In Legal Terms - Convention Issue 2001

Abuse of Roads Costs Counties Money and Energy

One of the many problems facing counties in the area of road and bridge construction and maintenance is that of damage to the roads and bridges due to misuse, abuse, negligence, and vandalism. This can be extremely frustrating to county commissioners and county engineers because the demand to keep the roads in good working condition is a never-ending battle, and the efforts to accomplish this task are frequently thwarted by misuse and abuse of the roads.

Trucks traveling county roads with weights well in excess of limits posted, materials spilled onto the road, sloppy loading and unloading, and careless driving causing damage to curbs and rights of way can all cause serious damage to the roadways and create maintenance nightmares. In addition, road signs must constantly be repaired or replaced due to negligence, vandalism, and theft.

These are expensive problems for the county, using up both financial and manpower resources. There is little that can be done to alleviate the hours that must be spent on repair and maintenance of county roads and bridges. However, there is some ammunition for addressing the financial problems created by misuse, negligence, and vandalism through diligent application and enforcement of Alabama's general laws designed to protect public highways.

Code of Alabama 1975, § 32-5-4 makes it a misdemeanor to unload lumber, logs, or any other article upon a highway or within the limits of a right-of-way of any public highway. Fines run from $25.00 to $100.00. It is also illegal to load from any ramp, platform or other loading device. Code of Alabama 1975, § 32-5-3.

Code of Alabama 1975, § 13A-8-71 makes it unlawful to possess a traffic sign erected by the state, a county, or a municipality, and makes it unlawful to deface, destroy, or remove any traffic signs or traffic-control devices.

Criminal penalties for these violations are set out in Code of Alabama 1975, § 13A-8-72, and range from a $50.00 fine for unlawful possession of a traffic sign to possible conviction of a Class C felony for damage in excess of $1,000.00.

In addition to the fines, the parents of a minor shall be liable for actual damages and court costs for the destruction or defacement of any public road sign by the intentional acts of the minor. All fines collected for violations of § 13A-8-71 shall be deposited into the county general fund, and one-half of the fines shall be designated to the county road and bridge fund. Code of Alabama 1975, § 13A-8-73.

Code of Alabama 1975, § 13A-8-71 also provides in subsection (d) that, "It shall be unlawful for any person to intentionally deface any public building or public property." While this Code section is apparently intended to apply to acts of vandalism, if the definition of "public property" is broad enough to include a public road or bridge, it may be that penalties (including restitution) could be assessed under this section for the willful or reckless damage to a road, such as by carelessly loading logs or intentionally carrying overweight loads.

In addition to the criminal penalties set out above, there is also a provision in Alabama law directly aimed at requiring those responsible for damage to public roads and bridges to reimburse the entity responsible for the roadway. Acknowledging that in many instances counties may have a difficult time determining who exactly is responsible for the damage, where proper evidence can be obtained, Code of Alabama 1975, § 32-5-9 provides an excellent avenue for monetary relief. Section 32-5-9(a) provides that:

"Any person driving any vehicle, object or contrivance upon any highway or highway struc - ture shall be liable for all damage which said high way or structure may sustain as a result of any ill- egal or careless operation, driving or moving of such vehicle, object or contrivance, or as a result of operating, driving or moving any vehicle, object or contrivance weighing in excess of the maximum weight prescribed by law but authorized by a special permit issued as pro- vided in Section 32-9-29."

Section 32-5-9(b) provides that if the driver is not the owner, but is operating the vehicle with the express or implied consent of the owner, the driver and owner are jointly and severally liable. The law also specifically provides that damages may be recovered in a civil action brought by the authorities in control of the highway or highway structures. Code of Alabama 1975, § 32-5-9(c).

Several counties have been successful in working out arrangements with persons and companies responsible for road and bridge damage to pay for and/or make necessary repairs, and in this regard, the attorney general has held that the county may enter into an agreement with the party responsible for the damage to hire contractors to make repairs so long as the contractors comply with state road specifications. AG's Opinion # 91-24. However, where amicable arrangements for repair of damage cannot be worked out between the county and the responsible party, the county has a clear legal right under § 32-5-9 to sue for and recover damages in a court of law.

There is at least one case out of the Supreme Court of Alabama that has addressed and upheld the right to damages under § 32-5-9, where damage to a county road or bridge is the direct result of actions of someone misusing the road. See, Tuscaloosa County v. Jim Thomas Forestry Consultants, Inc., 613 So.2d 322 (Ala. 1992). In this case, the county had sued Jim Thomas Forestry Consultants for destruction of a bridge which occurred when one of its trucks weighing four times the posted carrying capacity crossed over the bridge. The jury had ruled in favor of the county, and the Supreme Court upheld that judgment on appeal. Moreover, the state's highest court ruled on the proper procedure for calculating damages, making clear that damages in this area are to be determined based upon repair or replacement cost.

Of course, in order to avail itself of the statutory remedies available to the county as discussed in this article, the county must take an active role in enforcing these laws and obtaining sufficient evidence to make its cases in court. This unfortunately will require an investment of already-overworked manpower. However, the financial rewards may outweigh the administrative costs and time involved in pursuing these actions. And since the county faces not only political pressure from its citizens to keep the roads properly maintained and repaired, but also possible liability for injury resulting from dangerous roads and bridges and lack of proper signage on the roads, it may well be in the county's best interest to take an aggressive and pro-active role in protecting its roads and bridges against vandalism, and negligent or careless use and misuse.