DUCHESNE — Could a Utah Department of Transportation crew have done more to prevent a 2011 road collapse that led to the death of a teenage girl and the injury of two people?
"Probably," Judge George Harmond acknowledged.
Should they have done more?
"Probably," the judge said again.
Despite those beliefs, Harmond ruled Thursday that Heidi Paulson and the parents of Justine Barneck cannot sue UDOT because the Utah Governmental Immunity Act prohibits such a lawsuit.
"This was a terrible tragedy. My feelings go out to these families for their suffering," Harmond said, before ruling that UDOT is immune from the suit brought by Paulson and the Barnecks because their losses arise out of the state agency's "management of flood waters."
Justine Barneck, 15, was killed just before midnight on July 13, 2011, when the sport-utility vehicle she was riding in crashed after vaulting over a 30-foot-wide by 20-foot-deep chasm that had opened in state Route 35 near Tabiona.
Barneck's father, Michael, was seriously injured in the crash on the dark, rural road. So was Heidi Paulson, whose own SUV plummeted into the void shortly before the Barnecks' crash.
The massive washout was caused by runoff from a storm that had rumbled through the area about 11 hours before the crashes. The storm dropped more than an inch of water in about an hour on the hills north of SR-35, according to a meteorologist hired by the Barnecks and Paulson.
All that rain overwhelmed two culverts in the area, sending water and debris across the roadway. A third culvert became blocked entirely, causing a pool of water to form against the north shoulder of SR-35 that UDOT crews said was 16 to 20 feet deep.
It was that section of road that ultimately failed because UDOT did not take adequate steps to either clear the culvert or find another means of eliminating the standing water, according to Mark Bennion, attorney for the Barnecks and Paulson.
"This was a common storm," Bennion said. "Storms like this happen over and over every summer in Utah."
He said the UDOT crew working that day wasn't concerned about the potential for a road collapse, even though they acknowledged in later statements that a large amount of standing water next to a road can pose such a threat.
Instead they were more worried about clearing debris from the road's surface and getting off work on time, Bennion said.
"It was like, 'It's 4:30 (p.m.), it's quitting time, park the stuff, see you guys tomorrow,'" he said, noting that no inspection was ever made to ensure that runoff seen on the south side of the road was coming through the culvert and not seeping through the base of the road, causing it to erode.
There were also no warnings signs posted to alert drivers to a potential hazard and no one was assigned to conduct checks on the site to ensure that the standing water didn't damage the road, Bennion said.
"The state has a responsibility to keep the roads safe," he said.
Assistant Utah attorney general Reed Stringham said UDOT acknowledged there is "undisputed evidence" that the blocked culvert and standing water caused the washout and subsequent crashes. But, he argued, the crews working that day made a decision that it was safe to allow the water to recede on its own.
However, even if that decision constituted negligence on UDOT's part, Stringham said, the agency cannot be held liable because the crash was the result of its efforts to manage flood waters.
"There wasn't a flood," Bennion countered, "and they didn't manage anything."
"When UDOT blocks a normal watercourse, they don't get to call 'flood waters' and claim government immunity," he said. "The only reason the water rose and overflowed was because their structure was blocking it."
Harmond, however, disagreed.
"It's clear that this was a flood event," he said. "It doesn't have to be a natural disaster to be a flood event."
After the ruling, Bennion said it was too soon to say whether Harmond's ruling will be appealed.
"We'll have to talk with our clients and make a decision," he said.
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