Testimony in INDOT lawsuit: For years citizens urged the state to fix site before fatal 2017 crash into Wabash River
By JESSICA BRICKER
A motion for summary judgment has been taken under advisement and a five-day jury trial postponed until December in the wrongful death lawsuit filed by a Berne family against the Indiana Department of Transportation.
Last year, Wells Circuit Court Judge Kent Kiracofe set the trial for this month. However, a hearing in May led to the judge to take under advisement the state’s motion to decide the case without a jury. In the meantime, the trial was reset for Dec. 12-16.
In preparation for a trial, dozens of pages of documents have been filed by both parties.
Among the documents filed by the attorney for Robert Green — whose wife Sherry died after crashing into the Wabash River along Ind. 116 near Vera Cruz in December 2017 — are copies of email correspondence a Berne resident who worked in Bluffton had with INDOT officials in 2014 and 2015, urging the state to address the stretch of highway along the river.
According to an affidavit signed by Brian Dynes and filed last month, he was worried about the highway years before Sherry Green’s fatal crash.
For more than 30 years Dynes worked in Bluffton and travelled Ind. 116 from his home in Berne as part of his daily commute.
“Over the years, I observed the gradual erosion of the land separating the river from the highway for an extended distance,” Dynes wrote in his affidavit. “I became increasingly concerned about the danger presented to people who were using the road, who might not be as familiar with the highway as I was, and who might still pull off the road for some reason and unknowingly fall into the river. I also had a great concern that someone could slide off on ice or gravel or swerve to hit a deer or something, and still find themselves in the river even if they were previously aware of the danger. I was particularly worried that something might happen to one of the many school buses that travel that road.”
He said he first reached out to INDOT sometime around 2014 “to emphasize the extreme danger presented by the lack of guarding along Ind. 116 protecting motorists from falling into the river.” He said he offered to personally show state officials the areas in question, but no one agreed to do so “and no action was ever taken to safeguard the highway from the eroding river bank.”
After Sherry Green’s death, he located some of his email correspondence with the state, which was filed in Wells Circuit Court with his affidavit.
“Around the time of Mrs. Green’s death, a few orange construction barrels were placed along the edge of the highway where the bank was most eroded. These do not look to be strongly anchored, or capable of obstructing a vehicle that has left the highway from getting into the river,” Dynes wrote in his affidavit. “No other measures of any kind have ever been taken to protect highway travelers from this dangerous hazard.”
Dynes’ original message to INDOT includes the specific location of the concern, which “has eroded a high bank to the point that the drop off is very close to the road.” He added, “It is a substantial drop into the river at that point. A vehicle can slide off at that point into the river. There is no guard rail.”
The email correspondence includes a response from INDOT dated January 2015, assuring Dynes his “concern has been forwarded to the environmental engineering department for investigation and review.”
Dynes reached out to INDOT again in March 2016 about the situation he felt was “getting very dangerous.”
“If not mistaken, I was advised that the area of concern would be evaluated and the proper steps taken to correct or at the least post warning signs. To date I see nothing that has been fixed, posted or flagged,” he wrote. “Those areas of river erosion are now very close to the edge of the road.”
The plaintiff’s counsel also contacted people who had crashed into the river at the location previously.
Sheri Daniel crashed there in January 2012. She said efforts were made after her crash to get the state to fix the situation, but nothing was done. Then Derick Franks crashed there in December 2014.
“Erosion of the bank continued after my incident and is still increasing even today,” Franks wrote in his affidavit. “No guard rails or any other means of preventing vehicles from entering the Wabash River at that location have been placed there. Three or four orange traffic barrels were left at that location sometime later, after one of the big trees was no longer there, but these barrels would not be able to stop a vehicle from going into the river.”
Another document filed in December 2021 was an investigation into the circumstances surrounding the crash.
“Guardrail was warranted in the area where Mrs. Green went off the road into the river long before her crash,” H. Richard Hicks, a forensics engineer, wrote in his report filed with the court. “There may have been another type of roadside barrier that would also have been appropriate for use there.”
The process to install a guardrail should have been initiated by INDOT at the latest in early 2013, after two similar crashes in about a year’s time, Hicks said.
“At the time of Mrs. Green’s crash there should have been a guardrail present along the side of the roadway to shield traffic from the hazard of the steep slopes and the Wabash River,” he added. “The lack of a guardrail where Mrs. Green went off the road and into the river was a dangerous condition. A proper guardrail there would have kept cars from going into the river, and serious injury would not have been expected from impact with the guardrail.”
Hicks also alleges the curve in the highway where Green crashed at was maintained by INDOT in “sub-standard condition” in terms of the slope.
“The curve involved in Mrs. Green’s crash was part of an INDOT resurfacing project in 2006,” he added. “The sub-standard conditions in the curve could have been corrected as part of INDOT’s 2006 resurfacing project, but were not.”
Attorneys for INDOT are arguing that the state is exempt from such a lawsuit under weather and design immunity provisions in state tort law.
At the time of the crash, the roadway was snow-covered and icy, a temporary condition that worsened the roadway’s ability to be driven, the state argues. The state also filed depositions showing INDOT was in the process of treating the roadway for the weather conditions around the time of the crash
Also, the highway design is more than 20 years old — original engineering documents are dated from 1938 — and has not been substantially redesigned since, which the state argues qualifies for immunity.
A report filed from Focus Forensics out of Utah showed a decline over the years in the distance between the riverbank and the roadway — but compliance with the INDOT standard of 10 feet of clearance.
Original plans for the highway indicate a 30-foot clearance, the forensics report said. In 2011, that had decreased to 20 feet in some areas and to 15 feet several years later.
But the reconstructionist said at the time of the fatal crash, clearance at the site was between 24 to 32 feet — exceeding the state’s minimum standard for clearance.
jessica@news-banner.com
