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S.D. Supreme Court rules against bicyclist who was paralyzed in grate crash | KELOLAND.comPIERRE, S.D. (KELO) — The South Dakota Supreme Court says a circuit judge was right to dismiss a claim brought by a bicyclist against Rapid City’s municipal government.

Julie Godbe was left paralyzed by the crash that happened after her front tire slipped through a street drain. The state’s high court publicly released the decision Thursday.

Chief Justice Steven Jensen wrote the majority opinion in support of Circuit Judge Matthew Brown, who ruled that Godbe and her husband, David, hadn’t provided evidence that the grate was damaged. Justice Janine Kern dissented.

The Godbes and a city representative photographed the grate where Julie crashed as well as other grates along the same street. The grate was later removed, but no one deposed by the Godbes knew where it went.

The chief justice said state law doesn’t say whether the government can face legal action for failing to repair damage.

“This is a troubling and tragic case,” Chief Justice Jensen wrote. “By all accounts, City knew the design of its grating system was dangerous to cyclists when it assumed responsibility of the Street in 2004. Julie’s injuries could have been prevented had City acted on this knowledge and replaced the dangerously designed grates as its own guidelines set forth. However, SDCL 31-32-10 does not provide a remedy against a governmental entity for known dangerous design defects on a highway or street, and any expansion of this statutory duty is within the prerogative of the Legislature, not this Court.”

The law requires only that the government “within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger.”
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livedarklions

It's that sovereign immunity thing. It really sucks.

Many decades ago. I got stopped in the street as my wheel got stuck between two slats of a square sewer grate that had been installed sideways. Fortunately wasn't going fast, but my guys did not enjoy visiting the top tube.

Riveting

I'm all for the proper maintenance of the infrastructure in bike lanes/shoulders. But I personally treat every grate, crack, or debris coming up in the road ahead as a potential cause for a crash, and I take it upon myself to quickly analyze those grates, cracks, and/or debris before riding over them. IMHO, most (if not all) of the responsibility for this kind of self-preservation lands on the rider to avoid such obstacles, but some amount does fall on the city to maintain it within the limits of their laws, which in this case is responding within 48 hrs when such a danger is reported.

1. Was there a formal complaint filed against that specific grate 48+ hrs prior to the cyclist hitting it? If not, then it sounds like the city wasn't negligent.

2. Contradictory statements about the grate were made:
"Circuit Judge Matthew Brown, who ruled that Godbe and her husband, David, hadn’t provided evidence that the grate was damaged."
yet it was also stated that:
The Godbes and a city representative photographed the grate where Julie crashed..."
Both can't be true. Or maybe the plaintiffs lost the photos they took, and if so, shame on them, or possibly the photos couldn't be used to positively identify the exact location of the grate in the picture, or the photos didn't show any discernable damage, again shame on them for not providing valid forensics.

Troul 

typical unwritten law cop out. a lot of times I've reached out to the city/state for paths with real safety issues & have either been shuffled around to other departments or told basically a *thanks for your input* .

Troul 

I took it as it was missing at the time of photo being taken, or it was missing entirely at the time of the injury & the court was not able to find where the grate went prior, during, after the injury.

Riveting

It was said that it was damaged at the time of the crash, not missing, although being completely missing is arguably the greatest form of damage. I interpreted the "missing" part to mean that the city replaced the broken grate, and could no longer locate the broken one when the time came to use/photograph it as evidence.

livedarklions

It's not that simple.
Actually read the case:
https://ujs.sd.gov/uploads/sc/opinions/29251d777d99.pdf

The issue is that the law is that the city is only liable if it failed to repair a damaged grate, but not for having a defectively designed grate installed on the street. The issue is that some of the grates of the same design had been retrofitted with a grill to prevent wheels from slipping in between the slats (or whatever they called them) while others had not. The photos they took showed that the grate did not have the grill on it when she got hurt. Now, if it never had a grill on it, it was merely defective and therefore no liability for the city, but if there had been a grill on it and it had come off, that would have been damage and the city would have been liable for failing to repair.. It could not be determined from the photos whether or not there had ever been a grill on the grate. In hindsight, one can fault the plaintiffs for not getting a photograph that could distinguish that, but that assumes an awful lot of foresight on their part AND that it was possible for a photograph to actually document that distinction.

If this were a private property owner, they would be liable under common law negligence rules for having a defective trap like this, but because it's governmental, there's no tort liability unless the government says there is.

Bald Paul

I don't recall when or where I read it, but I recall an article about an injury lawyer who basically hired people to go around the city, photographing every pothole, uneven sidewalk, bad storm drain cover, etc. He would then 'inform' the city of the defects, knowing full well there was no way for them to address them all within the given time frame. Then, he would sit back and wait for someone to get hurt.

Drillium Dude 

Another teachable moment proving a cyclist's due diligence is his/her best friend out there on the mean streets of the world.

Before anyone accuses me of "blaming the victim", understand that I view that phrase as absolutely stupid and inaccurate in many examples of its usage. If you have a hand in your own demise, victim or not, you get a piece of the blame. Full stop.

Now back to your regularly scheduled programming

DD

work4bike

Street grates scare the hell out of me, because it's easy to get complacent around them. There is one road where the grates are directly adjacent to the fog line (no shoulder/bike lane on this road), these grates are positioned on a downward slope, so I think if I ever hit one, especially if wet, my wheels would slip out from under me.

I actually had a dream (nightmare) about this a couple years ago, where I was riding along this road and all of a sudden my bike slipped out from under me, I literally felt it physically, but I woke up (jolted up) before I hit the pavement. Craziest freakin' dream.


.

livedarklions

That's actually a lawyer providing a societally useful function--it puts a huge pressure on the city to systematically address the problem.

livedarklions

You're assuming that someone's due diligence includes a thorough examination of the grate they're about to pass over in road traffic?!

Talk about stupid and inaccurate uses of a phrase! Due diligence would therefore require us to take more of our attention away from the traffic to stare down at the road itself.

Bald Paul

Well, one would like to think that, but if I recall, he didn't always 'wait' for someone to get injured. He would entice homeless people to trip and fall over the defects recently noted, sue the city on their behalf, and collect his 1/3rd of the settlement.

livedarklions

Well, that fraud wasn't mentioned in your first post. When a story gets "better" like that, I generally doubt it ever actually happened.

Insurance companies are famous for making up such stories about law suits. See, e.g., the entirely fictional case where a guy successfully sued a lawn mower manufacturer for not warning that using the product to trim hedges was dangerous. The case was totally invented by an insurance company PR guy.

Moe Zhoost

Yep, there it is! Municipalities are so protected to limit frivolous or fraudulent lawsuits; however it seems to me that there should be some standard of performance required to maintain this protection. Should we not expect that the municipality should do surveillance and correct deficiencies promptly?

livedarklions

Right, if you look at the legal distinction between damaged and defective in this case, it absolutely makes no sense. If it's damaged, then the city is liable so if there was a history of trying to correct the defect, the city would be liable, but if they just leave the defective grate in place without trying to make it better, then they're never liable. The incentive for the city if they find out there's a defective design is to do nothing about it to prevent liability if their fix of the defect goes wrong.

The court may have gotten the law right here, but the law is really bad. If you read the SD Supreme Court decision, it pretty much says this is the legislature's mess to fix.

DangerousDanR

Questionable awards do happen and they give traction to myths like warnings against stopping a chainsaw chain with your hand.. But you will find a warning that the saw chain can cut you even when it is not moving. If you don't know that, please don't use a chainsaw.

I am aware of a case where an intoxicated man backed over his own child with a riding mower and the judicial system awarded the child $9.5 million against the manufacturer, as well as $2.5 million against the father.

https://www.kgw.com/article/news/loc.../283-532585452

The likelihood of getting such an award varies greatly from state to state. Most states have a concept of joint and several liability which allows a plaintiff to recover the full amount awarded from a party who was found only minimally responsible. This has led to complaints that such suits are based on the idea of chasing the deepest pockets rather than the truly negligent party. In my mind, dad was at least 99% responsible by mowing while drunk, but the mower company gets to pay...

In the case I referenced the plaintiff was clearly harmed. The claim was that the mower in question should not have been able to cause injury when traveling in reverse. None of the product standards in place at the time of manufacture required such a feature. The jury rejected the claim, but an appeals court awarded damages. An undisputed fact was that the operator of the mower was impaired due to intoxication.

There need to be limits on product liability. I have seen product manuals that warn that engine or gearbox oil is slippery and may cause a fall. No kidding? A reasonable person should know that and not walk through a puddle of fluid on the floor of their garage or shop.

If a person under the influence of alcohol causes harm while riding their bicycle I see no way that the bicycle manufacturer should be held liable. Nor the manufacturer of the alcohol. Reasonable people know that consumption of alcohol can cause impaired judgement and reflexes. I can see the label now: "Warning: this here booze can make you stupid!"

But if anyone is injured when a GP5000 TL has a catastrophic bead failure when inflated within the manufacturers specifications, I would have no issues with Continental Tire being liable.

livedarklions

Oh, fercryinoutloud. Now we're going to debate products liability based on a case you don't like the outcome of that has literally nothing to do with bicycles? I have no idea what safety features were at issue there, but I seriously doubt the decision was that unreasonable--it's not like poor John Deere couldn't afford to defend themselves properly.

You notice it's the kid getting the money, right? She wasn't drunk, she was just a kid.

In reality, products liability cases are very tough to win, BTW.

Drillium Dude 

No. Talk about stupid.

DD

livedarklions

Wow, incisive counter-argument. Next time, maybe think before you post. It's very obvious that the city has been welding strips on these things precisely because the hazard is very hard to spot while riding--you really can't take your eyes off the actual roadbed to make sure you don't flop into it. These kind of grates parallel to the road direction were common when I was a kid. I haven't seen one in many decades. Why could that be, I wonder?.

Drillium Dude 

I've read enough of your posts to realize debating with you would be a waste of time. My point was made clear in my first post: personal responsibility goes a long way. Move on.

DD

livedarklions

So calling me stupid was how you deal with that? Nice.

cranky old road 

I recall an article (years ago) about an attorneys' association in New York City paying a crew to patrol the city for liability issues to submit. The article I recall didn't mention hiring people to fake injuries.

livedarklions

These government suits are usually not terribly lucrative, so this may very well have been more of a political strategy to force the city to fix things than a capitalist scheme. That crew sounds expensive, and there's no guarantee that the client is going to find the attorneys who paid for the crew if and when it becomes time to sue.

The fraud story doesn't make a lot of sense--it's so much easier to sue a private person or corporate entity than a government so why would a criminally inclined lawyer choose government as the target? It's just as easy to stage an accident in a mall parking lot or whatever and way more likely to pay off.

Troul 

you'd think that local inspectors that may also be involved with pinging residences with citations/violation notices would also support a safer commuting community by reporting roadway hazards, defects, damages, & alike.