Nebraska Watchdog has learned the State of Nebraska is ready to pay up and pay up big following a brutal accident that has raised one key question: what did the Nebraska Department of Roads know and when did it know it?

First the pay out: A  judge in Cass County, Nebraska has approved a $1.5 million settlement between the State of Nebraska and 52-year-old Tom Wolfe of Ashland, Nebraska. Wolfe’s attorney tells Nebraska Watchdog that because the settlement is over $50,000 it must still be approved by the Nebraska Legislature.

According to interviews and accident reports in October, 2007 Wolfe was driving along Interstate 80 near his home when a five pound piece of metal and concrete smashed through his windshield and then through his head. Wolfe says it almost killed him, “It was touch and go for a while there.” After two major operations, one that left a plate in his head along with 30 stitches, Wolfe is out of work and believes his life will never be the same.

In 2008 he talked about his accident in an interview with KMTV.

At first Wolfe had no idea what hit him but it turned out to be a snowplowable pavement marker, a reflector that is embedded in the road. The reflectors light up the highways at night and were designed to make driving safer. In 2007 there were thousands of snowplowable markers across Interstate 80 in Nebraska.

After his accident Wolfe wondered why the marker that hit him came loose. He also wondered if the markers were safe. ”If they’re going to be in there they better make them stay in there,” said Wolfe.

Which brings up the question, what did the State know about the markers and when?

Even before Wolfe’s accident two neighboring states, Iowa and Missouri were removing most if not all of their markers. A spokesperson for the Iowa Department of Transportation, Dena Gray-Fischer said, “We actually did a demonstration and tested them many years ago now, and they proved unreliable.” According to state records in Missouri, the markers caused at least eight accidents; one young girl riding in a car was hit in the head.

In early 2008, Nebraska Attorney General Jon Bruning was opposed to settling the case, indicating the State would not pay Wolfe a dime. According to Bruning the accident was from a “spot defect”. Bruning insisted the state had “no report that any markers were loosened, missing, or dislodged.”

But in records obtained following a request for information under the State of Nebraska’s Public Records Law, the Roads Department tells a different story. According to the State’s own information in 2005 a Grand Island, Nebraska man filed a claim contending that his car was hit by a snowplowable marker. That claim was filed over two years before Wolfe’s accident.

Told of the 2005 case Wolfe’s attorney, Jim Schaefer of Omaha said, “”They (Nebraska Department of Roads) know they have a problem.” Schaefer added, ”There’s no inspection program to correct it and I think that’s evidence of negligence.”

Following Wolfe’s accident the State began removing the snowplowable markers from Interstate 80. According to an e-mail from the Roads Department by the end of 2009 over 53,000 markers were due to be removed at cost of $1,467,000.

Add in Tom Wolfe’s settlement and the problem markers have cost the state, Nebraska taxpayers, nearly $3,000,000.

According to a spokesperson for the Roads Department the snowplowable markers were a ”supplementary lane marking device” and with the markers gone the Roads Departments relies on other reflective items to keep drivers and their passengers safe.

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Reported by Joe Jordan, joe@nebraskawatchdog.org