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