The state Supreme Court said Monday that victims injured and killed when an out-of-control dump truck careened down Avon Mountain cannot sue the state based on claims that the design of steeply graded Route 44 was defective and created inherently unsafe conditions.
In a 5-1 decision, the justices upheld a lower court ruling dismissing two lawsuits that grew out of the horrific July 2005 crash that killed four and injured 19 others at the bottom of the mountain in Avon.
The majority opinion, written by Chief Justice Chase T. Rogers, said the allegations in both suits – among them that the highway was too steep, lacked sufficient warning signs and failed to incorporate run-away truck lanes – failed to meet a legal threshold permitting such negligence suits against the state.
As a result, the high court said the state was protected by its sovereign immunity and it upheld a prior ruling by the state Appellate Court that dismissed both suits.
Justice Dennis G. Eveleigh argued in a dissent that the suits should be allowed to proceed because their allegations of defective design satisfy the legal exemption to the state's immunity defense.
Eveleigh referred specifically to allegations of "a dangerously steep road surface that channels descending traffic into a major crossing intersection immediately at the bottom of the slope, together with the absence of an escape ramp to divert and contain vehicles encountering runaway conditions, and the absence of adequate warning signs to alert drivers to the severity of the conditions they were about to encounter before they were irrevocably committed to the descent."
A runaway dump truck caused a 20-vehicle crash at the busy intersection at the bottom of the mountain when its brakes failed. The truck driver was one of those who died. The truck owner, David Wilcox, was charged with manslaughter and assault and sentenced to prison.
The court acted Monday on suits against the state Department of Transportation by a man who was seriously injured in the crash and the estate of a father of five who died.
The court majority acknowledged unsafe aspects of the Route 44 design, but said the flaws failed the reach a legal threshold that triggered an exemption to the state's sovereign immunity.
"The absence of adequate warning signs and tangible safety measures is not a cognizable highway defect because it does not constitute an ''object or condition in ... the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon ...'
Elsewhere the majority said: "Moreover, [w]e have consistently held that [t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.''
The first judge to hear the suits, former Superior Court Judge Michael R. Sheldon, allowed them to proceed, reasoning that "'the plan of design providing for the steep downhill grade of Route 44, which has always been open to truck traffic, is alleged and may be proved by the [plaintiff] to have been defective from the outset because its incorporation into the roadway created a condition, intrinsic to the roadway, that constituted a nuisance, when the roadway was used as intended by trucks, from which injury [was] ultimately necessarily the inevitable or probable result.''
Sheldon was overruled by the appellate court, which said the state's sovereign immunity applies.