Tort Liability Defense Practices for Design Flexibility (2012)

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22 Stopping Sight Distance Remove Obstructions Post Advisory Speed Post Warning Signs Consider Installing Illumination Relocate Intersections/ Access Points Improve Horizontal Sight Lines Install Advance Flashing Warnings Widen Shoulders/Pavement Flatten Roadside Slopes Illumination is not typically effective as mitigation in crest vertical curve situations. Posting “reduced sight distance” signs is not effective. If warning signs are placed, the hazard that is hidden should be identified, such as narrow bridge or intersection ahead, for example. V. CONCLUSION CSD, Practical Design, and CSS are by-products of the need to emphasize safety, durability, maintainabil- ity, and cost in roadway design. Past generations of highway designers primarily relied on the “cookbook” method of designing highways, strictly adhering to the engineering methodology outlined in various reference manuals. The CSD process does not create new stan- dards; it merely allows the designer to be flexible by incorporating the principles that are found in the Road- side Design Guide and A Policy on Geometric Design of Highways and Streets. The CSD process allows and encourages flexibility in the scoping and design phases. Many states have devel- oped policies that encourage and even require staff to balance multiple factors during the design phase of the project. It is important for counsel to review the policies and make sure, first, that the policies are beneficial to the organization from a litigation standpoint and, sec- ond, make sure a process is in place to ensure that the policy is followed and steps are appropriately docu- mented. An entire section of this digest is devoted to developing appropriate documentation during the de- sign phase of the project in preparation for litigation. Additionally, this digest is intended to assist counsel in formulating successful design defense strategies in cases where generally-accepted standards of road de- sign were not strictly followed but the road was rea- sonably safe. These strategies include motions for summary judgment based upon the law, and the use of a framework for defending a “reasonably safe” road case to a jury. The best and most certain means of successfully de- fending a tort claim is a motion to dismiss or a motion for summary judgment based upon statutory discre- tionary immunity, statutory immunity based upon reli- ance upon generally-accepted standards, or statutory immunity based upon “balancing factors.” If that method of defense is not allowed under applicable law, the practitioner will necessarily rely upon some varia- tion of the defense that the road was “reasonably safe.” That can be shown by documentation of site conditions at the time of the crash combined with documentation done at the time of the design that shows that appro- priate engineering judgment was exercised in the de- sign and execution of the plans. At the time of publication of this digest, 15 of the 28 states that responded to our survey had enacted legisla- tion that encourages their DOTs to implement context sensitive or practical design programs. In some states, the concept is encouraged only for bridges or landscap- ing; in others, it is encouraged for all types of new con- struction. To successfully defend against claims arising from CSS and CSD, agency commitment to adhere to the strategies described in this digest is essential.