By Tim Baxter, Road Safety and Loss Prevention Specialist
From time to time, an accident will occur on a shared county line road. Road department management should review and ensure your county line road maintenance and signing interlocal agreements are up to date and that they are in place on all sides of your county. Having good, well written county line interlocal agreements not only improves safety for the motoring public but also reduces liability for involved counties should an accident occur on a county line road and a claim or lawsuit be filed.
Should an accident occur on a county line road, both counties could be sued for a maximum one million dollars per occurrence. Ensure you are addressing road maintenance AND signing responsibilities on county line roads. Include language that pertains to driveway approaches, culverts, bridges, and other drainage structures as well. Too often, when signing is not addressed in a clear written agreement, one county thinks the other county is responsible for signing and no sign maintenance is performed, opening both counties up to liability.
Many times, agreements have been in place for long periods of time without updates or counties have never had county line road and signing maintenance agreements. Review your county line interlocal agreements for proper maintenance and signing responsibilities and ensure all issues are addressed as to who will maintain what. It is typically easiest for each county to maintain and sign specified stretches of the road, including the entire right-of-way on both sides of the road for the assigned stretches. Any roads or signing issues that are left out of the agreement could be detrimental to a case.
Make sure the proper hold harmless, indemnification, and liability insurance language is in the agreement. Additionally, make sure that you include all the provisions required by the Interlocal Cooperation Act at Neb. Rev. Stat. §13-804(3) and (4), as applicable.
The same goes for county/township road maintenance agreements. Ensure both parties are clear as to which roads counties maintain and which roads townships maintain. Attach a map, made part of the agreement, highlighting which roads are whose responsibility for both county/township and county/county road maintenance agreements to eliminate any potential for confusion or uncertainty.
A recent claim involved a fatality accident on an east-west county line road that became muddy and slippery due to a rainstorm. A driver out spraying fields went onto this road in a semi-truck with flatbed trailer carrying water tanks. Although no one witnessed the accident, it appeared from post-accident photos that the driver slid off the traveled surface of the road, and the semi cab tipped over onto its top in the ditch, injuring the driver, who ultimately died. The widow of the driver filed a lawsuit against only the county on the south side of the road, alleging that the cause of the accident was insufficient gravel on the surface of the road and/or a failure to place a sign warning that the road was slippery when wet.
However, according to the two counties’ interlocal agreement, the county line road was maintained by either the northern county or the southern county in alternating assigned three-mile stretches. The location of this accident happened to be on a stretch of the road that was solely maintained by the county to the north, not the county to the south. Both counties fully cooperated in the defense of the claim, and the defense attorney assigned by NIRMA was able to present evidence in court demonstrating: 1) that the plaintiff had sued the wrong county because the duty to maintain and sign had been entirely delegated by contract to the northern county, and 2) that sovereign immunity applied to bar the claim under the “conditions caused by weather” and “discretionary function” exemptions in the Political Subdivisions Tort Claims Act, such that it would be futile to sue the other county. The records of the county on the northern side also showed that its employees were adequately carrying out maintenance and signing on the stretch of road where the accident took place. The case was dismissed in a summary judgment. But without the interlocal agreement and the excellent county employees who faithfully followed its terms and kept good documentation of the road maintenance performed, it would have been a much more complicated and difficult claim to defend.
NIRMA attorneys have recently updated our 2012 sample county line road interlocal agreement for maintenance and signing. It is encouraged that you replace your old agreements with the new, updated version on all your shared county line roads. Always have your county attorney review any and all agreements prior to adoption. If you do not have county line interlocal road and sign maintenance agreements in place, contact me and I will assist in that process. The updated sample agreement can be downloaded through our Interact Portal by clicking HERE. If you do not have an Interact Portal id, reach out to your NIRMA Contact to have them download the file for you.
Remember to attach a highlighted map of the roads involved which should be an integral part of the agreement. This highlighted map must coincide with the written road descriptions in the agreement.