AGENDA #5a
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: State Responsibility for Storm Grates in Bike Lanes
DATE: March 6, 2000
This report is in response to a request for information regarding liability issues related to stormwater grates in bike lanes in State highway rights of way.
On February 14, 2000, the Council considered a report from the Manager regarding stormwater grates in bike lanes. A copy of that report is attached. The Council asked for additional information from the Attorney pertaining to the State’s legal responsibility for depressed stormwater grates and whether the Town could litigate the issue to determine the State’s obligation to raise the level of the grates.
It is my opinion that the law presently indicates the extent to which the State is responsible for maintaining its roads and that its responsibility for any incident involving a stormwater grate and a bicycle would be determined based on the specific facts and circumstances involved.
B. Legal Principles:
The following legal principles relate to the questions asked:
1. Responsibility for maintenance of State
Highways.
The North Carolina Department of Transportation (DOT) has the “duty and responsibility to maintain streets and highways on the State Highway System.” N.C. General Statute Sec. 136-66.1. Milner Hotels, Inc. v. City of Raleigh, 271 N.C. 224 (1967); Matterness v. Winston Salem, 286 N.C. 1 (1974) (cited in an opinion of the North Carolina Attorney General’s office to the Chapel Hill Town Attorney, 58 N.C.A.G. 17 (1988)).
The DOT has the responsibility to “carry out its duties consistent with the needs of the State as a whole . . . .” N.C.G.S. Sec. 143B-350. Morehead City v. Department of Transportation, 74 N.C. App. 66, 69 (1985).
2. State’s
authority over streets.
“The power of the state over highways is (as against the municipality) absolute and the legislature, as the representative of the public, may decide what roads shall be built and how they shall be paid for.” Morehead City at 70, citing 4A Nichols on Eminent Domain 3d ed. (1981) Sec. 15.2(2).
N.C.G.S. Sec. 136-54 provides:
The Board of Transportation shall be authorized, when in its judgment the public good requires it, to change, alter, add to, or abandon and substitute new sections for, any portion of the State highway system.
3. Scope of
review of DOT decisions.
The DOT’s “discretionary authority” under this statute (Sec. 136-54) “is not subject to judicial review unless its action is so clearly unreasonable as to amount to oppressive and manifest abuse.” Morehead City at 70, citing Guyton v. N.C. Board of Transportation, 226 S.E.2d 175 (N.C.App. 1976).
4. DOT does
not insure safety.
It is not required that highways be constructed in such a manner to insure safety under all conditions. Strong’s North Carolina Index 4th, Highways, Streets and Roads, Sec. 39.
C. Is there any case law where a municipality has successfully brought suit against the State to establish responsibility for storm grates in bike lanes?
I have been unable to locate any reported decisions in North Carolina where this precise issue has been addressed.
In Morehead City v. N.C. Department of Transportation, referenced above, the Town of Morehead City sued the Department of Transportation seeking a declaratory judgment of rights of the DOT and the Town with respect to certain streets within the City limits. Morehead City sought to prevent the State from incorporating certain streets into the State highway system. The Court determined that the general grant of authority to municipalities over roads is subordinate to the State’s right and duty to maintain the highway system and that the State could incorporate municipal streets into the State highway system without the consent or approval of the Municipality.
Based on the
procedure used in that case, it would appear that it might be possible for the
Town to bring a declaratory judgment proceeding raising the issue of whether
the Department is required to construct initially and to maintain stormwater
grates within bike lanes on State highways in the Town to some specific
standard of repair and elevation. Based
on the statutes and case law referred to in this memorandum, the issues which
such a suit would attempt answer, if the Court were willing to consider them,
would appear to already have been resolved.
D. Does the Department of Transportation
have an affirmative duty to maintain
storm drains located within bike lanes at any particular level
for bike safety purposes?
As stated above, the Department of Transportation has a duty to maintain the streets which are part of the State highway system.
The State’s responsibility for any particular injury would be determined in the context of the specific set of facts involving a party injured based on an alleged defect in a State street or some other alleged basis of liability. The facts of any case (including road conditions, action taken by State employees, the injured party’s potential responsibility, etc.) would need to be considered. The applicable legal standard of liability would in part depend on the specific facts and circumstances.
By way of illustration:
1. In the case of Mackey v. North Carolina State Highway Commission 167 S.E.2d 524 (N.C. App. 1969), the Court of Appeals upheld a determination of State liability made by the Industrial Commission under the State Tort Claims Act where a State employee had removed posts along the shoulder of a highway and failed to fill in the holes. The Commission had determined that such action was negligent and the proximate cause of injury to a pedestrian who was walking along the highway when she stepped into one of the holes.
2. In Phillips v. North Carolina Department of Transportation, 341 S.E.2d 339 (N.C.App. 1986), (decided after the Tort Claims Act was expanded in 1977 to cover “negligence” and not just “negligent acts”) the Court of Appeals held that a driver was entitled to recover from the State for injuries received when his car slid off a public highway and dropped into a “cavernous hole”. The Court noted that there had been a dangerous condition existing for many years without being repaired by employees of the Department who had knowledge of the condition and that there had been between ten and twenty other cars that had fallen into the hole during that period.
3. In Hochheiser v.
N.C. Department of Transportation, 348 S.E. 2d 140 (N.C. App. 1986), the
allegations of negligence related to the failure to construct a guardrail along
a secondary road. The lack of a
guardrail was part of the original design of the road. A vehicle skidded off the road and down an
embankment. The driver and passenger
died as a result of the accident. The
Court determined that the Department did not have a duty to put a guardrail at
the particular location. The Court distinguished the specific facts from a
situation in which the State “failed to properly maintain and repair an
existing highway under its control.”
The Department is “vested with broad discretion” in design and
construction of roads. The decisions
with respect to the design and construction of public highways are “not
reviewable by the judiciary unless their action is so clearly unreasonable as
to amount to oppressive and manifest abuse”, the Court said. [1] Id. at 143, citing Guyton.
4. In Reid v. Roberts, 435 S.E.2d 116 (N.C.App. 1993), a motorcyclist sued several employees of the Department of Transportation following an accident with another vehicle allegedly caused by a stop sign being obstructed by foliage. The Court of Appeals upheld the Trial Court’s dismissal of the case as to some of the employees (deemed to be public officers exercising some portion of the sovereign power) on grounds of qualified immunity.[2] As to certain other employees, the Court upheld the dismissal on the grounds that the law did not impose upon these individual employees a duty owed to the general public, including the plaintiff, beyond the duty to use due care in the performance of the specific tasks they undertake. The duty owing to the public to maintain the highways falls upon the DOT, not the individual DOT employees, the Court said. Id. at 120.
Based on these cases, the determination of the Department’s responsibility with respect to liability for an injury caused by a stormwater grate in a bike lane in any specific case could be affected by a number of factors.
Conclusion:
Filing a lawsuit and seeking a declaratory judgment would not likely result in more than a restatement of legal principles already established.[3]
If the Town wishes to encourage the State to improve the current conditions with respect to storm grates within bicycle travel areas, the Town might want to continue to identify locations where there is a concern among bicyclists and bring them to the attention of DOT staff. In addition, the Town could pursue the funding opportunities that might be available for the desired adjustments to stormwater grates.
Please let me know if I can respond to further questions.
1. February 14, 2000 memorandum (begin new page 1).
[1] The Court of Appeals decision was appealed to the N.C. Supreme Court, which was equally divided with three members voting to affirm the decision and three members voting to reverse. (The remaining member of the Court took no part in the consideration or decision of the case.) As a result, the decision of the Court of Appeals was left in place but is “without precedential value.” 361 S.E. 2d 562 (1987).
[2] Under the doctrine of qualified immunity, individual employees who are public officers are shielded from liability for mere negligence and can be held liable only for acts which are willful and deliberate, malicious, or for certain other reasons which extend beyond mere negligence.
[3] Another option would be to ask the Attorney General for an opinion. The Town did this several years ago when there was a question regarding the Town’s authority to set the speed limit on Sewall School Road. The opinion provided in response to that request is referred to earlier in this memorandum. Based on that previous opinion and other applicable law, some of which is referred to above, I would not anticipate that the Attorney General’s Office would indicate the DOT had responsibility beyond what has been stated in this memorandum.