Minnesota driver fights for safer guardrails after losing leg

- Nearly six years ago, doctors had to amputate a woman’s leg after a guardrail along 35W penetrated her car and ripped through her leg — instead of buckling as it is designed to do. The victim’s attorneys blame the problem on improper installation, and in a new lawsuit, argue the problem is not fixed and puts Minnesota motorists at risk.

“I could see blood all over my hands and I knew something was wrong”

On Dec. 28, 2009, Kate Ross was driving and tired. She was working three jobs, had finals coming up, and experienced computer problems the night before. She also had a few drinks.

“The next thing I remember, I woke up and was trapped in my car,” Ross told Fox 9. “I went to unbuckle my seat belt, and I couldn’t get it to unbuckle. In that moment is when I touched my right leg, and I could feel a variety of things. But the biggest thing I could feel was warm wetness, and then when I looked at my hands and brought them to my face, I could see blood all over my hands and I knew something was wrong.”

According to the accident report, 30 to 40 feet of guardrail passed through the front of the car, through part of Kate’s leg, and ripped through the back of the Chevy Malibu. Surgeons amputated Kate’s leg that Christmas.

Kate also received a $6,794 bill from MnDOT to replace the guardrail; she paid it. Kate would undergo 19 surgeries. She would re-learn to walk with a prosthetic. And she would plead guilty to careless driving. Kate told Fox 9 that she has accepted what happened to her, but only recently started “dealing with it” and trying to understand why the guardrail impaled her car.

“A death trap waiting to happen"

In a lawsuit filed Thursday, Kate’s attorneys argue a bolt connecting a post to a beam caused the guardrail to malfunction, impaling Kate’s car. According to the lawsuit, “no bolts should be drilled through the beam” in the first six posts, but the company that installed the guardrail that injured Kate “placed bolts between the guardrail end and the first six posts.” Moreover, the attorneys say there are other “ELT” model guardrails that “have the same improper installation and continue to pose a risk to all Minnesota drivers and passengers.”

Kate’s attorneys brought Fox 9 to a guardrail across the highway from Kate’s accident six years ago on 35W near 694. The attorneys pointed to a bolt they contend should not be in the guardrail.

“Anyone who runs through this end guard rail today, where we’re sitting, runs a huge risk of being killed or losing a limb,” Alain Baudry, an attorney at Ross Ornstein & Baudry, representing Kate, told Fox 9.

“The accident was a death trap waiting to happen,” Lee Hutton, an attorney at Zelle Hoffman, representing Kate, told Fox 9. “We don’t know the exact number. But what we do know is to this day as we sit, there are negligently installed ELT guardrail systems all along highway 35W.”

Attorneys at the law firms of Zelle Hoffman and Ross Ornstein and Baudry are suing the Minnesota Department of Transportation, Trinity Industries, the manufacturer, and Hardrives, the company that installed the guardrail. In addition to arguing the guardrail was installed improperly, the attorneys also contend the guardrail did not meet federal standards.

The suit asks for both damages and for MnDOT to fix or replace faulty guardrails in what the suit calls the “Kate Ross Initiative Project.” 

“I think the biggest thing for me in all of this is I just don’t want anyone else to experience what I have. I don’t want somebody else — a 20 year old, or a mother, or a child — to go through such a heart wrenching experience,” Kate told Fox 9.

The lawsuit defendants

MnDOT declined to comment on the lawsuit, citing the active litigation. The agency also declined to answer a list of questions submitted by Fox 9.

A spokesperson for Trinity Industries sent a statement to Fox 9: “At this time, it would not be appropriate to comment on this specific litigation.” The spokesperson also referred Fox 9 to a website with information about a newer guardrail model called ET-Plus that has faced accusations of problems that could lead to it impaling cars. MnDOT suspended installation of the ET-Plus guardrails, but there are 1500 already on state roads.

Hardrives, the company that installed the guardrail in Kate’s accident, did not return calls seeking a comment.

Mystery hero?

Kate is also looking for the man she believes saved her life. According to Kate, more than half a dozen drivers went by her accident without stopping. But a man pulled up, called 911, and kept her talking until emergency crews arrived. Kate hopes to one day meet the mystery hero and thank him.

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