Tort Liability Defense Practices for Design Flexibility (2012)

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

4 A. Current Balancing Factors or Context Sensitive Design Policies Numerous examples of flexible design were identi- fied. More than half of the states have adopted policy statements directing designers to make decisions based on factors such as safety, environmental, historical, and economic concerns rather than focusing only on compli- ance with rigid standards. The following policies were found in the survey responses and via Internet re- search. • California Director’s Policy: The Department uses CSS as an approach to plan, design, construct, main- tain, and operate its transportation system. These solu- tions use innovative and inclusive approaches that in- tegrate and balance community, aesthetic, historic, and environmental values with transportation safety, main- tenance, and performance goals.5 The context of all pro- jects and activities is a key factor in reaching decisions. Context must be considered for all State transportation and support facilities when staff is defining, developing, and evaluating options. When considering the context, issues such as funding feasibility, maintenance feasibil- ity, traffic demand, impact on alternate routes, impact on safety, and relevant laws, rules, and regulations must be addressed. • Georgia Quality Control/Quality Assurance (QC/QA) Program: The…Quality Control and Quality Assurance program has been developed by the Engineering Division of the Georgia Department of Transportation to ensure the en- gineering, design, plans and quantities developed by our design offices are supported by comprehensive studies and sound engineering judgment, comply with estab- lished polices, guidelines and standards, and contain ap- propriate design flexibility and cost saving measures.6 • Maryland has two policies that accomplish context sensitive goals: The publication “When Main Street is a State Highway” documents its CSD approach, and its Complete Streets Policy ensures that all users of the transportation network are taken into account in design practices.7 • Oregon: “Practical Design” is a strategy adopted to reduce cost and still deliver tangible benefits to the traveling public from improvements made. At a mini- mum, it considers safety, economic development, com- munities if a project passes through them, the environ- ment, the overall transportation system (not just highways), and cost. In Oregon, Practical Design is a systematic approach to deliver the broadest benefits to the transportation system within existing resources by establishing appro- priate projects scopes and design guidelines to deliver 5 http://www.dot.ca.gov/hq/oppd/context-solution.pdf. 6 http://www.dot.state.ga.us/doingbusiness/Policies Manuals/roads/OtherResources/GDOT_QCQA_Program.pdf. 7 http://www.roads.maryland.gov/ohd/MainStreet.pdf, Maryland Complete Streets Policy, 2011. specific results. Two unique features of Practical Design are that it provides flexible parameters so that design teams can be confident that a particular solution is “good enough” and sufficient to improve the transporta- tion system, without being excessive. It allows engi- neers to take the concept across a system level, down to a corridor level, and then apply it to each project. It is a way to let “engineers engineer”…not just apply criteria by the book. It is important to understand that Practi- cal Design does not throw out engineering guidance or standards. Rather, flexibility in design typically re- quires more information and a higher level of analysis when defining and deciding on the most appropriate design value for a particular location. It requires main- taining focus on the project’s purpose and need and a clear process for approving and documenting the ra- tionale for important design decisions. It requires good use of engineering judgment to assess the severity of adverse consequences, evaluate design tradeoffs, and mitigate risks to the extent it is practical.8 Missouri, Kentucky, and Kansas have similar programs. Pennsylvania and New Jersey have adopted a pro- gram called “Smart Transportation.”9 The following concepts are explained in their Smart Transportation Guidebook. • Tailor solutions to the context—The design of a road should reflect the surrounding environment and the role it serves in the community by using transitions through rural, suburban, and urban communities and reflect the unique conditions along the way. • Tailor the approach—The approach to identifying transportation needs and potential solutions should be developed in partnership with the community, project team members, and other interested parties early in the process. • Plan all projects in collaboration with the commu- nity—It is necessary for the New Jersey Department of Transportation (NJDOT) and the community to work together to ensure that appropriate land use controls are put in place and the roadway design supports com- munity goals. • Plan for alternative transportation modes—Similar to the Complete Streets concept, Smart Transportation encourages roads to be designed with all users in mind, balancing vehicular and nonvehicular needs. • Use sound professional judgment—The use of a flexible design approach is essential to providing a con- text sensitive roadway that meets the unique circum- stances of a given community. This approach requires the designers to think outside of the box and use their professional judgment to develop a creative solution. 8 Email from Oregon Transportation Deputy Director Douglas J. Tindall regarding implementation of Practical De- sign (Nov. 17, 2009). (Available at office of author upon re- quest.) 9 http://www.nj.gov/transportation/works/njfit/ guidebook.shtm.

5 • Scale the solution to the size of the problem— Considering possible transportation solutions should first include lower-cost, lower-scale approaches such as transportation system management and other nonca- pacity adding solutions before seeking a widening al- ternative. Summary of Survey Results Of the responding states, 19 (67 percent) said that the agency had a written policy that required staff to consider and balance cost, environmental, scenic, or historical significance when scoping and designing the project. • The responder from Illinois stated that “…designers must seek, to use all of the flexibility in- herent in the policies to craft the best possible solutions to identified transportation problems.” • Oregon responded to the survey by stating that “[a]t the core of our Practical Design program is the concept of delivering focused benefits for the transpor- tation system while working within the realities of a fiscally-constrained funding environment—balance is key.” • Similarly, Maryland stated that it has adopted a CSD approach on many state highway projects. In addi- tion to CSD, the transportation department is now in the process of adopting a “complete streets” policy which ensures that all users of the transportation net- work are taken into account during the design phase. • Massachusetts adopted a guide that requires staff to “consider and balance cost, environmental, scenic and historical significance.” The purpose of its guide is to “provide designers and decision makers with a framework for incorporating context sensitive design and multimodal elements into transportation improve- ment projects.” While many states do not currently have a formal written policy requiring staff to consider balancing of historical, environmental, safety, and cost factors, most of their survey responses indicated that those factors are considered during the design phase. Analysis of the Policies The text of all the flexible design policies cannot be included in this publication due to their length. How- ever, it appears that the policies fall into five categories: 1. Policies that reflect legislative approval of the CSD process. 2. Policies that explicitly state that safety is only one goal of CSD and that it must be balanced with all the other goals. 3. Policies that reference balancing all factors, in- cluding safety. 4. Policies that recommend some type of CSS but do not discuss the balancing factors contained within the theories. 5. Policies that recommend using CSS/CSD strate- gies but emphasize safety as the paramount factor. Counsel should review their state’s design policy to ensure that the text of the policy and the practice of the department assist counsel and the agency when litiga- tion occurs. There are several different types of policies, as noted above. For instance, the California Director’s Policy states that “[c]ontext must be considered for all State transportation and support facilities when staff is defining, developing, and evaluating options. When considering the context, issues such as funding feasibil- ity, maintenance feasibility, traffic demand, impact on alternate routes, impact on safety, and relevant laws, rules, and regulations must be addressed.” If and when the state is sued on a design defect claim, it would be very helpful to the defense if there is documentation in the file of how each of the factors identified in the Di- rector’s policy was actually considered, addressed, or debated. In Hawaii, the legislature has authorized and di- rected the agency to consider safety, environmental, and historical aspects of the highway design, and all modes of transportation during the design phase of new construction and reconstruction. The law10 specifically exempts the people who made those decisions and the agency those people work for from liability should liti- gation occur as the result of a perceived flaw in the de- sign procedure. This law practically guarantees that very little litigation relating to new design will occur. Vermont has a similar law. It is sometimes difficult to reconcile a department’s public statements with the need for a sound legal de- fense in the event of personal injury claims. If possible, it may be helpful to the defense of a design case and ultimately the agency to consider a policy that specifi- cally states that while safety is an important factor that will always be considered in the design of the project, it will be balanced with other equally important factors such as economic, historical, and environmental consid- erations. This language corresponds to the policy type noted above as Category 2, policies that explicitly state that safety is only one goal of CSD and that it must be balanced with all the other goals, or Category 3, policies that reference balancing of all factors, including safety. If the agency considers each of the factors to be equally important, and that fact is noted in the policy, the courts should give deference to the policy when deter- mining whether the agency acted reasonably in the de- sign of the road. Counsel may be able to use the flexible design policy as the basis of a discretionary immunity defense. As will be discussed later, it is likely that the adoption of an overall design policy would be considered a discre- tionary action by the governing body. Evidence that the governing authority adopted the policy after careful review of the competing public policy considerations lends credence to this proposal and could be the basis of a successful discretionary defense. 10 HAW. REV. STAT. § 264-20.

6 For a complete listing of the states that responded to the survey and their responses, see attached Appendi- ces B and C. B. Application of Context Sensitive Design Responding states provided examples of CSD success stories in their survey responses. Generally speaking, environmental, safety, historical, and cost aspects and impacts of the project are considered in the planning phase of the project. The public is involved in the proc- ess, which ensures more buy-in for the project because their input is considered. For the purposes of this di- gest, because many agencies must defend against per- sonal injury claims on the premise that a road is rea- sonably safe, focus herein is on the steps taken by designers to ensure flexible designs did not compromise the safety of the system. It should be noted, however, that there are many examples of flexible design that do not focus on safety; they focus on maintaining the char- acter of the road, preserving important historical land- marks, or reducing environmental impacts. • Delaware—One state road corridor was in need of improvement for more than 30 years. The community did not want the four-lane roadway that the Delaware Department of Transportation (DelDOT) had proposed because they wanted to retain their “small town” at- mosphere. The DelDOT Needs Analysis identified four basic needs—reduction of congestion, safety improve- ment, establishment of defined entrances, and im- provement of existing roadway conditions. Since the community was unwilling to accept a widening of the road, the state studied the amount and type of accidents in the corridor and determined that the accident and safety problem could be addressed by providing center turn lanes and right-turn lanes at intersections. To ad- dress the problem of vehicles leaving the road and strik- ing fixed objects, such objects were moved outside the clear zone. The addition of safety grading and travers- able slopes provided the recommended recovery area for errant vehicles. Design exceptions were obtained for a reduced-width center turn lane, and the above-noted mitigation steps were taken to accomplish the goals of minimizing impacts to residences and businesses, con- trolling cost, and improving overall safety. • Colorado—Glenwood Canyon on I-70 was built in an environmentally-sensitive area. Compound curves were used where other alignments could not accommo- date the environmental features of the canyon and an existing power plant. The widths of the highway lanes were originally 4 ft, 12 ft, and 12 ft, with 6-ft outside shoulders. When the highway was repaved recently, it was restriped as 4 ft, 11 ft, and 11 ft, with 8-ft shoul- ders because the 6-ft shoulders were causing problems for broken-down vehicles that had no safe refuge. Hav- ing 11-ft lanes is not standard on Interstate highways but it was considered to be a safety improvement to have 11-ft lanes and an 8-ft breakdown shoulder. Sur- vey results indicated that Colorado DOT did not have documentation or analysis of the initial decision to re- stripe the road. However, staff believed that a safety study of the road done in the future would prove that the changes were beneficial to the overall safety of the road. • Florida—Cost considerations and safety were high- lighted when the designer used the analysis found in the recently published Highway Safety Manual.11 Using that analysis, the designers were able to demonstrate that a divided highway with a median was much safer than a four-lane road with a two-way, left-turn lane. The analysis demonstrated an improvement in the safety of the corridor and saved the cost of the purchase of additional right-of-way. • Maryland—When considering the I-695 bridge re- placement, the department decided to reduce the advi- sory speed on one of the ramps because the ramp that was called for in the plans did not meet the American Association of State Highway and Transportation Offi- cials (AASHTO) radius requirement. Safety improve- ments that were used to mitigate the reduction in- cluded adding signing and lighting along the ramps, adding a traffic barrier, removing existing vegetation to improve sight distance, and making geometric im- provements. While the bridge ramp does not meet the AASHTO standard, staff is confident that the ramp is reasonably safe. Staff who responded to the survey in- dicated that the design exception file and milestone reports are kept indefinitely and that those documents adequately document the mitigation strategies and de- cision process used. Those documents show the agency’s deliberative process and explain the reasons that the generally-accepted standards could not reasonably be achieved. • Washington—The I-90 Snoqualmie Pass East cor- ridor is located in Kittitas County within the We- natchee National Forest. The highway was upgraded from two to three lanes in each direction. Problems in- cluded road closure due to avalanches, which were ad- dressed by construction of snow retention fences and a snow shed to protect the roadway from avalanche chutes, accidents involving wildlife, and the existence of six curves that did not meet minimum design standards for the posted speed. Wildlife crossings were expanded and portions of the alignment were straightened. To accommodate environmental concerns and the moun- tainous terrain, reduced median and shoulder widths were used. To mitigate the narrower lanes and median widths, high-performance barriers and rumble strips were used. C. Documentation Use in Litigation The states were asked whether documentation that they had gathered during the design process was useful in later defending the state in court or against legal challenges. Fifteen of the 28 states (53 percent) re- sponded that they had used documentation of the deci- 11 Survey Response, Florida, Mar. 2011. See Florida High- way Safety Manual, available at http://www.flhsmv.gov/fhp/ Manuals/.