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By PATRICIA VOWINKEL, a freelancer who has worked for national media outlets for more than 20 years

The collapse of the Interstate-35W bridge in Minneapolis last year was a chilling reminder of just how shaky the nation's transportation infrastructure really is.

The deterioration of the transportation infrastructure is clearly a serious safety risk for drivers and a potential public relations fiasco for elected officials. But in a world where plaintiffs routinely win big jury awards against Big Business, it's not quite so easy to go up against City Hall. State and local governments actually have a fair amount of protection because of a concept known as sovereign immunity.

While immunity protections help to keep the government intact, they can leave victims with little recourse no matter how terrible their injuries or losses.

THE DETERIORATING INFRASTRUCTURE

In August 2007, the I-35W bridge collapsed into the Mississippi River below, killing 13 people and injuring 145. The bridge had been rated as "structurally deficient" and in possible need of replacement in 2005, according to the U.S. Department of Transportation's National Bridge Inventory database.

As of 2005, 156,335 of the nation's 595,363 bridges, or 26.3 percent, were structurally deficient or functionally obsolete, which is as it turns out, an improvement from 1992 when 34.6 percent were deemed structurally deficient or functionally obsolete, according to the American Society of Civil Engineers.

The cause of the collapse of the I-35W is still under investigation, but authorities have focused on a possible design flaw in some of the steel gusset plates that tie steel beams together under the bridge. Officials have also warned that added weight from construction work on the bridge may have been a factor in the collapse.

"We have in Minnesota many seriously flawed, rusted, deteriorated bridges," says Jim Schwebel, an attorney who represented some of the victims of the bridge collapse. "Some have been closed since the 35."

"It's not just a Minnesota problem, it's a systemic problem throughout the country," he adds.

Other bridges have collapsed over the years as well. In 1967, the Silver Bridge connecting Point Pleasant, W.Va., and Kanauga, Ohio, collapsed after 39 years of increasingly heavy traffic loads, killing 46.

More recently, in 1983, a 100-foot section of the Mianus River Bridge on Interstate-95 collapsed after one of the pins used in its construction had been sheared. Three people were killed in that disaster. Casualties from the collapse were minimized because the disaster occurred around 1:30 a.m.

To simply maintain the current condition of these deficient bridges will require an annual investment of $7.3 billion in 2000 dollars, according to the ASCE. To eliminate all bridge deficiencies will require $9.4 billion in 2000 dollars annually for a period of 20 years.

But the meltdown on Wall Street and a looming recession could force state and local governments to put infrastructure projects on hold.

"I think the extent of the problem is very significant," says Fred Pritzker, a Minneapolis personal-injury attorney who had called for the state to establish a compensation fund for victims. "With reduced taxes and declining income streams and with the age of the infrastructure, you're seeing a lot of problems, not just with bridges."

GOVERNMENT IMMUNITY

After the collapse of the I-35W, dozens of the victims of the disaster prepared to sue the state. But suing the government--and coming away with any meaningful award--is no simple task.

State and local governments are, first of all, often protected from litigation by a centuries old concept known as sovereign immunity.

"Most cities and states know that under the common law they have very broad immunity from suits," Schwebel says. "This goes back to English common law that held the king can do no wrong and the king has no liability to his or her subjects," he says.

Over the years, however, the concept of sovereign immunity has been eroded by legislatures, and these sovereign protections can now vary greatly from state to state.

"Liability exists to the extent that the legislature says the entity can be sued," Schwebel says. "Every state has its own pattern and plan for when suits against the government are allowed."

Even if some states allow litigation against the government, all but 15 states impose statutory caps on the amount that they can be sued for, Schwebel says.

At the time of the Minnesota bridge collapse, for instance, Minnesota had a cap on its liability of no more than $300,000 per person or $1 million per incident, Schwebel says.

Because of the catastrophic nature of the incident, the Minnesota legislature passed a special law in May appropriating a combined total of $39 million for the victims. When the legislature passed the law creating the fund, it specifically required that the state and related entities be released from liability in exchange for agreeing to accept the funds.

Individuals who agree to receive an award from the fund must agree to release the state from liability. Individuals can decline to receive an award from the fund and pursue litigation, but they have no incentive to do so, Schwebel says.

That's because the state has already agreed to pay out $39 million, well above the liability cap of $1 million under state law.

Victims, therefore, can take the money offered by the state in the compensation fund, or most likely end up with nothing. As one would expect, Schwebel says there are no lawsuits against the state pending at this time.

Although the law establishing the fund resolves the question of potential liability against the state, it does not end litigation against third parties. In the Minnesota bridge case, there are some third parties that could be held liable.

In lawsuits against the government, even if litigation were allowed, the case still would have to have merit for it to succeed. And public entities are often granted a great deal of discretion in the choices they make about how to use their resources.

"The state will always say we didn't have enough resources to fix or staff inspections or had more pressing projects, and that will almost always prevent any action," Pritzker says.

In other cases, the state or local government may not be the responsible party. And in that case, the plaintiffs might have a chance where litigation is concerned.

Even though the government may own the road or bridge, it may be the responsibility of a transportation authority to maintain the structure, says Mary Stewart, director of research and development at the Public Entity Risk Institute.

While the government may be protected under sovereign immunity, transportation authorities, such as the Port Authority of N.Y. and N.J., are not protected, she says.

In fact, the Port Authority, as the owner of the World Trade Center, was sued after the Sept. 11, 2001, attacks.

"There was no way they could hang on governmental immunity," Stewart says. If the Port Authority had tried to claim immunity from lawsuits, there would have been a huge protest, she says.

Public entities such as state and local governments, therefore, need to recognize that, while they may have immunity from litigation, other quasigovernmental agencies responsible for maintenance of infrastructure may not have the same protection.

DAMAGE TO THE PUBLIC TRUST

For the victims of these catastrophic infrastructure failures, these caps and immunity protections can be frustrating. "People who are horribly, horribly injured or killed have no recourse," Pritzker says.

"I think it's bad policy," Pritzker says. "For good or for ill, depending on what your belief about it is, the tort system does create a safer society. If it weren't for the tort system, everyone would still be driving Corvairs around."

"When you prevent liability, you get lackluster safety," he says.

In an article that he wrote shortly after the bridge collapse, Pritzker commented: "These new doctrines are called immunities, a fancy term that essentially means that, even if mistakes are made, the government doesn't have to pay for them. With names like 'discretionary immunity' and 'official immunity,' the law has 'evolved' to such a point that ordinary citizens hurt or killed by government neglect are powerless to obtain compensation for their losses."

For public entities, those caps and immunity protections can help to keep the litigation risk low. But even if a case is eventually dismissed or is ultimately unsuccessful, public entities can still face some fairly significant legal defense costs.

Insurance can help to provide public entities with coverage for defense costs, especially those that are too small to have their own attorney to handle their defense, says Claire Lee Reiss, deputy executive director and general counsel at the Public Entity Risk Institute.

Once an incident occurs, however, the public entity does have a responsibility to make sure that it does not happen again, Stewart says. If lightning strikes twice, then there may no longer be any immunity protection.

While insurance can help public entities with legal defense costs, good risk management can help to prevent an incident from taking place in the first (or second) place.

Infrastructure has suffered from neglect over the years, and it will take time and money to make the needed repairs. In today's economy, some of those projects may have to be postponed, and that could put more people at risk.

While the litigation risk for public entities is low, other agencies such as transportation authorities are at risk. And even though they are often protected by immunity and caps on the amount they are required to pay, smaller municipalities could benefit from having insurance to help manage defense costs.

December 1, 2008

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