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Bridge collapse claims face legal hurdles

Bridge collapse claims face legal hurdles

MINNEAPOLIS—While a flood of liability claims from last week's disastrous bridge collapse in Minneapolis is virtually certain, potential plaintiffs face legal hurdles in any effort to recover damages, lawyers familiar with Minnesota law say.

The Minnesota Department of Transportation, which designed, owned and maintained the bridge, likely is a primary target of claims, particularly given last week's discovery that it decided against reinforcing the bridge's structural members last year.

The state has a sovereign immunity statute that allows tort claims only in limited circumstances, though, and there is a "reasonable chance" that the state would be totally immune, said Richard Allyn, a lawyer with Robins, Kaplan, Miller & Ciresi L.L.P. in Minneapolis and a former Minnesota solicitor general.

If claims are allowed, state law would cap recoveries at $300,000 per person and $1 million per occurrence.

Other possible targets of lawsuits, meanwhile, are private contractors and consultants that DOT used over the years to work on the bridge. Work has ranged from the kind of road resurfacing that was under way at the time of the collapse to consulting engineering services on inspection and repair issues.

The extent--if any--to which contractors contributed to the disaster remains to be seen, lawyers note. In addition, Minnesota's "statute of repose" may protect any company for work performed more than 10 years ago, confirmed David B. Potter, a lawyer with Oppenheimer Wolff & Donnelly L.L.P., who has defended companies in mass tort cases.

The law bars claims related to "improvements of real property"--arguably including bridge repairs--that are older than 10 years, lawyers say.

The 1,907-foot I-35W bridge, the most heavily traveled span in Minnesota, collapsed into the Mississippi River during the evening rush hour last Wednesday, plunging dozens of vehicles and their passengers into the water or stranding them on buckled approach roads.

As of Friday, authorities had confirmed five deaths and 100 injuries, with the number of people missing, which ranged from seven to 30, still in dispute.

Since 1990, the 40-year-old steel-deck truss bridge has been designated "structurally deficient" under federal standards, a category that includes thousands of U.S. bridges but does not necessarily mean that a bridge is unsafe, state and federal officials said.

The design of the I-35W bridge, though, left it with 52 steel beams that engineers considered "fracture critical," meaning that the failure of any one element could cause the entire bridge to collapse, according to a July 2006 report prepared for the state DOT by San Francisco-based consultant URS Corp.

An earlier 2001 report by University of Minnesota engineers noted that concerns about cracking in the deck truss system were heightened by the "lack of redundancy" in the underlying main truss system.

DOT inspectors examined the bridge in 2005 and 2006, noting numerous fatigue cracks in the main trusses, along with repairs to those elements. A 2006 report by DOT engineers said the bridge should be replaced or redecked in the longer term, but recommended only annual inspection and minor repairs in the shorter term.

Meanwhile, DOT hired URS in 2003 to carry out an in-depth structural evaluation of the bridge. Last July, URS offered DOT three "equally viable retrofit approaches": install steel plate on all 52 fracture-critical truss girders, a "relatively high-cost" option; conduct annual girder inspections to spot developing problems, the "most cost-efficient" choice; or a combination of the two.

DOT opted for the inspection route, in part because of concerns that steel plating would require drilling holes in the beams, potentially weakening them further, a DOT spokeswoman said.

Minnesota state agencies' property and liability risks are insured by the state's Risk Management Fund, a self-insurance program. Phillip Blue, director the government's St. Paul-based Risk Management Division, could not be reached on how the fund would respond to tort claims from the collapse.

Minnesota's immunity statute, though, bars claims for losses resulting from the state's performance of any "discretionary duty." Courts have previously held that road repairs and signage are immune discretionary functions, Mr. Allyn said.

Plaintiffs' lawyers, however, will likely try to get around the statute by arguing that bridge inspection and maintenance are not discretionary, Mr. Potter said.

Should plaintiffs win on the immunity issue, they would run into the state's damage caps, which also bar punitive awards against the state.

Mr. Potter speculated that the terrible circumstances of the disaster could create pressure on the government to waive the caps. The Minnesota Legislature could also create a special victims' fund, similar to the federal fund created after the Sept. 11, 2001, terror attacks, Mr. Allyn added.

Contractors and consultants who worked on the bridge in the past 10 years also are possible litigation targets, though the statute of repose would probably shield companies that had done work prior to 1997 and include those originally involved in the bridge's construction, lawyers say.

Progressive Contractors Inc. of St. Michael, Minn., had an 18-person road resurfacing crew on the bridge when it collapsed. As of Friday, one worker was still missing, three were hospitalized and the others were treated at the scene, according to Progressive Contractors.

Representatives of the DOT and Progressive last week dismissed any connection between the road work and the collapse.

"All indications are that the work PCI was doing had nothing to do with the collapse of the bridge," said David Lillehaug, a lawyer for Progressive Contractors with the Minneapolis firm of Fredrikson & Byron P.C.