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Tort Liability Defense Practices for Design Flexibility (2012)

Chapter: IV. DESIGN DOCUMENTATION CURRENT PRACTICES

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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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Suggested Citation:"IV. DESIGN DOCUMENTATION CURRENT PRACTICES ." National Academies of Sciences, Engineering, and Medicine. 2012. Tort Liability Defense Practices for Design Flexibility. Washington, DC: The National Academies Press. doi: 10.17226/14656.
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16 tion for the design of the road. The defense has to be able to articulate the basis for the selection of the par- ticular design and explain why the selected design was the best one for the traveling public. If the state has a policy that includes the incorporation of the balancing factors as part of the design process, that policy should be reviewed and a defense formulated based on the pol- icy in effect at the time the road was designed or up- graded. Because the road may have been designed years or decades previously, the attorney’s best friend will be documentation of the decisions made at the time the road was improved. Counsel should be able to present evidence that factors such as safety, environmental im- pact, and cost were all reviewed and considered prior to choosing a particular design. Careful consideration of alternative designs and mitigating strategies should be shown if possible. Affidavits by an expert or deposition testimony from an expert must be used to support the defense of the case in a motion for summary judgment. If a motion for summary judgment is unsuccessful, the case will be defended to a jury or arbitration panel and the experts will be asked to defend their conclusions again. The best expert witness may be a staff engineer, an outside expert, or a combination of both. If it is not possible to show documentation of the engineering deci- sion or provide testimony regarding what decisions were made and why, a possible solution is to have a safety study or accident analysis study of “before” and “after” the changes to the road to show that the safety was indeed increased after the road improvements. Create a trial preparation timeline. One of the best ways to make sure that an important aspect of the trial is not missed or overlooked is to use a timeline or check- list.81 The following is an example that can be used for trial preparation.82 81 Reena M. Sandoval & Jane K. Manning, The Trial Law- yer’s Motto: Be Over-Prepared, AMERICAN BAR ASSOCIATION’S TRIAL PRACTICE 9 (2005), http://apps.americanbar.org/ Litigation/committees/trialpractice/docs/gratis_spr05_ triallawyer.pdf. 82 Id. The table is a modified version of the one that appears in the publication. Months before trial Organize pleadings/discovery documents for use at trial. Contact experts with dates of trial. Consider the use of a jury consultant. Consider bench or jury trial if option is available. 4–6 weeks before trial Review the pleadings. If still permitted, file any additional necessary pleadings. Review discovery. If permitted, supplement discovery. Formulate motions in limine. Begin preparing and serving witness subpoenas. Know the judge and courtroom conditions. Confer with opposing counsel regarding pre-trial issues; if needed, obtain assistance of court. 3–4 weeks before trial Create a trial notebook. Prepare jury instructions. Prepare exhibit folders. Prepare witness folders. Prepare exhibit binder for judge if required. Consider courtroom exhibits. 1–2 weeks before trial Discuss and finalize potential stipulations with other parties. Prepare trial briefs. Prepare witnesses for testimony and courtroom presence. Maintain contact with witnesses and prepare them for testimony. Contact court and confirm trial date. The week before trial Finalize witness preparation. Review the order of witnesses; continue preparation of witnesses. Revisit cross-examinations and opening and closing statements; rehearse. Confirm all logistical and transportation arrangements. Double-check supplies and equipment. IV. DESIGN DOCUMENTATION CURRENT PRACTICES This section includes a discussion of risk analysis, model design exception and deviation procedures, and documentation procedures and practices. Engineering staff should consider the following:

17 A. CURRENT PRACTICES FOR RISK MANAGEMENT How much risk can the state accept? The risk analy- sis83 below may be helpful initially in evaluating design options and setting up a documented file. Once the de- cision has been made to balance safety against other factors such as cost and environmental impact, it will be necessary to periodically evaluate projects and roads to determine whether the tradeoff was worth the risk taken. For instance, when the community requests that a large beautiful tree be left in place, if that tree is re- peatedly struck even though mitigation steps such as rumble strips or barriers were used, the tree may need to be removed or the protection enhanced. A system should be set up that will evaluate the mitigation strategies that were used to ensure that they are effec- tive. Periodic safety studies or accident studies could also be done to ensure adequate performance of the de- sign features. • Consider Multiple Alternatives. Thorough consid- eration of alternatives, including an explanation as to the reasons a full standard design may not be possible or desirable, and what alternatives exist, represent good risk management practices. • Evaluate and Document Design Decisions. Design reports should document the expected operational and safety performance of the proposal. Stakeholder en- gagement, including developing, evaluating, and dis- cussing different alternatives, requires documentation. All documentation can and should be readily available to place in project files for later reference. Special care should be taken where a new or creative concept is pro- posed such as a roundabout or traffic calming feature. If a design exception is needed, documentation should be complete, including a full description of the need for the exception based on adverse effects on community val- ues, the environment, and any other pertinent factors. • Maintain Control Over Design Decision-Making. The agency must stay in control of decisions regarding basic design features or elements. Active stakeholder involvement and input does not translate to abrogation of the responsibility of the agency to make fundamental design decisions. • Demonstrate a Commitment to Mitigate Safety Concerns. Where a design exception or unusual solution is proposed, plan completion should focus on mitigation. Decisions to maintain trees along the roadside, for ex- ample, may be accompanied by special efforts to deline- ate the edge line and trees, implement shoulder rumble strips, or provide a guardrail or other roadside barriers. • Monitor Design Exceptions to Improve Decision- Making. A few states make a special effort to keep a record of design exceptions by location, committing to 83 See TIMOTHY NEUMAN, MARCY SCHWARTZ, ET AL. NCHRP 480: A GUIDE TO BEST PRACTICES FOR ACHIEVING CONTEXT SENSITIVE SOLUTIONS 51 (2002), http://contextsensitive solutions.org/content/reading/nchrp-report/. review their safety performance over time. The intent is not to second-guess a decision, but to build on and im- prove a knowledge base for future decisions regarding design exceptions. B. CURRENT PRACTICES—DOCUMENTATION OF THE DESIGN ANALYSIS 1. Statutes of Limitation and Records Retention In most states, statutes of limitation do not exceed 5 years for personal injury or wrongful death claims, and the agency does not necessarily keep documentation of accident scenes or work diaries for more than the statu- tory period. When planning to defend a design claim, it is important to remember that the agency may have to defend a road or road design that has been in place years or even decades. For that reason, counsel must ensure that the agency has a records retention policy in place that ensures important design documentation is kept and accessible even though technology may change. 2. Documentation of the Deviation from Standards Process Each responding agency indicated that it had a for- mal design exception process and provided copies of or Internet links to that process. Most agencies use a let- ter format with an analysis of each pertinent part, i.e., the purpose of the project, the type of exception re- quested, the purpose of the exception, and the expected benefits of the exception. Survey Results.—Questions such as “What documen- tation process is used by the agency for documenting decisions that deviate from the generally accepted guidelines?” and “What documentation is developed while the project is being scoped and designed?” were asked in the survey. In response, most agencies at- tached forms that they used or links to a process they used, typically found in their design manuals. For ex- ample, Delaware requires an analysis of the following factors in its design documentation file: • Existing roadway characteristics. • Analysis of required versus proposed design crite- ria. • Comparison of required versus proposed cross sec- tions. • Supporting calculations/analysis. • Analysis of the effect of the project on new and pro- posed right-of-way. • Environmental effect. • Analysis of proposed mitigation steps and how the steps offset the variance. • Costs of mitigation. • The support or opposition of the public to the pro- posal. Generally, the agencies responded that their proc- esses consisted of several layers of review that must

18 occur before a variance to generally-accepted standards is presented to the chief engineer or his or her counter- part. In Connecticut, the layers of review include evaluation by the initial design squad; then review by a core team that consists of professionals from design, right-of-way, construction, and maintenance; and only then a review by a management team. In Florida, as in most states, several alternatives are considered before the agency chooses a “preferred” de- sign. The following engineering information is gathered, and an evaluation matrix is prepared for each alterna- tive: • Conceptual design plans. • Survey information. • Analysis of existing conditions. • Analysis of safety issues. • Typical sections, drainage, and floodplains. • Maintenance issues. • Estimated right-of-way and construction costs. Several comprehensive forms used by the agencies to select or document their decision-making processes are included as Appendices D (Iowa), E (Iowa), F (Dela- ware), and G (Tennessee). 3. Specific State Examples of Procedures The Georgia Department of Transportation (GDOT) uses the definitions and processes listed below when evaluating and analyzing its proposed designs.84 These definitions are helpful when defending claims for the agency because they illustrate that much thought and debate occurs before a design exception can be ap- proved. The definitions illustrate the importance of choosing the best design solution to a design problem and that the agency emphasizes the importance of en- gineers applying “engineering judgment.” • Standards: A standard is a required criteria or mandatory practice. Criteria denoted as standards have been identified by the Department as having substan- tial importance to the operational and safety perform- ance of a roadway such that special agency review and approval (Design Variance or Design Exception) will be required before deviation from the controls can be in- corporated into a design. The approval of a Design Variance from the GDOT Chief Engineer is required to document a decision to deviate from GDOT criteria that has been identified as “standard” before the design ele- ment or feature can be retained or incorporated into a project. The approval of a Design Exception from the GDOT Chief Engineer is required to document a deci- sion to deviate from AASHTO criteria that FHWA has identified as “controlling criteria” before the design element or feature can be retained or incorporated into a project. • Guidelines: Guidelines suggest normal practice with options and advisory conditions. Guidelines are 84 Survey response, Georgia DOT, May 2011. recommended practices in typical situations. Deviations from the criteria denoted as guidelines are allowed when engineering judgment or study85 indicates the deviation to be appropriate. Adequate study, justifica- tion, and documentation by the GDOT office or consult- ant responsible for the engineering are required when a deviation to a guideline is proposed. Iowa Design Manual.—Excerpts from Iowa’s design manual can be found in Appendices D and E. The sec- tions deal directly with selecting and documenting de- sign criteria. “Working Within Constraints” describes the financial constraints most state transportation agencies are currently facing. Iowa recognizes that, to do a project, the road may need to be designed using values that are below preferred design criteria simply to meet budgetary concerns. Under that scenario, seri- ous consideration is given to variables such as the type of road, the degree of variance from the recommended values, the effect of the variance on the safety and op- eration of the facility, and whether mitigating features can offset the issues that could be caused by a deviation from the design standard. Safety is clearly a high prior- ity, as the following statement is found in the policy: “[s]afety repairs should be addressed whenever possi- ble. Expecting safety repairs to be included in future resurfacing projects can lead to a steady degrading of the highway system as repairs are continually delayed.” The policy aids the agency in defending design claims because it demonstrates that safety is a high priority in the project selection and design process but also recog- nizes that real economic constraints must be considered during the design phase. These excerpts should assist the agency in explaining that it balanced the factors noted above, and the “whenever possible” language is loose enough to allow the agency to exercise its engi- neering judgment in determining when safety repairs should be addressed. Delaware Design Manual.—Excerpts from Dela- ware’s design manual can be found in Appendix F. The section instructs staff how to determine when a “depar- ture from standards” is necessary and how to document that decision effectively. The forms are used to docu- ment decisions on design criteria, but it is expected that the primary focus of the exception request should be highway safety. The documentation that is required 85 “Engineering Judgment” is defined by the MUTCD as “the evaluation of available pertinent information and the ap- plication of appropriate principles, provisions contained in this manual and other sources, for the purpose of deciding upon the applicability, design, cooperation, or installation of a traffic control device.” MUTCD 14 (2009 edition). Engineering study is defined in the 2009 MUTCD as the comprehensive analysis and evaluation of available perti- nent information, and the application of appropriate principles, provisions, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, de- sign, operation, or installation of a traffic control device. An en- gineering study shall be performed by an engineer, or by an in- dividual working under the supervision of an engineer, through the application of procedures and criteria established by an en- gineer. An engineering study shall be documented.

19 will be helpful to the agency facing a design defect alle- gation because it addresses such issues as public input, environmental effects, and cost, illustrating that the agency considered the pros and cons of each of its deci- sions prior to implementing any of them. Tennessee’s Design Exception and Justification form is included in Appendix G as an example of a form that requires multiple narrative responses that leave room for analysis of factors such as “long-term effect” of the reduced design, “difficulty obtaining the full standard,” and “safety mitigation measures considered.” Staff can then determine whether the measures taken can be justified or whether there is a true effect on the facility. Connecticut has the following procedures: The de- signer will not request an exception to controlling de- sign criteria until he or she has evaluated the impacts of providing the minimum or better design values. If these impacts are judged to be unacceptable, then the designer can initiate the exception process. The de- signer’s goal will be to identify and seek approval of design exceptions as early in the final design phase as practical. This procedure is included in this digest be- cause it illustrates a thorough process that identifies all the “balancing factors” that are considered by the agency and requires a discussion of each of those factors that are important. The following establishes the procedures the high- way designer should follow for all proposed exceptions to the department’s established design criteria: 1. The designers should present information to demon- strate the impacts of meeting the minimum or lower de- sign criteria. This can include but is not limited to: a. Construction costs, b. Environmental consequences, c. Right of way impacts, and d. Community involvement/concerns. 2. The designer should provide sufficient information to demonstrate the consequences of using a design value that does not meet the minimum criteria. Where appro- priate, this may include but is not limited to: a. Impacts on traffic serviceability (i.e., level of service), b. Impacts on safety (i.e., crash history), c. Impacts on traffic operations, and d. Impacts on future maintenance. 3. The designer should prepare a written summary of the information and submit it to the appropriate Division Manager for review. 4. The designer will then arrange a meeting through the office of the Engineering Administrator to discuss all pro- posed design exceptions. The Engineering Administrator, Division Manager, and the Project Manager and/or Engi- neer will usually attend the meeting. The FHWA will also be represented for projects that require full FHWA over- sight.86 Recommendations and lessons learned from state documentation. A lawsuit based upon an alleged “dan- gerous condition” of a roadway due to a design defect will necessarily contain allegations of the agency’s fail- ure to comply with generally-accepted standards and engineering principles. However, according to the text of the current standards and guidelines, those stan- dards and guidelines are now flexible. The books con- tain words such as “ranges” of acceptable values and “engineering judgment.” The agency that based its de- sign on flexible design principles must be able to sup- port the design by explaining that, even though recom- mended values were not necessarily achieved, the project as a whole was designed and constructed accord- ing to the values of the community and the carefully considered policy of the agency’s governing authority. It is important to document all the public input and context-related information that is gathered and used in determining the design of the road. If the agency has adopted a formal policy that requires or suggests the use of the balancing factors process, and in fact that process is used to support a decision to leave a histori- cal landmark or large tree in place or to widen lanes rather than add a lane, the basis of those decisions must be documented. That documentation in particular will be critical to the defense of a case when it is alleged that plaintiff was injured due to inadequate mitigation measures being taken by the agency. Discussion of the following topics in the project docu- mentation could be used: • What are the most important reasons for this pro- ject? • How was community input on historical, safety, mobility, and environmental aspects gathered and ad- dressed? • Will the project as designed be durable and eco- nomical to maintain? • Does the project incorporate community develop- ment plans? • How does the project address sites listed on the state or national historic register? • How was access for bicycle and pedestrian trans- portation addressed? • How was access to culturally significant sites ad- dressed? Each of the above-noted procedures is useful in de- veloping or reworking documentation processes. The policies indicate the importance of the initial public input process and the value of working with the public to determine what goals they want to achieve. Each agency has a process in place where public input is studied and the best design, based on the economic, historical, environmental, and safety factors involved. 86 http://www.ct.gov/dot/lib/dot/documents/dpublications/ highway/cover.pdf.

20 Most of the procedures specifically outline safety as being a high priority and require detailed supporting authority for safety-related deviations from standards. All the states noted particular attention to the docu- mentation of all the safety aspects of the project. Care- ful analysis of the types of accidents that occurred prior to the project is required and thoroughly documented. If the recommended values are not used in the new de- sign, the mitigation strategies that were instead em- ployed must be thoroughly documented and discussed. C. Documentation of Mitigation Strategies If a project cannot be designed to meet the full val- ues recommended in AASHTO or internal publications, designers should consider how mitigation strategies may help to reduce safety or operational problems. The following chart is included in Washington State’s Pro- ject Development Manual.87 This chart is an excellent checklist or guideline for a designer to use when evalu- ating mitigation strategies and as a beginning point for the documentation that is necessary to include in the permanent file. 87 http://www.wsdot.wa.gov/publications/fulltext/ projectdev/Deviations/DeviationMitigation.pdf.

21 Deviation Mitigation Options for Designers Design Criteria Mitigation Measures Available Comments Horizontal Alignment Post Warning Signs Post Speed Advisory Install Chevrons Flatten Roadside Slopes Improve Horizontal Sight Lines Improve Clear Zone Area Improve Superelevation Install Illumination Widen Shoulders/Pavement Consistency of mitigation choices through significant lengths of corridors is encouraged in order to avoid confusing drivers. Lane Width Post Warning Signs or Speed Advisory Improve Delineation Install Raised Pavement Markings Restrict Vehicle Size if Appropriate Restrict Traffic if Appropriate Permanent lanes on the Interstate system must meet or exceed 11’ minimum width to comply with FHWA criteria. Shoulder Width Flatten Roadside Slopes Improve Delineation Identify and Post Alternate Bicycle Route Consider Installing Rumble Strips Post Warning Signs Provide Occasional Turnouts Consider routing pedestrians to use an alternate route. Bridge Width Post Warning Signs Improve Delineation Post Speed Advisory Upgrade Bridge Barriers Identify and Post Alternate Bicycle Route Restrict Vehicle Size if Appropriate Restrict Traffic if Appropriate Consider routing pedestrians to use an alternate route. Bridge Office input is encouraged. Structural Capacity Post Warning Signs Post Load Limit Signs Restrict Vehicle Size if Appropriate Restrict Traffic if Appropriate Identify and Post Alternate Route Bridge Office input is mandatory.

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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 57: Tort Liability Defense Practices for Design Flexibility focuses on tort liability defense practices and cases involving the exercise of discretion in design. The report is designed to help provide a framework for determining potentially successful strategies to employ when defending design decisions made following the principles of context sensitive solutions.

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