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Florida guardrail lawsuit: Florida DOT to blame for injuries after incorrect installation

Posted at 1:53 PM, Aug 27, 2014

A state transportation department is to blame for a man losing his leg after a car crashed into a guardrail that was incorrectly installed, according to a new lawsuit filed in Florida.

In October 2010, Charles Pike was a passenger in a Ford truck traveling along a state highway in a rural county west of Orlando. According to the lawsuit, an animal ran out into the roadway, causing the driver to swerve off the road.

Losing control, the truck left the roadway, and crashed straight into a guardrail. The guardrail came through the cabin, slicing Pike's left leg below the knee to the bone, according to a lawsuit. The leg was surgically amputated the same month.

"He's been struggling. It's been difficult for him," said Pike's South Florida lawyer, Ted Leopold. "He had a traumatic amputation. A very active young guy has had his life altered in many ways as a result." Leopold is an attorney with Cohen Milstein Sellers & Toll PLLC.

The guardrail Pike’s vehicle crashed into was an ET-Plus guardrail manufactured by Trinity Industries, according to the lawsuit.

Originally, Leopold filed a lawsuit against both Trinity and the Florida Department of Transportation, FDOT.

At the time, Pike’s lawsuit was one of at least eight lawsuits or attorneys general complaints in recent years against Dallas-based Trinity Highway Products, claiming a small alteration to a device at the beginning of guardrails, known as an end terminal or guardrail head, has caused four deaths and nine injuries, a Scripps investigation found.

In response to the original lawsuit involving Pike’s accident, Trinity blamed the driver and the FDOT, which "was negligent in assembling a collection of random parts as an end treatment system."

Pike’s new lawsuit was refiled after the court ruled the issue at debate in the Pike case is not primarily about the safety of the product but about the installation by the FDOT. As a result, Trinity is no longer named as a defendant in the lawsuit.

According to the new complaint, the FDOT was negligent in keeping up with maintaining the roadways. Leopold said the guardrail Pike crashed into was involved in a previous accident and improperly repaired.

“When FDOT came out to repair it they reinstalled the guardrail improperly leading to the end terminal’s catastrophic failure in this accident,” Leopold said. “To make things worse, when the FDOT came out to fix the guardrail after Charlie Pike’s accident, they reinstalled the guardrail defectively again. We had to show them why their installation was wrong and defective.”

Leopold said the guardrail has since been repaired and reinstalled correctly.

Click below to see a photo slideshow of how the guardrail was installed before and after the crash.

According to the new lawsuit, after an accident in 2009, FDOT repaired the guardrail using a department field crew and prison inmates. To complete the repairs, the crews used “a random collection of parts from the FDOT warehouse, rather than with ET-Plus replacement parts, including an obsolete piece of guardrail built in 1965 that had not been approved for use on U.S. highways since 1994.”

“It is unacceptable that a state agency commissioned to manage our roadways can continue to make the same choices, despite its catastrophic consequences,” Leopold said.

In an email, Dick Kane, communications director for the FDOT, said the department is evaluating the ongoing litigation.

Through an agreement with the Florida Department of Corrections, inmates provide maintenance service to the FDOT with the supervision of corrections and transportation personnel. For fiscal year 2014-2015, $19 million has been appropriated to spend on inmate labor within the FDOT.

Pike’s complaint is one of many claims, made in Texas, Tennessee and Florida, among other states, which boils down to a change made in 2005 to Trinity's ET-Plus, a rectangular device attached to the start of a guardrail.

RELATED: Victim: Highway guardrails 'designed to save lives, not destroy them'

Rather than sweep a vehicle off to the side, as the end terminal is designed to do, the redesigned ET-Plus has caused guardrails to pull up, ramming through the front of vehicles and into cabins, lawyers and plaintiffs say.

They argue Trinity engineers reduced a small part, called a feeder channel and the reduction is significant enough to change how a guardrail reacts when hit by a car. Hundreds of thousands of the roughly $1,500 devices are on highways across the country, they say, though an official count isn't publicly known.

RELATED: Victim calls 911 after guardrail crash cuts victim's legs [VIEWER DISCRETION ADVISED]

Trinity is also currently involved in a possible billion-dollar whistleblower lawsuit in a federal court in Texas.

Whistleblower and former industry business owner, Josh Harman, filed the suit on behalf of the American public because he said the current Trinity guardrails, the ET-Plus model, are dangerous and deadly. He said the guardrails were never properly tested or properly approved by the government.

Trinity has said in statements the company stands behind its product and has called Harman’s allegations “false and misleading.”

The lawsuit ended in a mistrial last month after U.S. District Judge Rodney Gilstrap said there were “serious concerns” regarding witness truthfulness associated with the defendant, highway manufacturing giant Trinity Industries.

Lawyers for Public Justicefiled a motion on behalf of The Center for Auto Safety and The Safety Institute to unseal documents associated with the case after some were sealed, keeping them out of the hands of the public.

A new trial is expected in the federal whistleblower case later this year, possibly in the fall. It would be tried in front of a new jury.

In a June letter, the U.S. Department of Transportation’s Federal Highway Administration reiterated that the ET-Plus guardrail model is eligible for federal reimbursement. The letter was sent after the transportation agency received inquiries from State DOTs and FHWA Division Offices regarding the federal-aid eligibility of the the guardrail manufactured by Trinity.

Leopold said there are more cases of negligent installation that exist across the country and this new lawsuit is about obtaining “a full measure of justice for Charlie, a young man who will live the rest of his life paying for the negligence of officials who are tasked with keeping the motoring public safe.”

Lynn Walsh is a data content producer and investigative reporter on the Scripps National Desk. She may be followed on Twitter through the handle @LWalsh.