Tort Liability Defense Practices for Design Flexibility (2012)

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23 APPENDIX A—STUDY SURVEY SURVEY NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM PROJECT 20-6 STUDY TOPIC 17-02 TORT LIABILITY DEFENSE PRACTICES FOR DESIGN FLEXIBILITY State transportation agencies have many funding requests and little funding. However, agencies still have the ability to provide quality projects to the public and be conscious of the public’s concerns about safety, the envi- ronment and getting the most for their tax dollars. Some state agencies have adopted design policies that spe- cifically require their staff to consider cost, scenic and historical factors when determining the appropriate scope and need of a new project. In order to accomplish this goal, designers are using innovative and creative ap- proaches to solve design transportation problems. NCHRP is preparing a report that will summarize state transportation agencies’ experience with “practical design” and “context sensitive design” and provide legal counsel for those agencies with a framework for devis- ing successful strategies to defend policy decisions made by engineering staff. Some questions in this survey are most likely appropriate for the Division Director of Design (or your state’s equivalent) to answer while some questions in the survey are directed to your legal counsel. Please visit the report website at Tparkerlaw.net if you wish to complete the survey electronically. If sending your response by regular mail, please send to Terri Parker, Attorney at Law, 1922 N Twain, Nixa MO 65714. CDs or paper copies of materials are welcomed. You may also respond by e-mail and submit the re- quested information to Terri@tparkerlaw.net. If you have any questions, please contact Ms. Parker at 417-839-5119 or at the above noted e-mail address. Please provide the name and associated information of the person or persons completing this questionnaire and, if different, someone else that may be contacted for follow up information: Name: _______________________________________________ Title: _______________________________________________ Agency: ______________________________________________ Street Address: ________________________________________ City, State, Zip: __________________________________________ Telephone: _____________________________________________ Fax Number and E-mail Address: ________________________________________ DESIGN QUESTIONS 1. Does your agency have a written policy requiring staff to consider and balance cost, environmental, scenic or historical significance when scoping and designing a project? If yes, please provide. 2. If the agency does not have a specific written policy, does staff nonetheless consider and balance factors such as cost, environmental, scenic and historical significance when scoping and designing a project? If yes, please explain. 3. Does the agency have a specific design exception policy and process? If yes please provide. 4. What documentation process is used by the agency for documenting decisions that do not comply with generally accepted guidelines such as the AASHTO Green Book, the Roadside Design Guide or internal policy? 5. What documentation is developed while the project is being scoped and designed? What forms used to work through the issues? How is the process memorialized? How is the information stored and for how long? Please provide examples of associated paperwork. 6. Please provide examples of instances where design decisions were made to achieve multiple public pol- icy objectives, such as balancing cost and historical significance, or environmental and safety concerns. LEGAL QUESTIONS 7. Has the agency used documentation gathered during the design process to later defend itself in court or against other legal challenges? If so what type of information was used and how was it used?

24 8. Was the department’s defense successful? Please give a brief description of the case. What attorneys were involved? Please provide contact information if available. 9. Was the case reported anywhere? If so please provide citation. 10. Does your state have a statute that specifically allows or requires your design staff to consider factors such as cost, safety, historical or environmental significance? For example, Hawaii has a statute that specifi- cally allows the agency to use “flexible design.” 11. If you have a law that requires the balancing steps be taken, has it yet been challenged or reviewed by a court? If so what happened? 12. Does your state have a statute that provides design or discretionary immunity to the state agency or the individual employees of the agency? For instance, California has a law that provides an affirmative defense of compliance with standards or evidence of documented approval of a design exception based on sound engi- neering in a tort lawsuit. If so, please provide the citation. What experience have you had in defending this statute or discretionary decisions the agency has made?