The Delaware Department of Transportation (“DelDOT”) is a State agency with the statutory responsibility of caring, managing, and controlling the public roadways and highways in Delaware.  Within the past year, the issue of safety of Delaware’s Route 1 (SR 1) has been a focus in the local news after recent fatal cross-over and run-off accidents have occurred along the coastal roadway to the Delaware beaches.  When tragic accidents such as these occur, the question of whether barriers should have been in place to prevent such accidents are always discussed and can lead to the question of whether DelDOT can be held accountable in a civil case for injuries and damages caused by unsafe road conditions.

The answer to this question begins with a quick review of Delaware’s Constitution of 1897.  Article 1, Section 9 of the Delaware State Constitution provides for sovereign immunity for tort actions brought against the State and employees of the State in their official capacities.  The Delaware Supreme Court has stated that “sovereign immunity is an absolute bar to liability claims against the State of Delaware unless waived by the General Assembly.  Turnbull v. Fink, 668 A.2d 1370, 1374 (Del. 1995) (citing Wilmington Housing Auth. v. Williamson, 228 A.2d 182, 786 (Del. 1967)).  To overcome the State’s immunity from civil liability, you must prove that the State waived immunity and that the claim is not otherwise barred by the State Tort Claims Act, which would allow a claim against a State agency or department when meeting certain criteria.  Based upon a review of prior cases, DelDOT has not waived its sovereign immunity protection because, without the purchase of liability insurance, the analysis does not extend past the sovereign immunity issues. Without the waiver of sovereign immunity, recourse against DelDOT is not an option when roadway conditions cause injuries.

Although DelDOT enjoys immunity protection, the constitutional immunity granted to state agencies does not extend to third-party contractors engaged by DelDOT.  While DelDOT still oversees roadway construction projects, they are often performed by third-party contractors who have entered into a contract with DelDOT to complete certain roadway projects.  These contractors have contracts with DelDOT that include plans as to how the roadway work is going to be performed, the types of warning signs that the contractor will post in advance of the construction work to warn oncoming drivers of the roadway conditions, and traffic plans for lane or road closures.  Although there is a duty imposed on a motorist to give full attention to the operation of her vehicle and to operate her vehicle with regard for the road, weather, and traffic conditions, there is also a duty upon the contractor to adhere to nationally accepted standards when preparing and implementing traffic plans and installing traffic control devices.  If the third-party contractor performs the roadway work in a manner that is unsafe such that it causes an accident, the injured party can pursue recovery against the contractor who performed work and had control over the work site.

If you are injured in a motor vehicle collision that you believe was caused by roadway conditions, you should consult with a personal injury attorney who will perform the necessary legal analysis to determine what recourse is available to you and where civil liability will be found.