35 Trial Lawyer • Fall 2022 See Daylighting p 36 quasi-experts in how root canals or other medical procedures work. For others, we might need to know the ins and outs of how a software engineer’s coding error could result in a system failure. As a civil defense lawyer, I took for granted the early and nearly unfettered access I had to an industry expert: my client. Roadway design defect cases are technical and complex. And for plaintiff lawyers, our clients do not have the technical background to educate us about those design defects. We therefore have to do more work, up front, to ensure we understand the standards of care, the technical aspects of our cases and the terminology for talking about those things. Talk to engineers, talk to other lawyers who’ve litigated these kinds of cases and read the industry manuals. Once you feel like you understand the relevant concepts, see if you can explain them to someone unfamiliar with the case. If you can do that, you should then be able to write about your theory of liability in a complaint and other pleadings in a way the court understands. Aside from the credibility and confidence you earn from being so knowledgeable, the standards of care for roadway design may be codified in federal, state or local law, which affects the legal claims you can bring (e.g., negligence per se). On top of that, a government entity is almost certain to be a defendant in most roadway design defect cases. Thus, discretionary immunity is bound to come up. But if an industry standard is adopted by statute or regulation, you should explore whether the statute or regulation prescribes a specific course of action, thereby depriving the government actor of discretion to deviate from that course —and potentially defeating a discretionary immunity defense. See Garrison v. Deschutes County, 334 Or. 264, 274 (2002) (“[T]he decision whether to protect the public by taking preventative measures, or by warning of a danger, if legally required, is not discretionary.”). Industry standards are important in many negligence cases, but they are critical in roadway design defect cases where the threat of a discretionary immunity defense looms large. Think early and often about how the industry standards weave into not just your own causes of action, but also the government’s affirmative defenses. Know your defendant Our case for the Coe Estate involved engineering standards that appeared in multiple industry manuals, including the “American Association of State Highway and Transportation Officials’ Policy on Geometric Design of Highways and Streets” (the AASHTOGreen Book) and the “Manual on UniformTraffic Control Devices” (MUTCD). When asked about why the city did not comply with the industry standards set forth in those manuals, the city’s witnesses consistently downplayed their importance, referring to them as nonbinding guidelines, and painting them to be unreasonable and overly stringent. There were two problems with that approach. First, the city has published its own rules for private developers to follow when they build in a manner that affects clear sight triangles at intersections. The city’s rules require that those private developers comply with the very sections of the AASHTO Green Book on which we were relying. In other words, the city doesn’t have to follow the rules, but everyone else does. Second, the city, in at least one other roadway design defect case, had used the AASHTO Green Book as a shield when it served its interests to do so. Indeed, some of the same witnesses we deposed had argued in the other case that the city’s roadway design followed the applicable AASHTO Green Book standards and, thus, was not negligent. Jurors do not like hypocrisy, especially when it’s coming from their government officials. Because governMotorcyclist Elijah Coe was killed in a crash at the intersection of East Burnside and 17th Avenues. A driver trying to turn left off 17th and onto Burnside could not see Coe on his motorcycle through the row of parked vehicles. Traffic engineers advocate “daylighting”— to prevent intersections like this one from having such poor visibility.
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