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3 TORT LIABILITY DEFENSE PRACTICES FOR DESIGN FLEXIBILITY By Terri L. Parker, Esq., Nixa, Missouri I. INTRODUCTION and research publications issued by the Transportation Research Board are often used in tort cases to educate Challenging times have required state transportation the jury about the standard level of practice for design. In agencies to rethink traditional design methods. To addition, experts are used, who in turn rely on written maximize taxpayer funds and be more responsive to the text to explain the accepted standard practices for design concerns of the public, many transportation agencies to the jury. This does not mean, however, that adherence have modified their design policies to specifically re- to accepted standard practices, such as the AASHTO quire staff to consider historical, environmental, and Green Book guidelines, automatically establishes that other context-related elements during the design proc- reasonable care was exercised. Conversely, deviation from ess rather than merely focusing on following "generally the guidelines, through the use of a design exception, does not automatically establish negligence. The best de- accepted" standards. This methodology allows the fense for a design engineer is to present persuasive evi- agency to give equal weight to aspects of the design of dence that the guidelines were not applicable to the cir- the road such as aesthetics, safety, and community con- cumstances of the project or that the guidelines could not cerns of availability of parking and economics. These be reasonably met.4 approaches are commonly called context sensitive de- This digest is intended to assist counsel in advising sign (CSD), context sensitive solutions (CSS), or flexible transportation agencies how to document the flexible design. CSS and CSD are collaborative, interdiscipli- design process and defend design defect cases where nary approaches that involve all stakeholders in provid- generally-accepted standards of road design were not ing a transportation facility that fits its setting. CSS strictly followed, but nevertheless the road was rea- and CSD methods lead to preserving and enhancing sonably safe. scenic, aesthetic, historic, community, and environ- The National Cooperative Highway Research Pro- mental resources while improving or maintaining gram (NCHRP) has published the following works, safety, mobility, and infrastructure conditions.1 which have been reviewed in preparation for this pro- Until recently, the threat of tort claims and insurance ject: John M. Mason, Jr., and Kevin M. Mahoney, De- practices discouraged engineers from trying innovative sign Exception Practices, A Synthesis of Highway Prac- designs and effectively limited them to using "cookbook" tice, NCHRP Synthesis 316, 2003; and Richard O. Jones guidelines and standards. The problem was noted in and James B. McDaniel, Risk Management for Trans- Flexibility in Highway Design,2 where it is stated: portation Programs Employing Written Guidelines as As a result of concerns about litigation, designers may be Design and Performance Standards, NCHRP 20-6, tempted to be very conservative in their approaches to 1997. Other pertinent publications have been consulted: highway design and avoid innovative and creative ap- Richard O. Jones, Context Sensitive Design: Will the proaches to design problems. While it is important for de- Vision Overcome Liability Concerns?, Transportation sign engineers to do their jobs as thoroughly and carefully as possible, avoiding unique solutions is not the answer. Research Record 1890: Journal of the Transportation This may undermine design practice and limit growth in Research Board, 2004; and William J. Stein and Timo- the engineering profession. Designers need to remember thy R. Neuman, Mitigation Strategies for Design Excep- that their skills, experience, and judgment are still valu- tions, Federal Highway Administration (FHWA), 2007. able tools that should be applied to solving design prob- This digest is not an update of the earlier works, but lems and that, with reliance on complete and sound those works did provide some of the basic framework for documentation, tort liability concerns need not be an im- the content herein and will be quoted and referred to pediment to achieving good road design.3 throughout the digest. When defending design defect cases, departments of transportation (DOT) typically need to prove that the II. USE OF CONTEXT SENSITIVE DESIGN original design complied with the generally-accepted METHODS standards that were in place at the time the road was designed and constructed. To provide data for this digest, two different surveys The AASHTO Green Book, other state-adopted highway were sent to each of the 50 states. One survey was to be standards, Federal and State regulations and guidelines, answered by the design department and the other sur- vey by the legal department. The surveys and a compi- 1 Available at http://www.contextsensitivesolutions.org/ lation of the results are attached as Appendix A, B, and content/topics/what_is_css/. C. Responses were received from 28 states. Following is 2 Available at http://www.fhwa.dot.gov/environment/ an analysis and summary of the survey results. flex/index.htm. 3 Available at http://www.fhwa.dot.gov/environment/ 4 flex/ch02.htm. Id.