February 2005

Anti-icers: Is It Time for Courts to Recognize Municipalities’ Use of Anti-icers for Roadway Ice Control?

by Keith L. Kessler

Anti-icers, principally liquid calcium, magnesium, and sodium chlorides, have, since the early 1990s, been routinely sprayed on roadway surfaces prior to a freeze to prevent ice from forming and bonding with the asphalt or concrete surface.1

The State of the Art
According to the Federal Highway Administration, anti-icers have been found to be effective in roadway ice control:

Anti-icing is a very relevant tool used to fight ice formation due to frost, freezing rain, snow, and ice storm conditions. This tool has been used by maintenance workers in 15 States for the last 4 years [since 1992]. Most of them have found anti-icing methods to be very successful.
. . .
Anti-icing is the snow and ice control practice of preventing the formation and development of snow and ice by timely application of a freezing point depressant. It provides a maintenance manager with two major capabilities: the capability for maintaining roads in the best conditions possible during a winter storm, and the capability to do so in an efficient manner. As a consequence, anti-icing has the potential to provide the benefit of increased traffic safety at a lower cost.

Federal Highway Administration, Manual of Practice for an Effective Anti-Icing Program (June 1996) (emphasis in original).

In fact, the Washington State Department of Transportation directs its winter maintenance personnel to “have accurate weather information,” and apply anti-icers “before a . . . freezing event occurs.” WSDOT Snow and Ice Control – Operators Handbook. According to WSDOT, monitoring forecasts and actual weather conditions enables its road maintenance personnel to “estimate the onset of road surface ice. With this information maintenance crews can apply anti-icing treatments just before a storm or ice condition hits.” WSDOT Maintenance Manual (M51-01) (March 2002).

WSDOT in fact touts the effectiveness of its anti-icer program:

Washington State, just as the majority of other States experiencing winter driving conditions, has applied chemicals to its highways to prevent or reduce slickness due to ice and snow . . . with favorable results.2

Anti-icing plays an integral role in proactive winter roadway maintenance, beginning with the monitoring of weather forecasts for freezing conditions combined with precipitation. The result of this combination of weather conditions is virtually always ice on the road surface. An icy road surface is universally considered dangerous for drivers.

As can occur, the law hasn’t kept up with science or actual practice in the area of winter roadway maintenance. Decades of case law, condensed into WPI 140.01, broadly require that the state of Washington and its municipalities keep our roads in a reasonably safe condition for ordinary travel.3 The problem is that a number of courts feel bound to blindly treat as binding precedent a handful of old ice and snow cases that pre-date the now common use of anti-icers. Contrary to our current proactive approach to controlling ice and snow on road surfaces, this handful of old cases is used to excuse inaction under the now outmoded reactive methodology, where no one paid a lot of attention to weather forecasts, roads became icy, cars crashed, and only then did roadway maintenance crews begin to show up to start sanding the ice.

Those outdated cases, some from 50 years ago, provided essentially that a municipality had to have notice of ice on the roadway surface before it had to address the hazard. The cases further granted governmental entities a “reasonable amount of time” following notice of the icy roadway condition to apply sand.4

As discussed below, the application of sand is and has been disfavored both because sand is blown off the roadway surface by vehicle tires and quickly becomes ineffective, and because it costs municipalities time and money for numerous repeat applications and clean-up. By contrast, liquid anti-icers are ultimately diluted and removed by precipitation, or the water evaporates out, leaving a residue of de-icer chemical in the texture of the roadway surface for the next freezing event.

As with advances in medicine over the past 50 years in preventing disease and illness, roadway maintenance has achieved remarkable success in preventing the formation of ice on our roads. There is no longer any reason to use a reactive standard for liability now that roadway agencies actively subscribe to the proactive means of preventing ice. There were no MRIs or CT scans 50 years ago, but that is obviously the state of the art in medicine today. There were no liquid anti-icers being sprayed on our roads 50 years ago, but that is the state of the art today, and actually has been for several years.

A History and Science of the Use of Anti-Icers in Winter Roadway Maintenance

Anti-icing processes have been in use since well before the 1990s. From the time that chemicals were first used for ice and snow control, maintenance crews recognized that early application of salt-based chemicals made the removal of ice and snow easier, and in some cases, prevented the formation of bonded ice altogether. A roadway surface with an anti-icer application is no different from a roadway surface in the rain, with a reasonably safe co-efficient of friction in the .5-.7 range.

The 1930s. The use of straight granular sodium chloride was pioneered by the New Hampshire State Highway Department on an experimental basis in 1938. LeRoy F. Johnson, New Hampshire’s maintenance engineer from 1933 to 1961, devised the direct windrow application method using granular sodium chloride on the New Hampshire state highway system. It became the standard operating procedure in New Hampshire in the winter of 1940-1941. This was a form of anti-icing, as the windrow was typically placed on the centerline of the roadway surface. As the salt took on moisture and formed a brine, the brine would run from the crown of the road to the edges on both sides of the centerline. Except in those cases where the rate of snowfall surpassed the melting rate of the sodium chloride, the roadway was kept bare and wet.

The 1940s. In November of 1948, the Highway Research Board (now the Transportation Research Board) published a second revision to the original Wartime Road Problems Bulletin No. 9 in its Current Road Problems series, entitled “Recommended Practice for Snow Removal and Treatment of Icy Pavements.” The government report recognized the “Application of Chloride without Abrasives” as a “method of ice prevention now being used” where dry chloride was applied directly to the road surface, “prevent[ing] the formation of ice.”

The 1950s. The third revision (No. 9-3R) of January 1954 reported that “[a] method of prevention now being used in many states is the application of -sodium chloride or calcium chloride, or a mixture of these chlorides, directly to the pavement surface . . . . Highways or streets carrying large volumes of traffic should be treated as soon as possible if it appears that snow will compact and adhere to the pavement . . . . The use of sodium chloride of the coarse commercial size at the beginning of a storm prevents the snow from compacting and adhering to the pavement.”

The 1960s. The fourth revision (No.9-4R) of August 1962 re-affirmed that “[an] established winter maintenance goal in most primary routes and an increasing number of secondary and local roads is often referred to as bare pavement maintenance . . . . The usual procedure is to apply chemicals as soon as there is a definite indication of snow sticking to the pavement or of the formation of ice. In some cases, it is practical to make this application slightly ahead of the actual storm to prevent the development of a slippery condition.”

The 1970s. In 1970, Iowa Maintenance Engineer Foster Smiley reported to the American Association of State Highway Officials (AASHO) on the effective use of pre-wetting granular sodium chloride with liquid sodium chloride, to create a liquid anti-icer/de-icer.

The 1980s. The 1980s saw further development in new anti-icing materials and application equipment. In 1988 the Strategic Highway Research Program (SHRP) focused on seven technology areas, including Anti-Icing.

The 1990s. In the 1990s, the SRHP research focused on anti-icing programs.5 As part of the SHRP research, nine state highway agencies conducted anti-icing activities during the 1991-1992 and 1992-1993 winters. The nine states were California, Colorado, Maryland, Minnesota, Missouri, Nevada, New York, Ohio, and Washington. The SHRP results demonstrated the effectiveness of anti-icer usage. The Federal Highway Administration (FHWA) published the “Manual of Practice for an Effective Anti-Icing Program.” The FHWA determined that the anti-icing process was so promising that it developed a nationwide Ice Warriors program. This program provided crew chiefs and others in the front line of highway maintenance with hands-on training and technical support on anti-icing strategies. The team was created in 1995, at the close of the FHWA program on testing and evaluating anti-icing techniques. In 1996, the American Association of State and Highway Transportation Officials (AASHTO) established the Lead States Team for anti-icing. This team consisted of seven states that were considered to be ahead of the pack in implementing anti-icing techniques. The state of Washington was a member of that Lead States Team.

The State of the Law

Our case law reflects none of these decades of anti-icer usage, nor even our actual practice in the state of Washington over the past 15 years. As a result, our case law is out of touch.

Until recently, even our Washington Pattern Jury Instructions erroneously said that one had to be fault-free to hold a governmental entity liable for a hazardous roadway. This was corrected by the Court of Appeals in  Keller v. City of Spokane, 104 Wn. App. 545, 17 P.3d 661 (2001), affirmed, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). In Keller, the court held that the language in WPI 140.01 requiring that plaintiffs be fault-free not only improperly allowed the jury to determine the duty of a government entity based on the plaintiff’s conduct, but ignored the -already well-established duty to keep roads reasonably safe for ordinary travel:

[T]he City stretches the reasoning of Hansen to support its contention that the purpose of WPI 140.01 is to limit the City’s duty of ordinary care to persons “exercising due care.” This is wrong.

The City cites numerous decisions from Washington and other jurisdictions that facially exonerate municipalities from any duty to negligent plaintiffs in street maintenance actions. But these holdings are generally explicitly or implicitly predicated on one of two premises. In most cases the street was in fact safe for ordinary travel by reasonably prudent persons. [Citations omitted.] Where an unsafe condition was found, the municipality’s negligence was not a proximate cause of the injury. [Citations omitted.]

Conversely, in those cases in which the municipality failed to take ordinary measures to provide reasonable safety, the plaintiff prevailed, regardless of his or her own fault. [Citations omitted.].

Here, the first paragraph of Instruction No. 13 (WPI 140.01) erroneously left it to the jury to decide the legal question of the City’s primary duty owed to the plaintiff.

Keller at 554-56. The Court of Appeals held that the language of WPI 140.01 erroneously conveyed to the jury that if there were any contributory fault on the part of the plaintiff, then the City did not owe the plaintiff any duty. Keller at 557-58.

In affirming the Court of Appeals, the Washington State Supreme Court acknowledged that the provisions of Chapter 4.22 RCW clearly provide that a plaintiff can be partially at fault, and the municipality responsible for an unsafe road will still be liable for its share of fault arising out of a bad roadway design or bad maintenance:

[I]nterpreting our cases as a whole, the language used in Berglund and other decisions by this court does not limit the scope of a municipality’s duty to only those using the roads and highways in a nonnegligent manner . . . .
.  .  .
We therefore hold that a municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel.

Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002).

But our appellate courts still lag in enforcing that fundamental rule where people are injured or killed because of an icy road surface. For example, LeRoy v. State, ____ Wn. App.__, 98 P.3d 819 (2004), very recently reiterated outdated case law. The opinion certainly did not warrant publication as it was merely an anachronistic re-hashing of the purely reactive approach to winter road maintenance no longer followed by municipal road maintenance shops. Current practice and industry standards render LeRoy irrelevant.

And, of course, the Washington State Supreme Court’s overriding holding in Keller — that our roads must be maintained in a reasonably safe condition — trumps any deviation by lower courts, including the LeRoy court, to the extent that it purports to elevate excuses for operating an unsafe road above the Supreme Court’s requirement that roads be maintained in a reasonably safe condition.

Consistent with this fundamental duty requiring reasonably safe roads, trial courts are now rejecting the blind approach of the old, reactive cases that ignore actual proactive winter roadway maintenance practices that are and have been in place for some time. For example, the trial courts in Morehouse v. Washington State Department of Transportation (Spokane County Superior Court)6 and Cooper v. City of Richland (Benton County Superior Court)7 both recently ruled that the duty to keep our roads in a reasonably safe condition during winter months includes addressing a foreseeably dangerous condition8 such as the formation of ice on the roadway where precipitation (including fog) and freezing conditions are forecast:

In LeRoy, however, there was no reference to fog in the weather report. The evidence in Morehouse establishes that the weather report not only advised the State Maintenance Localities of the temperature range, but that that fog would be forming late in the evening prior to the accident, and deposition testimony confirmed that those conditions create black ice especially on bridges. The State’s program of de-icing and anti-icing are in place and are used.

Taking the LeRoy decision to its extreme would mean that the State never has an obligation to use its anti-icing process because by its nature it is done before the actual ice forms — it’s a preventive measure. If the State only had to act after they have actual notice the ice is there, they never would have a duty to use the anti-icing process. The LeRoy court references Niebarger v. Seattle, 53 Wn.2d 228, and that court acknowledged that constructive notice may be inferred from the time the dangerous condition was permitted to continue to a point where the dangerous condition should have been known. The question is, I guess, is a known likelihood of a dangerous condition sufficient notice to require state response? In my mind the important distinction is that with snow you cannot do anything about it until it is there to either shovel, plow or sand. Ice, however, can be prevented in some circumstances.

A dangerous condition can be one where it is known that black ice will more likely than not be forming at a certain place and at a reasonably certain time.

Morehouse (Judge Jerome J. Leveque, 11/3/04) (italics by the court).

Similarly, in the Cooper case, the City of Richland in effect asked the trial court to ignore the Public Works Department’s practice of using anti-icers. It also wanted the court to ignore its failure to apply any anti-icer prior to the morning of a fatal collision on an icy bridge because no one in Public Works was on duty during the Christmas holidays. The City asserted that, notwithstanding the forecast of fog and freezing conditions, because its off-duty Street Division employees were unaware of the ice on the bridge until after the collision, it lacked notice and a reasonable opportunity to correct the hazardous condition. On this basis, it argued that it did not breach its duty to keep the roads and bridges reasonably safe. The trial court disagreed:

Now that, if there was any doubt remaining in Wright versus City of Kennewick, seems to me to have been even more clearly manifest in the third case, Bird versus Walton. The City it seems to me in its brief mischaracterizes the holding in Bird versus Walton. The court in the Walton case cites the City’s general duty to maintain roads in a reasonably safe condition, and that’s clearly the law, and that is a responsibility that the City tends to not speak of.

Cooper (Judge Dennis D. Yule, 8/25/04).

The trial court ruled that the real issues were the adequacy of the notice to the city that was provided by the weather forecast, in terms of the foreseeability of the ice, and whether the city should therefore have applied its anti-icer on the bridge surface prior to the freeze.

The fact is that the Washington State Department of Transportation has a meteorologist as part of its proactive winter maintenance program. Regional WSDOT maintenance shops have the ability to monitor weather forecasts that predict precipitation and freezing temperatures. Over the course of the past several years, municipal public works agencies across the state have acknowledged that same duty to pay attention to weather forecasts as part of their proactive programs. Not only do virtually all public works agencies have access to local weather forecasts by means of the Internet, television, and newspapers, but anyone can purchase a hand-held weather forecast radio for $25. There’s no excuse for failing to heed weather warnings, nor any excuse for failing to get the maintenance trucks out spraying anti-icer on the roadway surface before the arrival of the expected precipitation at freezing temperatures.

The Consequences of Inaction

Car and truck tires traveling on an icy road surface often lose traction. With a loss of traction comes a loss of control of the vehicle. Out-of-control cars on icy roads frequently end up crossing the centerline and colliding head-on with oncoming vehicles. Head-on collisions virtually always result in severe injuries and sometimes death.

Municipalities of course know these consequences, and must be held to a standard of care that takes into account the warnings from weather forecasters, and the duty to use their anti-icers when they are warned of incoming precipitation and freezing temperatures. Their charge is to keep the roadways in a reasonably safe condition. A roadway surface with an anti-icer application is no different from a roadway surface in the rain. That is a reasonably safe roadway surface, and meets the duty set by law.

There is no longer an excuse for allowing municipalities to hide behind an outdated reactive approach to roadway safety. The LeRoy opinion has perhaps inadvertently encouraged negligent municipalities to put their heads in the sand. Unfortunately, it rewarded bad behavior. Drivers and their families deserve better.

_____________________________

Keith L. Kessler is a partner with the law firm of Stritmatter Kessler Whelan Withey Coluccio, with offices in Hoquiam and Seattle.

NOTES

1 Anti-icer brands commonly used by municipalities across the United States include FreezGard, FreezeGard Zero, Icestop CI, Liquidow, RoadGuard, and Calcium Magnesium Acetate.

2 Declaration of Jennene Ring, P. E. at 3-4, Janssen v. Corbett, Chelan County Superior Court Cause No. 03-2-00716-6. Ms. Ring is the Regional Traffic/Maintenance Engineer for the North Central Region of WSDOT. Department of Transportation spokesperson Jeff Adamson confirms that the WSDOT anti-icer program “has reduced accidents.” The Wenatchee World, November 30, 2004. For a current report on the effectiveness of WSDOT’s anti-icer program, visit its website at www.wsdot.wa.gov/winter/anti.htm.

3  WPI 140.01 provides:

The [county] [city] [town] [state] has a duty to exercise ordinary care in the [design] [construction] [maintenance] [repair] of its public [roads] [streets] [sidewalks] to keep them in a reasonably safe condition for ordinary travel.

4 See, e.g., Wright v. Kennewick, 62 Wn.2d 163, 381 P.2d 620 (1963).

5 An integral part of the program was the introduction of the Road Weather Information Systems involving a range of weather technologies, from meteorological sensors to gather weather information, to roadway sensors to collect pavement condition information, to thermographic road analyses to develop temperature profiles of road networks.

6 Spokane County Superior Court Cause No. 2003-02-00043-9.

7 Benton County Superior Court Cause No. 03-2-02089-1.

8 As long ago as 1940, the Washington State Supreme Court made clear the duty on the part of the municipality responsible for a road to keep it in a reasonably safe condition, taking into account foreseeable dangerous conditions. Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 355 (1940).

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