The Volokh Conspiracy

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Volokh Conspiracy

No Lawsuits for Negligent Lobbying

A woman is injured in a car accident supposedly because of bad roadway design decision (a dangerous cut in the median) -- so she sues business that had lobbied county to make that decision.


From today's Florida Court of Appeals decision in Sewell v. Racetrac Petroleum, Inc.:

Crystal Sewell lost control of her vehicle and hit a palm tree after her car was allegedly cut off by an unknown vehicle that took a left-hand turn from a gas station and abruptly joined the lane of traffic in which Sewell was traveling. In doing so, the unknown vehicle traveled through a cut in the concrete median provided for traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned, developed, and operated the gas station, in large part because Racetrac created a dangerous condition when it lobbied the local county government to create the cut in the median to promote access to its property….

In 1977, Racetrac agreed to purchase the property only if the governing agencies approved the cut in the median. In obtaining approval from Miami-Dade County, Racetrac submitted one traffic study that used the Institute of Transportation Engineers Trip Generation category for "Convenience Market with Gas Pumps." Sewell alleges that "there were other categories … that would have been more applicable to Racetrac." Racetrac also submitted another traffic study that should have been based on a different set of its existing stores. Sewell further alleges that Racetrac, through "bribery and corruption," obtained the support of its application from City of Homestead officials, although, as the complaint admits, "city officials don't get to decide whether the median gets removed or not (county officials do)." …

[T]he decision of whether or not to improve roadways or upgrade traffic control devices often pits the interests of some users of the roads against the interest of others. For example, businesses and commuters may want traffic control devices that speed up and facilitate the flow of traffic. Neighborhood groups, on the other hand, may want traffic control devices that slow or divert traffic. The process for making these decisions involves the quasi-political balancing of the competing and conflicting needs of different parts of the community with the limited resources available. For this reason, the law recognizes that these matters involve the "judgmental, planning-level decisions" by the political branches of government "which are not actionable."

By petitioning Miami-Dade County to obtain the cut in the median, Racetrac entered into this planning process. As a participant in this process, Racetrac could advocate freely—even fiercely—for its own interests. Racetrac did not have a relationship with Sewell (or others like her) that would create in Racetrac a legal duty to tailor its petition to protect Sewell and other competing road users.

At best, Sewell alleged Racetrac submitted expert traffic studies that were extremely one-sided and unprofessionally skewed to support its application to have the median cut. Such allegations, without more, are not actionable. This is not a case in which Sewell alleges Racetrac petitioned the government for the primary purpose of intentionally or maliciously harming Sewell or others like her. For this reason, Racetrac's application to have the median cut, whether riddled with misrepresentations or not, constituted "the statements of a citizen to a political authority regarding matters of public concern" shielded by a "qualified privilege" that has "existed in the law of Florida for many generations and [has] served to provide broad protection for freedom of speech."

At some point, Sewell's main theory may well run afoul of the body of law that grants immunity under the First Amendment to those petitioning government, whether or not their motives are self-seeking or even unethical…. "The NoerrPennington doctrine grants First Amendment immunity to those who engage in petitioning activity." …

As a practical matter, to recognize Sewell's main legal theory would mean, for example, that homeowners could be sued for false statements "negligently" made as part of a petition for specific traffic control or traffic calming devices like speed bumps or traffic circles which make roadways safer for some users but potentially more dangerous for others. When the risks of unintended consequences are fully weighed, this case presents an instance where … it would be "unwise for the judiciary to expand causes of action to reach conduct clearly beyond the scope historically recognized by law." …

[We therefore] hold that a person who petitions the government for a road improvement outside of his or her property has no legal duty to guard against the government making a decision that will create an allegedly unreasonably dangerous road condition.

Sounds right to me.

The majority allowed Sewell to go forward, though, with a different theory:

Sewell's second theory of liability concerns Racetrac's duty to manage signs and pavement markings on its own property to protect its customers and the public from the danger of cars exiting the property by turning left and using the existing cut in the median to go eastbound on Northeast 8th Street. The complaint alleges that Racetrac knew or should have known that its conduct in this regard presented an unreasonable danger. This theory is viable under the existing case law recognized in [past precedents] (holding that an owner can be liable if negligent design of its parking lot and placement of a stop sign caused accident with passing motorist). An owner can be liable for actions it takes or fails to take on its own property that cause vehicles to exit in a manner that the owner knew or should have known creates an unreasonable danger to vehicles on the adjacent roadway.

There are also a couple of fairly detailed concurring-and-dissenting opinions, which you can read here.