Lawsuits filed in Tennessee and South Carolina against a guardrail manufacturer whose products are used throughout the country are drawing attention to a potential hazard on highways nationwide. The different reactions of the states where the suits were filed, however, also requires our attention because of the potential legal issues it may create in the months and years to come.
According to a recent article in Claims Journal the lawsuits “accuse the Omaha, Nebraska based Lindsey Corporation of negligence in the design of X-LITE guardrails. Instead of telescoping to absorb impact when vehicles hit them, the guardrails pierced through vehicles, killing one woman and injuring another so severely she had to have a leg amputated, according to the complaints.”
Though Claims Journal reports that the company maintains “that their guardrails still meet federal guidelines” it’s obvious that Lindsey faces serious legal consequences for making and selling a product that many users now believe is defective. But the different responses from Tennessee and South Carolina also deserve our attention. According to Claims Journal “scrutiny of the guardrails has prompted Tennessee and other states to remove them from their roadways, but South Carolina transportation officials said they would leave the rails in place until they are damaged or outlive their lifespan.”
Indeed, the article quotes South Carolina’s governor praising the state transportation department for its “due diligence” and “abundance of caution” in deciding not to purchase X-LITE guardrails in the future, while also noting that the state would consider removing the existing units only “should there be any testing done that suggests these guardrails are unsafe.” Meanwhile, Tennessee and other states are busy taking X-LITEs off of their roads, accepting that the existing evidence – three deaths in two crashes, according to Claims Journal – offers more than enough evidence that there is a safety issue.
South Carolina’s approach is especially surprising because there has been extensive media coverage over the last year of the failures of X-LITE guardrails. If any further deaths or serious injuries are attributed to the X-LITE officials in other cities and states will have a difficult time arguing that they were not aware of the potential issues with the product.
As a Portland attorney I think it is important for Oregonians and Washingtonians to understand that the installation, or continued use, of a safety item that is known to have these sort of issues is not fundamentally different from a company opting to sell an item it knows to be defective (the long-running case of the Takata air bags springs to mind). A state government that turns a blind eye to safety because it does not want to spend money to fix the problem is not really any different from a private company ignoring safety warnings because it is more concerned about quarterly profits. In both cases powerful institutions are putting money ahead of people, and need to be held accountable for those decisions when the product fails and people are hurt or killed.
Claims Journal: Lawsuits Accuse Guardrail Manufacturer of Negligence
ORS 30.020: Action for Wrongful Death
Oregon State Bar: Liability for Defective Products