March 01, 2018

by Poorad Razavi & Leslie M. Kroeger

On November 1, 2016, 17-year-old Hannah Eimers was driving her father’s 2000 Volvo S80 on I-75 near Niota, Tennessee, when the car went off the road, traveled into the median, and hit a Lindsay X-LITE guardrail end terminal on the driver’s side. Instead of the guardrail end terminal telescoping back on impact or re-directing the vehicle, as it should, the guardrail end terminal penetrated the car, impaling and killing Hannah.

On October 26, 2016, just six days before Hannah was killed, the Tennessee Department of Transportation (TDOT) had removed the Lindsay X-LITE guardrail end terminal from its qualified products list, based upon concerns for potential long-term performance issues of the terminal’s telescoping W-beam slider assembly friction-reduction type system.

The decision to remove the Lindsay X-LITE guardrail end terminal from the state’s qualified products list meant that TDOT would not replace or install new Lindsay X-LITE guardrail terminals. Unfortunately, over 1,000 X-LITE guardrail terminals were allowed to remain on the roads across the state. The same X-LITE guardrail system had already been involved in at least three other fatal crashes in Tennessee at the time of Hannah’s death. Later in 2016, TDOT made the decision to remove these guardrail end terminals entirely from roads where the speed limit is greater than 45 mph. The TDOT has started the process, but it is unclear how long such a massive overhaul project will take.

Earlier that year, on July 2, 2016, 69-year-old Wilbert Byrd was killed on I-75 in Chattanooga, Tennessee, when, while a passenger in a 2015 Ford Explorer that his nephew was driving, the vehicle left the roadway and collided with a Lindsay X-LITE guardrail end. The two relatives were traveling from Detroit, Michigan, to attend a funeral in Georgia. Once again, the guardrail’s W-beams penetrated the vehicle and traveled through the vehicle’s cabin. It entered through the center dashboard and exited the rear windshield. Over 60 feet of guardrail passed through the vehicle in a matter of seconds.

America’s Dangerous Roadways

Guardrails are installed along America’s roadways for the protection of motorists. Guardrails, if properly designed, keep vehicles from straying off the roadway and, when impacted at the endpoints, should absorb or dissipate energy from the crash and give way, rather than remaining rigid and potentially penetrating and spearing into the accident vehicle. But, unfortunately, there are tens, if not hundreds, of thousands of guardrails that will not achieve this purpose either due to poor design or improper installation.

Hannah and Wilbert’s deaths were due to a new series of catastrophic failures pertaining to the X-LITE system. Specifically, when impacted, the end rail often fails to properly contain the telescoping rails, resulting in violent and deadly penetration of the impacting vehicle.

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What Can You Do?

Whenever a roadway accident victim appears in your office, it is important to always assess the potential for a defective roadway claim. Whether the claim pertains to defective guardrails, a failure to implement a guardrail system, or general roadway defects, it is important to quickly assess these potential claims. Guardrails are typically repaired and/or destroyed shortly after an accident, and totaled vehicles can often be quickly sold at auction. It is therefore imperative to send out preservation requests once a potential claim has been identified. It is also important to send out proper investigators to document the scene of the crash.

A diligent attorney must also quickly evaluate the potential claims against any sovereign entity and comply with the appropriate notice requirements, as the time limitations for those claims are typically less than the typical personal injury or wrongful death claim.

In states like Florida with progressive sunshine laws, it is also crucial to begin gathering information at the pre-suit stage, which can include Development Review Committee notes, traffic engineering studies, accident analysis, topographic images, etc. This will allow for the possible identification of additional defendants and/or claims.

Roadway contractors and designers, much like in the automotive industry, habitually seek to shield themselves from liability by hiding behind their compliance with governmental testing standards. It is crucial to the welfare of our clients and to society as a whole that we properly implement various techniques to identify these defects and strategically maneuver through the industries’ various propagated defenses.

The full article can be accessed here.