Tort Liability Defense Practices for Design Flexibility (2012)

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25 APPENDIX B—SURVEY QUESTIONNAIRE Legal Question 1 Legal Question 2 State 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? Was the department’s defense suc- cessful? Please give a brief description of the case. What attorneys were in- volved? Please provide contact infor- mation if available. Alabama Yes Yes Arkansas No N/A California Yes Unknown Colorado No N/A Connecticut No N/A Delaware Yes Yes Florida Yes Yes Georgia Yes N/A Illinois No N/A Iowa Yes Yes Kansas No N/A Kentucky No response No response Maryland Yes Yes Massachusetts Yes Yes Mississippi No N/A Missouri No N/A Nebraska No N/A New York Yes Yes Ohio Yes Yes Oregon N/A N/A Pennsylvania Yes Yes Tennessee Yes Yes Texas Unknown Unknown Utah No No Vermont Yes Yes Virginia No N/A Washington Yes Yes Wyoming Yes N/A

26 Legal Question 3 Legal Question 4 State Was the case reported anywhere? If so please provide citation. Does your state have a statute that specifi- cally allows or requires your design staff to consider factors such as cost, safety, histori- cal or environmental significance? For exam- ple, Hawaii has a statute that specifically allows the agency to use “flexible design.” Alabama Yes No Arkansas N/A No California Unknown Yes Colorado No No Connecticut N/A Yes Delaware N/A Yes Florida Yes Yes Georgia N/A N/A Illinios N/A Yes Iowa Yes No Kansas N/A Yes Kentucky No response No response Maryland N/A Yes Massachusetts N/A No Mississippi N/A No Missouri N/A No Nebraska N/A Yes New York Yes No Ohio N/A No Oregon N/A Yes Pennsylvania Yes No Tennessee Unknown No Texas N/A No Utah N/A No Vermont Unknown No Virginia N/A No Washington Unknown Yes Wyoming N/A N/A

27 Legal Question 5 Legal Question 6 State If you have a law that requires the balancing steps be taken, has it yet been challenged or re- viewed by a court? If so what happened? Does your state have a statute that provides design or discretionary immunity to the state agency or the individ- ual 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 engineering in a tort law- suit. If so, please provide the citation. What experience have you had in defending this statute or discretionary decisions the agency has made? Alabama N/A Yes Arkansas N/A No California Unknown Yes Colorado No Yes Connecticut No No Delaware N/A Yes Florida No Yes Georgia N/A N/A Illinois No Yes Iowa N/A Yes Kansas Unknown Unknown Kentucky No response No response Maryland N/A Yes Massachusetts No Yes Mississippi No Yes Missouri N/A Yes Nebraska N/A Yes New York No Unknown Ohio N/A No Oregon N/A Unknown Pennsylvania Yes No Tennessee N/A No Texas N/A Yes Utah N/A Yes Vermont N/A Yes Virginia N/A Washington N/A No Wyoming N/A Yes

28 Design Question 1 Design Question 2 State Does your agency have a written policy requiring staff to consider and bal- ance cost, environmental, scenic or historical signifi- cance when scoping and designing a project? If yes, please provide. 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 ex- plain. Alabama No Yes Arkansas No Yes California Yes N/A Colorado Yes N/A Connecticut No Yes Delaware Yes N/A Florida Yes N/A Georgia Yes N/A Illinios Yes N/A Iowa No Yes Kansas Yes Yes Kentucky No response No response Maryland Yes N/A Massachusetts Yes N/A Mississippi Yes N/A Missouri Yes N/A Nebraska No Yes New York Yes N/A Ohio No Yes Oregon Yes N/A Pennsylvania Yes N/A Tennessee No Yes Texas Yes No Utah Yes Yes Vermont Yes N/A Virginia Yes N/A Washington Yes N/A Wyoming No Yes

29 Design Question 3 Design Question 4 State Does the agency have a specific de- sign exception policy and process? If yes please provide. 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 De- sign Guide or internal policy? Alabama Yes Attached Arkansas Yes Attached California Yes Attached Colorado Yes Attached Connecticut Yes Attached Delaware Yes Attached Florida Yes Attached Georgia Yes Attached Illinois Yes Attached Iowa Yes Attached Kansas Yes Attached Kentucky No response No response Maryland Yes Attached Massachusetts Yes Attached Mississippi Yes Attached Missouri Yes Attached Nebraska Yes Attached New York Yes Attached Ohio Yes Attached Oregon Yes Attached Pennsylvania Yes Attached Tennessee Yes Attached Texas Yes Attached Utah Yes Attached Vermont Yes Not provided Virginia Yes Attached Washington Yes Attached Wyoming Yes Attached

30 Design Question 5 Design Question 6 State What documentation is developed while the project is being scoped and designed? What forms used to work through the issues? How is the proc- ess memorialized? How is the infor- mation stored and for how long? Please provide examples of associ- ated paperwork. Please provide examples of instances where design decisions were made to achieve multiple public policy objectives, such as balancing cost and historical significance, or environmental and safety concerns. Alabama Attached Attached Arkansas Attached No California Attached Attached Colorado Attached Attached Connecticut Attached Attached Delaware Attached Attached Florida Attached Attached Georgia Attached Attached Illinois Attached Attached Iowa Attached Unknown Kansas Unknown Unknown Kentucky No response No response Maryland Attached Not provided Massachusetts Attached Attached Mississippi Attached Attached Missouri Attached Attached Nebraska Attached Attached New York Attached Attached Ohio Attached Attached Oregon Attached Attached Pennsylvania Attached Attached Tennessee Attached Attached Texas Attached Not provided Utah Attached Attached Vermont Attahed Not provided Virginia Attached N/A Washington Attached Attached Wyoming Attached Attached