Crash Test: Highway Medians, Auto Collisions, and Sovereign Immunity
Hitting a tree located in the highway median risks serious injury or death. However, Florida drivers may recover damages resulting from governmentally designed highway medians in only a limited number of circumstances. Properly designed highway medians can prevent driver death and serious injury, while poorly designed medians can increase the severity of injuries. Often, just the removal of trees from a tree-laden median can do much to reduce serious accidents.
Over the last 30 years, the Florida Department of Transportation and other statewide governmental transportation agencies have been provided extended liability protection through the doctrine of sovereign immunity.1 In some instances, the doctrine bars recovery for accidents resulting from defective medians.2 The Florida Supreme Court explained that constructing medians are a planning-level function of governmental agencies to which sovereign immunity attaches.3
Historically, citizens had the right to sue their government if it failed to design or construct safe medians.4 With the sweeping expansion of sovereign immunity, planning-level negligence is no longer actionable unless a known dangerous condition is established.5 Therefore, governmental agencies now have less financial risk for failing to design “forgiving medians.” If the Florida Department of Transportation constructs an unsafe median, absolute immunity attaches if the design and construction is deemed a judgmental, planning-level function.6
The Fourth DCA is the only DCA that has ruled on the issue of planting trees in a median.7 In State, Dep’t of Transp. v. City of Pembroke Pines, 67 So. 3d 1162, 1163 (Fla. 4th DCA 2011), the plaintiffs alleged the Florida Department of Transportation was negligent in approving the design plans, which called for the planting of palm trees. Additionally, the plaintiffs alleged the Florida Department of Transportation was negligent in approving an increase in the speed limit and failing to remove the palm trees.8 The Fourth DCA held the type of vegetation permitted in the median and whether to upgrade or alter the intersection after the increase in speed limit involved the exercise of discretionary design choices.9 Therefore, sovereign immunity attached to the Florida Department of Transportation’s decision to plant palm trees in the median.10
The Greenbook Standards
In the late 1950s, the interstate highway system established a uniform system of roads connecting all corners of the United States.11 the early 1960s, the U.S. Department of Transportation and state transportation departments determined that the number of deaths on highways were unacceptable.12 Over 55,000 people a year were dying in highway accidents with millions more being seriously injured.13 In the late 1960s, the U.S. Department of Transportation was also beginning to develop uniform standards for highway design, construction, and maintenance.14 During this time, state highway traffic engineers were developing uniform standards for the design, construction, and maintenance of streets and highways throughout America.15 Parallel to these activities, the insurance industry created the Insurance Institute for Highway Safety.16 1970, all of these groups recognized that serious injuries and deaths could be prevented by eliminating roadside and median hazards. Florida was also in the forefront of this effort to make highway medians “forgiving.”17
In 1976, Florida adopted the “Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways,” which is commonly known as the Florida Greenbook.18 The current version of “The Florida Greenbook” was published in May 2013.19 To minimize injury and death from roadway hazards, Florida, as well as the other 49 states and the federal government, required all signposts and markings along roadways to be “forgiving.” In other words, if a vehicle struck a signpost in the median of a highway, the signpost would have a breakaway mount allowing the sign to be knocked over rather than become a knife that cuts through the vehicle.
For over a decade, Florida adhered to the design standards established by the Greenbook. Unfortunately, in the 1990s, county and city road departments abandoned the Greenbook standards, and began planting trees in medians within close proximity to roadways. Today, it is very common on streets and highways where speed limits are as high as 55 MPH and actual traffic is travelling as fast as 65 MPH to find huge trees with thick trunks placed in medians less than five feet from the edge of the roadway. If one travels the streets and highways in Florida, extraordinary anomalies are evident. It is very common to find breakaway signposts in medians adjacent to tree trunks, which if struck, can slice through cars and kill even belted occupants because of the signs’ close proximity to trees or tree trunks. The general public is mostly unaware of the dangers of trees in medians. Striking a six-inch diameter tree trunk at 40 miles per hour will typically result in one or more fatalities regardless of seatbelt use or air bag deployment. Town, city, and county traffic departments should re-familiarize themselves with Florida’s Greenbook.20 The current hazardous conditions in medians are a result of local governments trying to “beautify” their roadways. Beautification is a worthy goal, but it is simply unacceptable if plantings result in a dangerous foreseeable hazard.
Vegetation in medians should be limited to bushes and flowers that do not grow into serious obstacles for errant vehicles and can safely absorb an auto impact without causing serious injury to the occupants. Under ideal conditions, plantings in medians should simply serve to block headlights of oncoming vehicles at night. Vegetation at corners and turn lanes should be kept low enough so as not to encroach upon the driver’s field of vision.21
Sovereign Immunity — Florida Supreme Court Decisions
Absolute immunity attaches to Department of Transportation decisions that are deemed a planning-level function.22 The Florida Supreme Court previously explained that planning-level decisions include the “initial plan, road alignment, traffic control device installation, or the improvement of roads and intersections.”23 Further, the court reasoned that such defects in the construction of the road, the median, and the intersection are defects in the overall plan of the road and, therefore, the result of planning-level function to which absolute immunity applies.24
However, existing caselaw does not clearly delineate the distinction between operational and planning-level decisions.25 An individual has a basis for action against a governmental agency in three different circumstances.26 First, if the agency fails to warn or correct a known dangerous condition, which is not readily apparent.27 To illustrate, the Florida Supreme Court provided a hypothetical:
[I]f a governmental entity plans a road with a sharp curve which cannot be negotiated by an automobile traveling more than [25] miles per hour, the entity cannot be liable for building the road because the decision to do so is at the judgmental, planning level. If, however, the entity knows when it builds the road that automobiles cannot negotiate the curve at more than [25] miles per hour, then an operational-level duty arises to warn motorists of the hazard.28
Second, an individual may have a case if the agency fails to maintain existing traffic control devices and existing roads.29 In Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010, 1022 (Fla. 1979), the Florida Supreme Court explained the maintenance of a traffic signal light is an operational-level activity. Additionally, the maintenance of a traffic sign at an intersection and the painted letters “STOP” on the pavement of a highway are operational-level activities.30 Third, if the agency fails to properly construct or install roads or traffic control devices.31 For instance, in Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1077 (Fla. 1982), the Florida Supreme Court stated a governmental entity may be “liable for an engineering design defect not inherent in the overall plan for a project it has directed be built, or for an inherent defect which creates a known dangerous condition.” Regarding the former, if a highway is constructed with a bridge spanning a waterway and the “supports are negligently designed and give way, causing injury, an action could be maintained because there is an engineering design defect not inherent in the overall plan approved by the governmental entity.”32 However, if the alleged defect is a result of the overall plan itself, no action exists unless a known dangerous condition is established.33
Does Timing Really Matter?
In Ferla v. Metro. Dade Cnty., 374 So. 2d 64 (Fla. 3d DCA 1979), cert. den., 385 So. 2d 759 (Fla. 1980), the plaintiff’s vehicle was struck by another vehicle that was propelled through the air by a concrete median strip. The Third DCA found that the design and construction of the median strip was an operational activity.34 The court reasoned that determining “the precise configuration of the median strip” fit within the maintaining existing traffic control devices exception in Commercial Carrier Corp., and, therefore, the county was not immune from liability.35 However, the Third DCA in Ferla appears to give considerable weight to whether a design decision was made after the planning decision to construct a median in some form was initially made:
[T]he determination of the precise configuration of the median strip, which the county had already determined was to be installed in some form conceptually does not differ from the activity involved in properly maintaining already installed traffic control devices which the court specifically held to be non-immune from tort liability.36
Three years after Ferla, the Florida Supreme Court noted Ferla “is a more difficult case to explain”37 and recognized that Ferla held the “design of the median is not immune from suit.”38 However, the court did not overturn Ferla, which seems to conflict with its decisions after Ferla.39
Moreover, in Cygler v. Presjack, 667 So. 2d 458, 460-61 (Fla. 4th DCA 1996), the Fourth DCA relied almost entirely on chronology. Cygler concerned a plaintiff who lost control of his vehicle on I-95 southbound and travelled across a median strip and collided with a vehicle in the northbound lane.40 The Department of Transportation was added as a co-defendant for its alleged failure to construct and maintain a barrier.41 In distinguishing Ferla, the Fourth DCA held the Department of Transportation was immune as “there [was] nothing to suggest the accident…was the result of a subsequent operational level decision regarding design and construction beyond the Department’s initial planning level decision to install a median.”42 This reliance on temporal hair-splitting appears to have no policy justification.43 It is difficult to imagine what difference it makes whether a negligent design is adopted concurrently with or subsequent to the adoption of a more general plan to build a median. In addition, plaintiffs lack clear notice of which claims are actionable because there is no defined standard for determining when design decisions are severed from planning decisions.
Limitation on Damages
Accident victims are limited in the damages they may seek from a state agency. The Florida Constitution establishes sovereign immunity for all state actors, but provides the state may waive immunity.44 However, F.S. §768.28(5) caps damages at $200,000 for a single plaintiff, or if there is more than one plaintiff, $300,000 per incident. This essentially means a collision with a tree in a median resulting in multiple occupants being killed or seriously injured could only result in a recovery of $300,000 to be split among the plaintiffs.45 In order to overcome these draconian caps, the plaintiffs’ attorney would have to act as a “private attorney general” and file a claims bill with the Florida Legislature seeking an award over the cap.46 A claims bill requires majority approval in both chambers and can only be pursued after all administrative and judicial remedies have been exhausted.47 This process is time-consuming and rarely successful, leaving little incentive for plaintiffs’ attorneys to pursue claims bills as an avenue for relief.
Conclusion
Sovereign immunity in Florida has resulted in an institutional structure that risks the safety of motorists in favor of beautification. Today, if the Florida Department of Transportation fails to construct a “forgiving median,” it has less risk. Further, if courts follow the Fourth DCA and hold sovereign immunity attaches to the Florida Department of Transportation’s decision to plant trees in the median, collisions with trees will not result in any meaningful repercussions for those responsible for the negligent design.48 The “forgiving median” can be brought back to compliance by adhering to the requirements of Florida’s Greenbook and a revived understanding of how trees and equivalent vegetation, however beautiful, have no place in highway medians.
1 See Ingham v. State, Dep’t of Transp., 419 So. 2d 1081, 1082 (Fla. 1982); Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1078 (Fla. 1982).
2 See Ingham, 419 So. 2d at 1082 (holding defects in the construction of the median are defects inherent in the overall plan of the road, which is a judgmental, planning-level function to which absolute immunity attaches); but see Neilson, 419 So. 2d at 1078 (explaining the failure to warn of a known danger that is not readily apparent and failure to properly maintain existing traffic control devices and existing roads are both a basis for an action against a governmental agency).
3 Ingham, 419 So. 2d at 1082.
4 See Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010, 1015 (Fla. 1979) (“The state of the law concerning municipal sovereign immunity on the date of enactment of [Fla. Stat. §]768.28 (1975), was clearly enunciated in Gordon v. City of West Palm Beach…as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corporation.”); Gordon v. City of W. Palm Beach, 321 So. 2d 78, 80 (Fla. 4th DCA 1975) (“[N]egligence in the design, construction, and maintenance of the streets in question and for its failure to warn of a known hazardous condition, since road maintenance, etc., is a proprietary function for the negligent exercise of which Florida municipalities have been liable historically.”) (alteration in original).
5 Ingham, 419 So. 2d at 1082; Neilson, 419 So. 2d at 1078.
6 Id.
7 State, Dep’t of Transp. v. City of Pembroke Pines, 67 So. 3d 1162, 1165 (Fla. 4th DCA 2011).
8 Id. at 1163.
9 Id.
10 See id.
11 Richard F. Weingroff, The Greatest Decade 1956-1966, Federal Highway Administration (Nov. 11, 2015), http://www.fhwa.dot.gov/infrastructure/50interstate.cfm.
12 Transportation Research Board, Building the Road Safety Profession in the Public Sector: Special Report 289, 16 (2007), available at http://onlinepubs.trb.org/onlinepubs/sr/sr289.pdf.
13 See id.
14 U.S. House of Representatives, History, Art & Archives, The Highway Safety Act of 1966, http://history.house.gov/Historical-Highlights/1951-2000/The-Highway-Safety-Act-of-1966/.
15 Federal Highway Administration, HSIP History (June 3, 2009), http://safety.fhwa.dot.gov/hsip/gen_info/hsip_history.cfm.
16 Insurance Institute for Highway Safety, About the Institutes, http://www.iihs.org/iihs/about-us.
17 See Fla. Dep’t of Transportation, The Manual of Uniform Minimum Standards for Design, construction and Maintenance for Streets and Highways (June 1, 1976), available at http://www.dot.state.fl.us/rddesign/FloridaGreenbook/Greenbook1976.pdf.
18 Id.
19 Fla. Dep’t of Transportation, The Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways, 2013 Florida Greenbook (May 2013), available at http://www.dot.state.fl.us/rddesign/FloridaGreenbook/FloridaGreenbook.pdf.
20 Id.
21 Armas v. Metro. Dade Cty., 429 So. 2d 59, 61 (Fla. 3d DCA 1983) (holding the city has a duty to maintain its streets and adjacent real property in a reasonably safe condition, which includes a duty to use reasonable care when cutting back foliage that obstructs a motorist’s view).
22 Ingham, 419 So. 2d at 1082.
23 Dep’t of Transp. v. Konney, 587 So. 2d 1292, 1294 (Fla. 1991).
24 Id. at 1296 (citing Ingham, 419 So. 2d at 1082).
25 Neilson, 419 So. 2d at 1078.
26 Id.
27 City of St. Petersburg v. Collom, 419 So. 2d 1082, 1083 (Fla. 1982) (“[W]hen a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.”).
28 Id. at 1086.
29 Id. (“[C]ourts can require…the necessary and proper maintenance of existing improvements, as explained and illustrated in Commercial Carrier, 371 So. 2d 1010 (Fla. 1979).”).
30 Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010, 1022 (Fla. 1979).
31 Collom, 419 So. 2d at 1086.
32 Neilson, 419 So. 2d at 1077-78.
33 Id. at 1078.
34 Ferla, 374 So. 2d at 66-67.
35 Id. at 67.
36 Id. (emphasis added).
37 Neilson, 419 So. 2d at 1077.
38 Id.
39 Compare Ferla, 374 So. 2d at 64, with Ingham, 419 So. 2d at 1082 (holding defects in the construction of the median are defects inherent in the overall plan of the road, which is a judgmental, planning-level function to which absolute immunity attaches), and Neilson, 419 So. 2d at 1077 (“We also hold that the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type.”).
40 Cygler, 667 So. 2d at 459.
41 Id. at 460.
42 Id. at 461 (alteration in original) (citation omitted).
43 See id.
44 Fla. Const. art. X, §13.
45 Fla. Stat.§768.28(5) (2015).
46 Id. (“[A] judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the [l]egislature, but may be paid in part or in whole only by further act of the [l]egislature.”).
47 Legislative Claim Bill Manual, Policies, Procedures, and Information Concerning Introduction and Passage (2014), available at https://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/leg-claim-manual.pdf.
48 See City of Pembroke Pines, 67 So. 3d at 1163.
Edward Ricci has been a member of The Florida Bar since 1974 and has written numerous legal papers on the doctrine of The Forgiving Highway.
Jeffery Van Treese II is an attorney in South Florida and practices intellectual property and commercial litigation, and has published several scientific and legal articles.
Michael T. Olexa is a professor and director of the University of Florida’s Institute of Food and Agricultural Sciences Center for Agricultural and Natural Resource Law.
Rick C. Briggs is a third-year law student at the University of Florida Levin College of Law.
This column is submitted on behalf of the General Practice, Solo and Small Firm Section, Damon Christopher Glisson, chair, and Joshua Hertz, editor.
