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(Al Hartmann | The Salt Lake Tribune) Local folks and road contractors check out a 25-foot-deep 40 foot wide hole on Highway 35 about 3 miles south of Tabiona in July 2011. A sudden hail storm brought debris down a dry wash, clogging a culvert below the road and undermining the soil beneath the road causing it to wash out.
Judge: UDOT immune from wrongful-death lawsuit
Courts » Parents sued after Tabiona girl died when vehicle drove into hole on SR 35 in 2011.
First Published Mar 29 2013 11:19 am • Last Updated Mar 31 2013 03:07 pm

A judge has ruled that the Utah Department of Transportation is immune from a lawsuit filed by Duchesne County parents over the wrongful death of their daughter.

The parents of Justine Barneck sued UDOT after the 15-year-old Tabiona girl died from injuries in a crash in 2011. Water had opened a chasm in State Road 35, and the girl and her father drove into it. But on Thursday, an 8th District Court judge determined that her fatal injuries were tied to the management of floodwaters and the operation of a storm system, and both such "events" are immune from litigation.

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"If the injuries arise out of either of those events then the state is immune, any government agency is immune. That’s all what the [Utah Governmental] Immunity Act is about," said state attorney Reed Stringham III. The act releases government agencies from liability.

David Bennion, who represents the Barnecks, said he was disappointed with the judge’s decision. He added that he plans to take a few days to talk to his clients and weigh whether to appeal the case.

Shortly before midnight on July 13, 2011, Michael Barneck and Justine were driving west on SR 35, unaware the road had collapsed about 11:45 p.m. The chasm was more than 20 feet deep and 30 feet wide and was caused by water that had backed up where the creek bed passes under SR 35 near Tabiona, the lawsuit states.

Their Ford Excursion struck a piece of asphalt that had been pushed up where the road had given way. The velocity of the Excursion carried it over the hole, and it crashed on the far side, the Utah Highway Patrol reported the night of the accident. Justine was killed, and Michael Barneck suffered serious injuries, the lawsuit states.

The lawsuit says earlier that day, UDOT employees worked in the area where a blocked culvert had caused a temporary lake about 20 feet deep on the north side of SR 35.

"Despite the failure to remedy the situation, UDOT’s agents and employees discontinued working at the site of the blockage and temporary lake sometime in the afternoon or evening of July 13, 2011."

UDOT did not leave an employee to monitor the situation and/or warn drivers of the dangerous conditions created by the water and saturated fill, the family claims. The lawsuit claims the agency was negligent in not posting warnings of any kind or putting lighting in the area.

"UDOT knew or should have known that the buildup of water next to SR 35, and the associated saturation of the underlying fill, created a risk that the road would collapse," the lawsuit states.

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Another vehicle had already driven into the hole from the opposite direction that same night, court documents say. That driver also suffered serious injuries.

The Barnecks sought an unspecified amount of damages, but they believed the total would exceed $1 million.

Also listed as a defendant in the lawsuit was the state of Utah.


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