in an area that probably would never have any crashes, so he just went home.
A day later, Steve was driving on that stretch of highway when he was struck by a drunk driver who crossed over the median. Steve spun out, hitting the guardrail with no new terminal installed. The rail went right into the passenger compartment, killing Steve.
Steve’s family filed a wrongful death claim against Seth and Skimpers Construction. Seth may be liable because he negligently failed to install the new guardrail terminal. However, Skimpers Construction may also be vicariously liable for their employee’s negligence.
After a guardrail injury accident, the victim will have to deal with expenses and losses related to an accident. A personal injury lawsuit allows the victim to get compensation for their losses, known as “damages.” Compensatory damages can cover both economic and non-economic damages.
Damages available after a guardrail accident lawsuit can include reimbursement for:
- Medical expenses,
- Surgery costs,
- The cost of continuing medical care,
- Loss of income when the victim cannot work,
- Loss of future income potential,
- Property damage,
- Compensation for the loss of a limb,
- Loss of consortium,
- Emotional damages, and
- Pain and suffering.
Many guardrail accidents end with fatal injuries. Because the victim is no longer alive to file a lawsuit on their own behalf, it is up to the surviving family members to hold the responsible parties accountable for their actions.14
Certain family members can file a wrongful death lawsuit for damages associated with the loss of a loved one. Wrongful death claim damages can include:
- Funeral expenses,
- Burial expenses,
- Loss of financial support from the loss of a loved one, and
- Loss of companionship and guidance.
The time limit to file a guardrail accident lawsuit depends on the state and who are the defendants in the case. The time limit to file most personal injury lawsuits is known as the “statute of limitations.”
The statute of limitations for most personal injury and/or wrongful death lawsuits in California is 2 years.15
Claims against the government may have to be filed within a limited time.
The time limit to file a lawsuit is generally different when claims are made against the government. The notice requirement for a personal injury lawsuit against the government may require filing a claim or submitting a form to the government agency. If the claim is not filed in time, your claim for damages may be denied.
In California, a claim against the government may need to be filed within 6 months.16
Talk to your attorney about how long you may have to file a guardrail accident claim. Do not wait or you may lose out on your chance to seek damages after a personal injury or wrongful death claim.
Call us for help.
For questions about guardrail injury accidents in California or to discuss your case confidentially with one of our skilled personal injury attorneys, do not hesitate to contact us at Shouse Law Group.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Tennessee to replace controversial guardrails as death toll climbs. Travis Dorman. USA TODAY NETWORK – Tennessee. April 10, 2017. Highway Guardrail May Be Deadly, States Say. By Danielle Ivory and Aaron M. Kessler. The New York Times. Oct. 12, 2014. (Missouri, Nevada, and Massachusetts banned further installation of Texas-based manufacturer guardrails from Trinity Industries.); and (“…a senior engineer charged with examining the guardrails expressed reservations about their safety, before he signed off on their continued use about two years ago.”)
- Correspondence from State of Tennessee Department of Transportation Commissioner John C. Schroer to Federal Highway Administration-Tennessee Division Administrator Pamela K. Kordenbrock, Re: Lindsey Transportation Solutions X-Lite End Terminal. April 4, 2017.
- See, for example, California Civil Code section 1714(a) (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.”). See also California Civil Jury Instructions (“CACI”) 400 – Negligence; Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008); and Perez v. Las Vegas Med. Ctr, 107 Nev. 1, 4, 805 P.2d 589 (1991).
- See, for example, Soule v. GM Corp. (1994) 8 Cal.4th 548, 560 (“A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.”)
- See The Safety Institute’s response to Federal Highway Administration Review, Dec. 13, 2015.
- Same. (A case control study found Trinity Industries, Inc.’ ET-Plus design was almost twice as likely to produce an injury and almost 3 to 4 times more likely to produce a fatality than the ET-2000 design.)
- Same. See also Cindy Galli, Massive verdict in guardrail case overturned, ABC News (September 30, 2017)(“During a wreck, a guardrail pierced the car of North Carolina man Jay Traylor, severing his legs...The change in 2005 involved trimming the width of a metal piece of the end terminal down from five inches to four, a modification that a company employee estimated at the time would save the company $50,000 per year. But Trinity failed to tell state or federal safety inspectors about the change until 2012, by which time the new guardrail end terminals had been installed on roads nationwide….Trinity has continually maintained that the guardrails are safe and that federal crash tests conducted in 2015 that were prompted by the verdict have given the guardrails a passing grade. But the massive federal verdict rippled through state departments of transportation and dozens of states halted sales of the guardrails, with Virginia DOT announcing it would begin replacing the controversial guardrail.”); see also Nate Raymond, U.S. top court declines to take up Trinity Industries guardrail case, Reuters (January 7, 2019)(“The justices left in place a 2017 decision by the New Orleans-based 5th U.S. Circuit Court of Appeals overturning a 2014 verdict by a federal jury in Texas that found Trinity had defrauded the government….Joshua Harman, a competitor of Dallas-based Trinity, filed the lawsuit in 2012 under the False Claims Act, which allows [whistleblower lawsuits] against companies on the government’s behalf to recover fraudulently paid-out taxpayer money.”); see also Pennsylvania to suspend installation of controversial guardrail, CBS News (February 9, 2018)(“Several states — New York, Connecticut, New Jersey, Colorado, Delaware and Vermont — have announced plans to remove X-Lite Guardrail End Terminals from state roads.”).
- See Correspondence from State of Tennessee Department of Transportation Commissioner John C. Schroer at footnote 2 above.
- See, for example, California Civil Jury Instructions (CACI) (2017) 1000. Premises Liability. Essential Factual Elements. See also Sprecher v. Adamson Companies (1981) 30 Cal.3d 358.
- See, for example, California Government Code 835 — Liability of Public Entities.
- Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 (“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.”)
- See, for example, California Civil Jury Instructions (CACI) 3701 — Tort Liability Asserted Against Principal–Essential Factual Elements. See also Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 (“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.“)
- California Code of Civil Procedure 377.60 (“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: (a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.”)
- California Code of Civil Procedure §335.1.
- See e.g., CCP § 341.