By Erika Butler, firstname.lastname@example.org
6:36 PM EST, November 8, 2012
After years of back-and-forth in the courts, a lawsuit filed in 2004 against the State of Maryland over the death of a 12-year-old girl in a 2001 crash on the Hatem Bridge is finally being heard this week in Harford County Circuit Court in Bel Air.
The lead plaintiff, Garrett P. Tollenger of Churchville, is the father of Ashley Paige Tollenger, who was 12 when she and her stepfather, Kenneth Edward Connor, 52, were killed in a crash on the Hatem Bridge in Havre de Grace. He is also suing on behalf of his daughter's estate, for which he is personal representative.
The state defendants, which include the Maryland Transportation Authority, the Maryland Department of Transportation and the State Highway Administration, were negligent in not erecting a dividing barrier on the four-lane bridge, especially when they became aware of potential safety issues, Tollenger's lawyer, Clay Barnes, told a nine-member jury during opening arguments Wednesday morning before Judge M. Elizabeth Bowen.
The trial, which is being conducted to determine if there was negligence on the part of the defendants, is expected to continue through next week. There is no claim for monetary damages in this phase of the proceedings.
"The state has failed to use reasonable care to protect the public," Barnes told the jury.
Tollenger is not in court for sympathy, Barnes said; "he is here to see ... justice."
The Maryland Transportation Authority, however, said it was the weather the day of the crash, not the lack of Jersey barriers, that caused the accident and the two fatalities.
It was raining hard on Aug. 10, 2001, when Ashley and her stepfather, Mr. Connor, were riding west on the bridge on Route 40 over the Susquehanna River. Mr. Connor's pickup truck hit water, began to hydroplane and crossed the center line into oncoming traffic, police said in their 2001 report about the crash.
The pickup was hit by a Jeep Cherokee driving by a 21-year-old Colora man, 21, whose passenger was a 17-year-old Havre de Grace girl. The Jeep hit the pickup on the passenger side, killing Ashley almost instantly; Mr. Connor was pronounced dead at nearby Harford Memorial Hospital.
"The other half of the story is this is a case of misplaced blame," Stephen Thibodeau, an assistant attorney general for Maryland, told the jury during opening arguments. "As tragic a loss as Ashley Tollenger's life is, and it is a tragic loss, it is not the fault of the Maryland Transportation Authority."
While the plaintiff claims the accident happened because there were no barriers between lanes, and the state was negligent, "the evidence will demonstrate that simply is not true," Thibodeau said.
"The cause of the accident was Mr. Connor lost control of the vehicle," he said.
Among the witnesses in the case is Jim Harkins, who wrote a letter to the state asking for safety improvements to the bridge when he was Harford County executive. Now head of the Maryland Environmental Service, a state-controlled agency, Harkins testified Wednesday afternoon.
Barnes told the jury during his opening statement that, after one fatal crash on the bridge and another serious one a few months later, the state had considered erecting some type of barrier and examined its options.
In February 2000, Harkins, in his official capacity as the county executive, wrote a letter to the Maryland Transportation Authority requesting a study be done on putting some type of divider on the bridge, Barnes said.
His request was prompted by a letter from Edward Myers, who was hurt in a crash on the bridge, just a couple of months after the 17-year-old son of a woman Myers knew was killed in a crash on the bridge.
"He implored [Harkins'] office to do something to make it safe," Barnes said.
What Harkins didn't know, Barnes told the jury, was that a week or so earlier, the transportation authority's chief engineer had recommended that a concrete barrier be installed down the center of the bridge.
"That had been done internally by the Maryland Transportation Authority's chief engineer," Barnes said.
The state considered several options, Barnes said, and ultimately decided on a type of barrier that would be the least expensive, the easiest to install and would cause the least damage to the bridge deck.
Then in October 2000, the project was canceled, "just like that," he said.
Because those barriers were not installed, the state was negligent and therefore responsible for Ashley's death 10 months later, Barnes argued.
Knowing the safety problems with the bridge, the state did nothing to protect drivers and neglected the bridge to the point Mr. Connor hydroplaned and crashed into another car.
The state's "failure to implement and get a barrier up caused the death of two people and injured two others," he said.
A concrete barrier topped with reflectors has since been installed the length of the bridge between the eastbound and westbound lanes.
State sought dismissal
The state defendants, claiming sovereign immunity from civil liability, tried to get the suit dismissed before it went to trial and at one point succeeded, according to the docket entries in electronic court records.
In October 2009, Harford Circuit Judge Emory A. Plitt Jr. issued a summary judgment in favor of the state defendants on grounds of immunity, but his order was appealed by the plaintiffs to the Court of Special Appeals, according to the court records.
In August 2011, the Court of Special Appeals reversed the summary judgment and remanded the case to the Circuit Court for trial, according to the records.
Before that, during 2007 and 2008, the state defendants tried to prevent the plaintiffs from obtaining certain documents from them during the case's discovery phase, claiming "executive privilege." Plitt, however, denied their motions, records show, and then also denied their request to stay his order while they appealed.
The documents release order also went to the Court of Special Appeals, which, in June 2008, upheld the Circuit Court's order, according to the case record.
Robert Miller, an expert witness for the state with CED Investigative Technologies, testified Thursday.
He described the many factors that cause hydroplaning, saying that water creating a barrier between the tire and road was only one.
"Hydroplaning is a function of vehicle speed," Miller said, adding that tire pressure and wear are also involved.
Sgt. Keith Budnick was the investigating officer at the scene in 2001. Budnick was a patrol officer with the MdTA assigned to the Hatem Bridge at the time of the crash.
That day in August was particularly rainy, he testified. Budnick was one of the first officers on the scene of the accident and was about half a mile away when he heard the call come in over the radio. He drove 5 miles per hour with the wiper blades on the highest speed because it was hard to see through the rain.
Barnes asked how bridge conditions looked that day.
"Extremely wet because it was pouring rain," Budnick answered. He said he couldn't recall how much water was on the bridge, or if it was standing or draining off.