Tort Liability Defense Practices for Design Flexibility (2012)

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Legal Research Digest 57 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM March 2012 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES TORT LIABILITY DEFENSE PRACTICES FOR DESIGN FLEXIBILITY This report was prepared under NCHRP Project 20-6, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Terri L. Parker, Esq. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRP’s practice of keeping departments up-to-date on laws that will affect their operations. Applications In response to community and developmental demand, many state transportation agencies have modified their design policies to specifically require staff to consider historical, environmental, and other context-related el- ements during the design process rather than merely focusing on following “generally accepted” standards. This methodology allows the agency to give equal weight to aspects of the design of the road such as aesthetics, safety, and community concerns relating to parking and economics. The NCHRP Legal Studies Committee realizes that there have been few if any tort liability cases brought on the grounds of what has been termed “flexible de- sign” or “practical design” and encouraged through the principles of Context Sensitive Solutions (CSS). There is the lingering belief that the threat of tort claims con- tinues in a number of states and that is having a damp- ening effect on designers’ willingness to tailor designs to suit projects’ unique contexts rather than designing projects that follow standard templates. This research, which focuses on tort liability de- fense practices and cases involving the exercise of discretion in design, will hopefully provide a frame- work for determining successful strategies employed when defending design decisions made following the principles of CSS. This digest explores the concept of discretion as a defense to government tort liability, and defending these actions based on the designers’ and policy-makers’ discretion may be described by terms such as governmental immunity, official immunity, de- sign immunity, or policy immunity. The existing law is relevant to analysis of tort legal defenses available to protect the decisions inherent in CSS. Many depart- ments of transportation have adopted CSS principles or related concepts such as Practical Design to encour- age flexibility in design decision-making. The digest’s processes for documenting design decisions, articulat- ing clearly the various factors considered in making a decision with a focus on decisions that involve design exceptions, should be of great help to attorneys, admin- istrators, information officers, document retention of- ficials, risk managers, planners, designers, and others responsible for such decisions.