Originally posted on the Law360.com website on August 3rd, 2018:

Gov’t Can’t Shake Negligence Suit Over Crash On BW Parkway

By Daniel Siegal

Law360 (August 3, 2018, 8:02 PM EDT) — A Maryland federal judge on Thursday denied the federal government’s bid to dismiss a suit alleging its failure to maintain the painted white lane line, or fog line, on the side of the Baltimore-Washington Parkway caused an accident that killed a man and injured his fiancee.

In a 17-page memorandum opinion, U.S. District Judge George J. Hazel rejected the government’s motion to dismiss a pair of consolidated suits filed by the surviving family members of the deceased Rick Warrick and by his fiancee, Julia R. Pearce, which allege the government’s negligence in maintaining the fog line was behind the couple’s 2015 accident and violated the Federal Tort Claims Act.

Judge Hazel rejected the government’s argument that its maintenance of the fog line was a “discretionary function” of the government, and thus immune from claims under the FTCA, finding that Federal Highway Administration standards required the government to maintain the parkway to the condition in which it was built — which includes the fog lines.

“The government obviously designed the BW Parkway to have fog lines and therefore had an obligation to maintain the BW Parkway to that standard ‘and in a condition that promotes safety and protects capital investment,’” Judge Hazel wrote.

Jon Pels, representing the plaintiffs, told Law360 on Friday that had the fog lines been present, the accident would have never happened.

“The government tried to argue that they didn’t have the resources to put the fog lane lines down,” he added. “Obviously we did not find that argument to be well-received by our side and I don’t think the court believed it either.”

An attorney for the government did not immediately respond to a request for comment on Friday.

Warrick’s family — including his five children and his parents — filed suit in April 2017, and Pearce filed suit three months later, alleging that while Pearce was driving her car northbound on the BW Parkway with Warrick in the front seat and two of his children in the back seat, the car got a flat tire.

Pearce pulled over to the right shoulder, parked the car, and held the flashlight while Warrick attempted to fix the tire, during which time another driver, Earl Teeter, hit them from behind, before driving away, the plaintiffs contend. Teeter was later found guilty of unsafe operation of a vehicle and failing to stop at the scene of an accident, according to Thursday’s ruling.

The Warrick family and Pearce allege that the curb and shoulder on the parkway were badly degraded, rendering the white fog line almost entirely invisible for the several hundred yards leading up to where the couple had parked, and that had the line been maintained, Teeter would not have hit Pearce and Warrick.

The government’s motion to dismiss, in addition to arguing it is immune under the FTCA, also argued that it did not have a duty to maintain the fog lines, and even if it did, any breach of that duty was not the proximate cause of the accident.

On Thursday, Judge Hazel rejected both of these arguments, finding that the plaintiffs had sufficiently alleged the government had a duty to maintain the parkway in a safe condition and failed to do so, and that Teeter had been attempting to stay in his lane before the disappearance of the fog lines caused him to veer off the road and hit Pearce and Warrick.

The Warrick family is represented by Jon D. Pels. Pearce is represented by Salvatore J. Zambri of Regan Zambri Long.

The government is represented by acting U.S. Attorney Stephen M. Schenning and Assistant U.S. Attorney Sarah A. Marquardt.

The cases are Maurice A. Williams et al. v. United States of America et al., and Julia R. Pearce v. United States of America et al., case numbers 8:17-cv-01125 and 8:17-cv-01816, both in the U.S. District Court for the District of Maryland.