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7 sion-making for such purpose, and 12 of the 15 states be weighed equally, that should be apparent in the (80 percent) reported that the defense had been success- documentation. ful or partially successful. Summaries of their responses are provided below. III. STRATEGIES FOR THE DEFENSE OF THE LAWSUIT Alabama's response was typical. Their counsel stated that "virtually any document produced during This section includes a compilation and analysis of the design process has and can be used in defending legal cases involving successful and unsuccessful tort litigation. We may offer documents to show our action liability defenses where agencies have been required to and reasons for our action. We may use that same defend discretionary decisions that were intended to documentation to refute evidence contrary to the De- achieve multiple public policies. It also includes a partment's position." 12 framework that may be used to defend cases that con- In Washington State, design documentation has tain allegations of design defects as well as a trial been used in two ways. Some of the documentation is preparation outline. used to show that decisions occurred at the highest level and were policy-making in nature. The choice of A. LEGAL BASIS FOR DEFENSE the appropriate design guidelines (standards) for a New lawsuits alleging design defects and noncompli- highway is made by the Washington State Transporta- ance with established standards will likely be based on tion Commission. Some choices are made in accordance the premise that had the road been built to AASHTO's with the state's Strategic Highway Safety Plan and A Policy on Geometric Design of Highways and Streets therefore subject to discretionary immunity. Project (Green Book) or Roadside Design Guide16 or to specific files are often used to create the documentation that state standards, it would be safe, and that a road or shows appropriate decisions were made by the engi- feature of the road that includes a deviation from the neer. This documentation includes project summaries, generally-accepted guidelines or standards is not safe. design deviations, corridor analyses, and studies.13 That presumption can be overcome with documentation The Pennsylvania Department of Transportation from the original design file that shows the thorough reported success in defending its tort claims and often analysis the engineer went through to determine the uses documentation gathered during the design process best design. The contents of that file will likely become to defend itself. The Pennsylvania Rules of Evidence the basis of the state's defense. permit an expert witness to present all relevant engi- The most solid legal defenses will be based on im- neering standards, principles, criteria, warrants, and munity such as statutory design, statutory discretion, any other facts and data used by engineers to show the or compliance with internal or external policy.17 The jury that the selected design was in accordance with attorney must first review applicable law to determine generally-accepted engineering principles.14 which defenses can be used as the basis for a summary Tennessee indicated that original plans were often judgment motion or motion to dismiss. Summary judg- used to investigate design criteria for claims filed ment may be entered only in those cases where the re- against the state. "Engineers for the state compare the cord clearly demonstrates that there are no genuine design criteria used with the AASHO/AASHTO design issues of material fact and that the moving party is en- standards that were current at the time the project was titled to judgment as a matter of law.18 Legal defenses designed."15 are explored thoroughly below. Missouri Rule of Civil Procedure 74.0419 is a typical D. RECOMMENDATIONS summary judgment motion provision. Essentially the As the literature and the survey responses indicate, one of the state's best strategies for defense of personal injury claims in CSS and CSD cases is solid documenta- 16 Available for purchase through AASHTO publication tion of the reason for the decision. To do so, standards catalog Web site, http://downloads.transportation.org/aashto_ forms can be developed by the agencies or they can catalog.pdf. modify the examples in the back of this digest for their 17 For a thorough discussion of immunity see LARRY use. The documentation should be in conformance with THOMAS, TORT LIABILITY OF HIGHWAY AGENCIES (National the policy on flexible design. For example, if the state Cooperative Highway Research Program, Selected Studies in identifies safety as its number one priority, the infor- Transportation Law, Vol. 4, 1, 2003). mation in the file should support the proposition that 18 P.J.S. v. Pa. State Ethics Comm'n, 555 Pa. 149, 723 A.2d safety--not cost, environmental, or historical con- 174 (1999). cerns--was the focus during the scoping, planning, and 19 Motion for Summary Judgment. design phases. If the policy says that all the factors will (a) For Claimant. At any time after the expiration of thirty days from the commencement of the action or after service of a 12 Survey Response, Alabama, May 2011. motion for summary judgment by the adverse party, a party 13 Survey Response, Washington, Apr. 2011. seeking to recover upon a claim, counterclaim, or cross-claim or 14 to obtain a declaratory judgment may move with or without Survey Response, Pennsylvania, Apr. 2011. supporting affidavits for a summary judgment upon all or any 15 Survey Response, Tennessee, Apr. 2011. part of the pending issues.

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8 moving party files a motion that avers that there are no dangerous condition of its property if the public entity issues of fact in dispute and asks the court to make a demonstrates that the injury was caused by property ruling based on the facts that have been established in constructed in accordance with an approved plan or the case and the law of the jurisdiction. design. For design immunity to apply, there must exist 1) a causal relationship between the plan and the acci- 1. Statutory Design Defense dent; 2) discretionary approval of the plan prior to con- The agency may be able to base its defense on a state struction; and 3) substantial evidence supporting the law that allows it to present evidence that the highway reasonableness of the plan.21 According to the court in complied with state-of-the art or other applicable stan- Cornette v. Department of Transportation, the purpose dards at the time of construction. Compliance may be of the statute is to prevent a jury from second-guessing shown by affidavit or deposition testimony of a profes- the decision of a public entity by reviewing the identical sional engineer who has reviewed both the plans and questions that have already been considered by the the standards. agency.22 California. California is one of the states that has an A motion for summary judgment based on the af- affirmative design defense. Under California Govern- firmative defense was successful in Laabs v. City of Vic- ment Code 830.6, 20 a public entity is not liable for a torville.23 The Laabs court examined the third element of the law, the definition of "substantial evidence." The court determined that it alone should make the decision (b) For Defending Party. At any time, a party against whom a whether "there is any substantial evidence upon the claim, counterclaim, or cross-claim is asserted or a declaratory basis of which (a) a reasonable public employee could judgment is sought may move with or without supporting affi- davits for a summary judgment as to all or any part of the pend- have adopted the plan...or (b) a reasonable employee ing issues. could have approved the plan or design or standards...." (c) Motions and Proceedings Thereon. The court found that factors such as whether the evi- dence would "reasonably inspire confidence" and is of (1) Motions for Summary Judgment. A motion for summary judgment shall summarily state the legal basis for the motion. A "solid value" should be considered. Typically, substan- statement of uncontroverted material facts shall be attached to tial evidence "consists of an expert opinion as to the the motion. The statement shall state with particularity in sepa- reasonableness of the design or evidence of relevant rately numbered paragraphs each material fact as to which design standards." movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demon- A successful summary judgment motion in Califor- strate the lack of a genuine issue as to such facts...[A]ttached to nia--substantial evidence of the reasonableness of the the statement shall be a copy of all discovery, exhibits or affida- plan. The Laabs court accepted an affidavit of a regis- vits on which the motion relies. Movant shall file a separate le- tered civil engineer who opined that the design was not gal memorandum explaining why summary judgment should be only reasonable but "excellent," but rejected an affidavit granted. as insufficient where the engineer stated that "the (2) Responses to Motions for Summary Judgment. Within 30 plans and design for the southbound lanes fell within days after a motion for summary judgment is served, the ad- verse party shall serve a response on all parties. The response the range of reasonable engineering guidelines."24 The shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements. A denial may not rest upon the for...Notwithstanding notice that constructed or improved pub- mere allegations or denials of the party's pleading. Rather, the lic property may no longer be in conformity with a plan or de- response shall support each denial with specific references to sign or a standard which reasonably could be approved by the the discovery, exhibits or affidavits that demonstrate specific legislative body or other body or employee, the immunity pro- facts showing that there is a genuine issue for trial. Attached to vided by this section shall continue for a reasonable period of the response shall be a copy of all discovery, exhibits or affida- time sufficient to permit the public entity to obtain funds for vits on which the response relies. A response that does not com- and carry out remedial work necessary to allow such public ply with this Rule 74.04(c)(2) with respect to any numbered property to be in conformity with a plan or design approved by paragraph in movant's statement is an admission of the truth of the legislative body of the public entity or other body or em- that numbered paragraph. The response may also set forth ad- ployee, or with a plan or design in conformity with a standard ditional material facts that remain in dispute, which shall be previously approved by such legislative body or other body or presented in consecutively numbered paragraphs and supported employee. In the event that the public entity is unable to rem- in the manner prescribed by Rule 74.04(c)(1). edy such public property because of practical impossibility or 20 California Government Code 830.6 states as follows: lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably at- Neither a public entity nor a public employee is liable under tempt to provide adequate warnings of the existence of the con- this chapter for an injury caused by the plan or design of a con- dition not conforming to the approved plan or design or to the struction of, or an improvement to, public property where such approved standard. However, where a person fails to heed such plan or design has been approved in advance of the construction warning or occupies public property despite such warning, such or improvement by the legislative body of the public entity or by failure or occupation shall not in itself constitute an assumption some other body or employee exercising discretionary authority of the risk of the danger indicated by the warning. to give such approval or where such plan or design is prepared 21 in conformity with standards previously so approved, if the trial Cornette v. Dep't of Transp., 26 Cal. 4th 63, 109 Cal. or appellate court determines that there is any substantial evi- Rptr. 2d 1, 26 P.3d 332 (Cal. 2001). dence upon the basis of which (a) a reasonable public employee 22 Id. at 69. could have adopted the plan or design or the standards therefor 23 163 Cal. App. 4th 1242, Cal. Rptr. 3d 372 (2008). or (b) a reasonable legislative body or other body or employee 24 could have approved the plan or design or the standards there- Id. at 1265.

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9 court pointed out that acceptable language would be tion) it may still be required to present evidence before that "the design of the overall intersection and ap- a finder of fact as to whether its maintenance duties proaching northbound lanes was designed to comply were properly performed. with reasonable engineering principles." Note that the court required "reasonable engineering principles"25 to 2. Statutory Discretionary Defenses and Separation of have been used rather than requiring compliance with Powers Issues a particular guideline or standard such as the AASHTO Many states have a law that limits the state's liabil- Green Book. ity when it has exercised discretion, or in other words, Iowa. The State has immunity from a claim of negli- when the engineers have used their engineering judg- gent design and construction if the road was con- ment. The issue of whether an agency has appropriately structed or reconstructed in accordance with a gener- exercised its discretionary function is normally a ques- ally-recognized engineering or safety standard that was tion of law. in effect at the time of the construction. In K & W Elec- Separation of Powers Doctrine.--The executive tric v. State, 26 a commercial property owner sued the branch of the government is responsible for adopting State after his property flooded during a large storm. To and publishing its own standards and policies. The doc- demonstrate the applicability of the design immunity, trine of separation of powers ensures that government the State submitted the affidavit of David Claman, a policy-making should not be subject to judicial review civil engineer employed by the DOT. Mr. Claman stated and has frequently been the subject of review by the in his affidavit that the hydraulic analysis and design of U.S. Supreme Court. In 1880, the Court explained that the highway projects in question were based upon data one of the fundamental principles of government is the from a 1984 Federal Emergency Management Agency idea study. He also stated: essential to the successful working of the system that the [b]ased on this analysis, the bridges and structures cross- persons entrusted with power in any one of these ing the main channel of the Cedar River, and the Cedar branches shall not be permitted to encroach upon the River diversion channel were sized to span the floodway, powers confided to the others, but that each shall by the defined as the area that must be kept free of encroach- law of its creation be limited to the exercise of the powers ments so that a 100-year flood could be carried without a appropriate to its department."28 substantial increase, defined as one foot, in flood heights...the project was constructed according to design, Courts are still explaining this concept 130 years in accordance with these recognized, generally accepted later. engineering criteria existing at the time of the design and In Tolliver v. DOT,29 plaintiff alleged that the dan- construction.27 gerous condition of the roadway was the DOT's failure The court found that the highway "was constructed to stripe it in a timely manner or the failure to use tem- or reconstructed in accordance with a generally recog- porary edge markings. The Maine Tort Claims Act pro- nized engineering...standard, criteri[on], or design the- vides that "all governmental entities shall be immune ory in existence at the time of the construction or recon- from suit on any and all tort claims seeking recovery of struction," and the motion for summary judgment was damages" except as otherwise provided by statute.30 sustained. Immunity is removed under the Act for claims arising Lessons learned. Once flexible design becomes more from a governmental entity's performance of "[r]oad commonplace, it is likely to become more difficult for construction, street cleaning or repair."31 In its defense, the agency to prevail at the motion stage since strict the State argued that the scheduling of striping was a compliance with standards will be the exception rather discretionary function and therefore it had immunity than the rule. However, language such as the agency from liability. The question the court considered was was in compliance with "reasonable engineering princi- whether the acts and decisions of the government em- ples" could be used in the engineer's affidavit, rather ployee were "uniquely governmental" and therefore than language which states that "generally-accepted standards" were followed in the design of the road. 28 Kilbourne v. Thompson, 103 U.S. 168, 19091, 26 L. Ed. Counsel should be aware, however, that while the 377, 387 (1880). courts often recognize a statutory design defense as a 29 2008 ME 83, 948 A.2d 1223 (Me. 2008). bar to pure design claims, plaintiff's counsel typically 30 14 ME. REV. STAT. 8103(1). mixes design and maintenance claims such as a design 31 14 ME. REV. STAT. 8104-A(4) provides that defect and an allegation of an improper failure to warn a governmental entity is liable for its negligent acts or omis- of a dangerous condition in the petition. Even when a sions arising out of and occurring during the performance of con- state enjoys the statutory design defense (such as com- struction, street cleaning or repair operations on any highway, pliance with standards in effect at the time of construc- town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of those ways including, but not limited to, street signs, 25 Id. traffic lights, parking meters and guardrails. A governmental 26 entity is not liable for any defect, lack of repair or lack of suffi- K & W Elec., Inc. v. State, 712 N.W.2d 107, 114 (Iowa cient railing in any highway, town way, sidewalk, parking area, 2006). causeway, bridge, airport runway or taxiway or in any appurte- 27 Id. at 113. nance thereto.

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10 immune from suit. The court noted that discretionary of one against the other as long as they are able to re- function immunity, like the legislative, judicial, prose- view evidence that the agency did the same thing. cutorial, and State military immunity, "serves the im- Considerations of public policy. In United States v. portant purpose of separation of power by preventing Gaubert,36 the U.S. Supreme Court held that "[t]he dis- the judicial branch from entertaining tort actions as cretionary function exception covers acts involving an tools for manipulating important policy decisions that element of judgment or choice if they are based on con- have been committed to coordinate branches of govern- siderations of public policy. It is the nature of the con- ment."32 duct rather than the status of the actor that governs The Tolliver court discussed the separation of powers whether the exception applies."37 Based on Gaubert, an doctrine, stating that "the notion that the purpose of argument can be articulated that immunity attaches to discretionary function immunity is to protect the sepa- any conduct that involves the balancing of policy con- ration of powers on important policy questions is sup- siderations, not merely the conduct of the agency's ported by our case law on the subject, as well as the high-ranking officials. Under that theory, a designer U.S. Supreme Court precedent."33 In Dalehite v. United would be entitled to discretionary immunity in a state States, the Court examined the legislative history of the that recognizes discretionary immunity as a defense, discretionary function immunity provision, noting that since he or she had to choose between competing socie- [W]hile Congress desired to waive the Government's im- tal interests such as cost and environmental concerns. munity from actions for injuries to person and property In a Vermont work zone case, Johnson v. Agency of occasioned by the tortious conduct of its agents acting Transportation,38 the court held that the language in within their scope of business, it was not contemplated Section 6B.01 of the Manual on Uniform Traffic Control that the Government should be subject to liability arising Devices (MUTCD)39 does not prescribe a specific course from acts of a governmental nature or function.34 of action for Department employees to follow, but rather The Court concluded that the acts of negligence by gov- requires them to exercise "an element of judgment or ernmental employees alleged by the plaintiffs were im- choice"40 when selecting from competing temporary traf- mune from suit because they were "performed under fic controls. The court found that an employee's choice the direction of a plan developed at a high level under a of temporary traffic controls was more than a ministe- direct delegation of plan-making authority from the rial maintenance decision because it was his or her re- apex of the Executive Department." Accordingly, they sponsibility to "ponder such things" as worker safety were the kind of uniquely governmental actions to and road user safety, noting that the MUTCD vests the which discretionary function immunity applied.35 responsibility for temporary traffic control in "a public With that background, the Tolliver court examined body or official having jurisdiction for guiding road us- the striping issues and found that immunity would ap- ers."41 These job duties "regularly require judgment as ply if the acts were performed under the direction of a to which of a range of permissible courses is the wis- plan developed at a high level; if the challenged act in- est."42 Thus, the Johnson court found that the choice of volved a basic government policy, program, or objective; temporary traffic controls was a discretionary function and if the act was essential to the accomplishment of within the meaning of the Vermont Tort Claims Act and the goal. The court also questioned whether the action allowed the trial court's order granting summary judg- required exercise of judgment or expertise. The court ment to stand. commented that the analysis it did in this case was im- However, in Jorgenson v. DOT,43 the court refused portant to prevent the judicial branch from using tort an application by the State for summary judgment on actions to manipulate the government's policy decisions, the issue of the adequacy of a traffic control plan. The underscoring the importance of separation of powers. court concluded that the Department was not entitled Lessons learned. The rationale for design immunity is to prevent a judge or jury from second-guessing the 36 United States v. Gaubert, 499 U.S. 315, 11 S. Ct. 1267, decision of a public entity by reviewing the identical 113 L. Ed. 2d 335 (1991). questions of risk that had previously been considered by 37 Id. at 316. the government officers who adopted or approved the 38 plan or design. It is therefore important to develop a Johnson v. Agency of Transp., 180 Vt. 493, 904 A.2d 1060 (Vt. 2006). record that will satisfy the court that the proper review- 39 ing and analyzing steps were taken to support the find- The U.S. Department of Transportation Manual on Uni- form Traffic Control Devices (MUTCD) has been adopted by the ing of a "discretionary" decision. The courts should State of Vermont as the standard for all traffic control signals strike a balance between safety, mobility, environ- within the state. VT. STAT. ANN. tit. 23, 1025(a). See Johnson, mental, and historical interests, weighing the impacts 904 A.2d at 1062. The pertinent provision of 6B.01 of the MUTCD "states that [t]he control of road users through a tem- 32 Tolliver, 948 A.2d at 1229, citing Adriance v. Town of porary control zone shall be an essential part of...maintenance Standish, 687 A.2d 238, 240 (Me. 1996). operations." Johnson, 904 A.2d at 1064. 40 33 Id. at 122930, citing Dalehite v. United States, 346 U.S. Johnson, 904 A.2d at 1063. 41 15, 97 L. Ed. 1427 (1953). Id. at 1064, quoting MUTCD 6A.01. 34 42 Id at 1230, citing Dalehite, 346 U.S. at 27-28. Id. at 1066. 35 43 Id. at 1230, citing Dalehite, 346 U.S. at 42. 2009 ME 42, 969 A.2d 912 (Me. 2009).

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11 to discretionary function immunity for the traffic con- found against it when it could not show that thorough trol plan because no Department employees had en- consideration of alternatives occurred. gaged in "careful weighing of competing public policy The testimony of the state's retired employee that em- considerations when determining when to complete the ployees in his design group would have reviewed the re- striping of the road and whether to use temporary edge construction plans and that someone would have checked line markings."44 Rather, the Department employees the design for guiderails was insufficient to establish the were merely "assessing the logical and most efficient adequacy of the process. Rather, there is a triable issue of way to complete a road improvement project."45 The fact whether the states' design and construction of the court essentially said that not all decision-making is guiderail was the product of adequate study and a rea- sonable planning decision on the part of defendant or was entitled to discretionary function immunity; only those instead negligent.48 more significant decisions involving the weighing of competing public policy considerations are entitled to In King v. Landguth,49 a lawsuit that involved a immunity. The Jorgenson court acknowledged that sleeping driver who left the road and struck a box cul- many factors have to be considered to safely control the vert, plaintiff's expert testified that the South Dakota flow of traffic, including visibility, traffic volume, road- DOT had adopted the Federal MUTCD and the way layout, hills, curves, intersections, driveways, and AASHTO Roadside Design Guide, and, in his opinion, speed limits, and that many choices can be made as to those standards required four markers, one on each signs, shadow vehicles, flaggers, barriers, cones, drums, corner, for a culvert of the type in question. The expert and message boards. The court simply did not acknowl- stated that these were clear policies that did not require edge that those decisions are the types of decisions for any discretion. The State produced testimony that sup- which the Department was intended to have immunity ported its application for summary judgment, citing the from liability. same policies that plaintiff's expert cited. However, According to Summer v. Carpenter,46 mere room for unlike plaintiff's expert, the DOT employees claimed discretion on the part of the entity is not sufficient to that the South Dakota DOT Policy required only two invoke the discretionary immunity provision. Discre- markers at this culvert. Because there was no clear tionary immunity is contingent on proof that the gov- guidance on the issue, the court found that the decision ernment entity, faced with alternatives, actually regarding the installation of additional markers was a weighed competing considerations and made a con- discretionary function since it required engineering scious choice. Further, the entity must establish, in judgment to make a decision as to the correct applica- weighing the competing considerations and alterna- tion of the markers, and allowed summary judgment. tives, that it utilized accepted professional standards In Davison v. State,50 the court reviewed the Iowa appropriate to resolve the issue. In Summer, a legal DOT's methodology of inspecting and maintaining the malpractice claim against an attorney who failed to file State's road system after a crash that was caused after a "dangerous road" claim against the DOT, the respon- a farm wagon became separated from the vehicle that dent presented evidence that indicated 1) the design was towing it. The plaintiff claimed the State was neg- used for the intersection was common and 2) while the ligent 1) by failing to perform proper inspections of the respondent's expert would have selected another de- highway, 2) by failing to adequately maintain and re- sign, the chosen design was not wrong. According to the pair the highway, and 3) by failing to take reasonable court, that evidence was not sufficient to establish that measures to warn motorists of the dangerous conditions the highway department considered various design op- created by the badly deteriorated roadway. The court tions for the intersection and then selected the chosen acknowledged that the State must weigh alternatives design plan after carefully weighing competing consid- and make choices with respect to policy and planning. erations. Therefore, summary judgment was not appro- They worked through the following analysis: priate. In Matter of Estate of Siamak Hamzavi v. State of Was an element of judgment or discretion in- New York,47 the estate submitted an expert's affidavit volved? We must first determine whether the State's that raised issues of fact as to whether a normal drain- actions were a matter of choice or judgment. If the age ditch existed near the guide rail, what standards State's conduct cannot be "appropriately the product of applied, and whether the design and construction of the judgment or choice, then there is no discretion in the guide rail, most particularly its length and end treat- conduct for the discretionary function exception to pro- ment, complied with the applicable standards. The tect."51 Nearly all challenged conduct can be character- court required the State to show that its plan was the ized as the exercise of some judgment or discretion as product of a deliberative decision-making process and judgment is exercised in almost every human endeavor. The court concluded that the DOT's decisions regarding 44 the performance of inspections, maintenance, and re- Id. at 18, quoting Tolliver v. DOT, 2008 ME 83, at 23, 948 A.2d 1223, 1231 (2008). 48 45 Id. Id. at 1432. 49 46 328 S.C. 36, 492 S.E.2d 55 (1997). 2007 SD 2, 726 N.W.2d 603 (2007). 50 47 43 A.D. 3d 1430, 843 N.Y.S.2d 896, 2007 NY Slip Op 7246 671 N.W.2d 519 (Iowa App. 2003). 51 (N.Y. App. Div. 2007). Id.

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12 pairs were matters of judgment left to the department's tive include the AASHTO "Green Book",53 the Roadside discretion. Design Guide,54 FHWA's Flexibility in Highway De- Is the challenged conduct of the nature the legisla- sign,55 the AASHTO Highway Safety Manual,56 and ture intended to shield from liability? Immunity applies applicable state guidelines or policies. As the use of if the State's challenged conduct involved considera- flexible design principles becomes more commonly ac- tions of public policy.52 The more the State's judgment cepted, it is likely that counsel will infrequently have involved policy-making, the more it is to be recognized the defense of strict compliance with generally-accepted as immune from judicial process. If the challenged con- guidelines such as the federal publications. Counsel duct involved a high degree of discretion and judgment should, however, always review the text of the gener- in weighing alternatives and making choices with re- ally-accepted guidelines for language such as "range" of spect to public policy and planning, the State would be acceptable practice, "engineering judgment," and "flexi- immune from liability. bility" because those phrases may in fact be the basis of their defense. The defense of the claim can be based The court concluded that the discretion used in per- upon the premise that federal guidelines are flexible to mitting the road to remain in poor condition was the a point and that the policy written and accepted by the type of discretion that the legislature intended to insu- state is the policy that should have been followed. late from liability, giving the example that when a city Counsel should review internal policies before litiga- decides whether to build a road, open a new street, or tion occurs to determine if the policies could or should install highway guardrails, it may consider various so- be modified to better reflect actual practices in the field. cial, economic, and political policies. It may weigh com- If an unfavorable policy is in place at the time an acci- peting needs of pedestrian safety, engineering concerns, dent occurs, it will be very difficult to explain to the commerce, traffic flow, and limited financial resources. trier of fact that reasonable care was taken or a danger- Likewise, the DOT's decisions as to inspecting and ous condition of the road did not exist if the condition is maintaining the system involved weighing alternatives specifically prohibited by the policy. For instance, in and making choices regarding public policy and plan- Missouri, internal policy requires that a clear zone of at ning and was a protected decision. least 30 ft be maintained on Interstate highways. How- Lessons learned on discretionary immunity. Discre- ever, there are locations in Missouri where a clear zone tionary immunity can be a valuable tool in defense of an is not maintained as the State does not own enough agency's decision, but it attaches only if the state can right-of-way to maintain that clear zone. Should an prove that it actually considered several alternatives accident occur in one of those locations, plaintiffs would and chose the one that was used based on engineering prove that the State was not in compliance with its own judgment, competing policy, and after weighing of all policies and a jury could easily make the leap that the appropriate factors. One factor that can be very impor- road was therefore in a dangerous condition. If Missouri tant to the defense is the agency's policy on flexible de- were to modify the policy to indicate actual field condi- sign. As discussed in Section II, if the direction for tions, i.e. a clear zone of 30 ft is required only if the flexible design is given by the legislature or the State actually owns 30 ft of right-of-way, the claim agency's governing body, courts will likely recognize it would be more easily defended. for what it is--a policy that was given much thought, Martin v. Missouri Highway and Transportation debate, and judgment, evaluating societal factors such Commission57 involved a claim that the Missouri High- as economics and historical value, paving the way for way and Transportation Commission (MHTC) failed to the discretionary immunity defense. comply with its own clear zone policies. There was tes- It is important to be able to provide a documented, timony in the case that MHTC had adopted a policy to rational, detailed explanation of the design when the require clear zones on its roads in conformance with a agency has deviated from generally-accepted guidelines. 1967 American Association of State Highway Officials That documentation may include meeting minutes; de- publication and that the road where Ms. Martin was sign exception materials that explain how safety, his- killed was not in compliance with the policy. The jury torical, or environmental significance were addressed found in favor of plaintiff and awarded damages, which using mitigation features such as guardrails or rumble on appeal were allowed to remain. The significance of strips; or engineering studies. The court will require the case, however, is that Missouri courts have taken evidence that the right person or persons, usually a professional engineer, made the decision to deviate from 53 Available for purchase through the AASHTO publication the standards. Web site at http://downloads.transportation.org/aashto_ catalog.pdf. 3. Compliance with Internal or External Standards or 54 Available for purchase through the AASHTO publication Policy Web site at http://downloads.transportation.org/aashto_ Applicable guidelines/standards/policies should be catalog.pdf. identified and studied so that an appropriate defense 55 http://www.fhwa.dot.gov/environment/flex/index.htm. can be prepared. Guidelines considered to be authorita- 56 Web site available at http://www.highwaysafetymanual. org/Pages/default.aspx. 52 57 Id. 981 S.W.2d 577 (Mo. App.W.D. 1998).

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13 judicial notice of testimony in Martin that the State's MUTCD provision relied upon by plaintiff merely sug- policy was to provide a clear zone of 30 ft, when, in fact, gested that department employees "will have to make the clear zone policy only applies to some heavily- discretionary judgments about how to apply concretely traveled routes. Since Martin is the only reported case the aspirational goal embedded in the statement."63 in Missouri dealing with State highways and clear The court allowed testimony regarding the use of rea- zones, the case presented problems for MHTC until sonable engineering principles rather than a strict ad- State policy was rewritten to more accurately reflect herence to the language of the MUTCD and affirmed conditions in the field. the trial court's grant of the State's motion for summary In Perkins v. Ohio Department of Transportation,58 judgment. on plaintiff's appeal of an unfavorable verdict, the De- Counsel should consider cases such as Perkins and partment had adopted its own internal version of the Johnson when defending defective design cases. Even MUTCD. Plaintiff identified five failures of the De- though it was apparent that deviations from the guide- partment to comply with its design and traffic stan- lines occurred, the agency was successful in proving dards. The court noted that once the Department that the road was reasonably safe and that the viola- adopted the standard, it was required to comply with it, tions of the policy did not cause plaintiff's injuries and and further noted that the Department, in fact, failed to subsequent damages. comply with several of the requirements. But even Lessons learned. The MUTCD and other references though plaintiff proved a violation of policy, she failed are guidelines, not cookbooks. Guidelines often contain to prove that the policy violation caused the accident. the terms "shall," "may," and "should," which must be The court noted that "negligence per se does not equal applied using reasoned engineering and common-sense liability per se."59 Even though plaintiff proved a dan- principles. The Green Book64 contains a statement that gerous condition, she did not prove that the dangerous reads condition was the proximate cause of her accident. [t]he intent of this policy is to provide guidance to the de- Unfortunately, compliance with generally-accepted signer by referencing a recommended range of values for standards does not necessarily guarantee that the state critical dimensions. It is not intended to be a detailed de- or its contractors will be found free of fault. In Schmidt sign manual that could supersede the need for the appli- v. Washington Contractors Group, Inc.,60 Schmidt's in- cation of sound principles by the knowledgeable design juries occurred when he crashed his motorcycle in a professional. Sufficient flexibility is permitted to encour- construction zone. The court noted that the construction age independent designs tailored to particular situations. company was required to use ordinary care in maintain- Statements such as these, taken from the national ing the road construction site in a reasonably safe con- publications, should feature prominently in the state's dition. The construction company argued that it was not argument in favor of its motion for summary judgment negligent as it properly had posted warning signs as or in the state's examination of expert witnesses. required by the MUTCD. The court stated that "evi- dence of compliance with the MUTCD does not neces- 4. Balancing Factors/Flexible Design Legislation sarily establish due care because the MUTCD, like any Compliance with "balancing factors" state law. Fif- other national industry standard or code, is only a teen states responding to our survey currently have a minimum standard." This case is important because it law that in some fashion supports the agency's use of highlights the lesson that guidelines must be applied balancing factors or flexible design in the design phase with careful analysis. It is not sufficient to blindly fol- of a project. Some of the statutes, such as Hawaii's, spe- low provisions in a manual: the provisions in the man- cifically allow the DOT to select or apply flexible design ual must be used in conjunction with engineering principles, and then provide immunity to the state and judgment and common sense. its employees if the flexibility is used. The legislative In Johnson v. Agency of Transportation,61 plaintiff history of the Hawaii law indicates that the legislature argued that the MUTCD specifically required an em- specifically found that flexible designs were not any less ployee to consider the volume of traffic, the complexity safe than earlier engineering practices and that the of the intersection, and road user safety before choosing concept simply takes a "broader range of considera- to employ flashing lights as a temporary traffic control. tions" into account. The DOT was directed to develop Plaintiff noted that Section 6B.01 of the MUTCD stated guidelines and adopt a procedure that would provide that "[t]he control of road users through a temporary documentation of the process and reasoning that led to traffic control zone shall be an essential part the design decision, including the circumstances of each of...maintenance operations."62 The court found that the project, the choices available, and the considerations reviewed, as well as a complete explanation for the de- 58 65 Ohio App. 3d 487, 584 N.E.2d 795 (1989). cision itself. The DOT was also required to incorporate 59 Id. at 495, citing Merchants Mutual Ins. Co. v. Baker, 15 Ohio St. 3d 316, 15 OBR 444, 473 N.E.2d 827 (1984). 60 Schmidt v. Wash. Contractors Group, Inc., 290 Mont. 276, 964 P.2d 34 (Mt. 1998). 63 Id., quoting Shansky v. United States, 164 F.3d 688, 691 61 180 Vt. 493, 904 A.2d 1060 (2006). (1st Cir. 1999). 62 64 Id. at 495. 2004 Green Book, p. xliii of the Foreword.

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14 qualitative and safety studies in the design when possi- outdated, it had a limited budget with many competing ble.65 demands, and had to prioritize the needs of the entire Other state laws simply support the use of CSD prin- system and maximize the use of its limited funds to best ciples. Connecticut's statute only applies to bridge de- serve all the traveling public. sign, while Delaware requires the State to use the prin- In Estate of Gage v. State of Vermont,67 it was alleged ciples when considering landscaping on right-of-way. that the State should have placed a guardrail near the Kansas has statutorily implemented a system called edge of its right-of-way, which would have prevented a "Practical Improvements," which is similar to the Prac- fatal accident. An appeal followed after the State's mo- tical Design concept statutorily adopted by Oregon. tion for summary judgment based on design immunity The laws are fairly new, and currently none have was denied. The court noted that Vermont's tort law been challenged in the court system. If counsel is lucky was patterned after the Federal Tort Claims Act and enough to have a state law that favors the use of flexi- looked to cases that interpreted that Act for guidance. ble or practical design, an appropriately-supported mo- The Gage court noted that federal agencies were al- tion for summary judgment should frequently be suc- lowed to consider factors such as the risks of the safety cessful. measures themselves, cost/benefit analysis, and aes- A matrix that summarizes those laws can be found thetic considerations when evaluating whether a par- in Appendix C. ticular measure such as a guardrail was appropriate.68 Defending the design with the balancing factors Federal agencies also were allowed to consider factors analysis. While the CSD statutes have not yet been other than safety such as aesthetics, environmental challenged in court, once that occurs, one of the most impact, and available financial resources in making a successful ways of defending the case will likely be to determination as to whether a guardrail should have use evidence that each of the competing factors, i.e., been installed.69 The Gage court found that the sum- cost, environmental, and safety concerns were carefully mary motion should have been granted. considered in choosing the course of action that was In the case of Riley v. United States of America,70 the taken. For example, if a design defect were brought U.S. government prevailed when the court found it against a state that sanctions the balancing factors lacked jurisdiction due to sovereign immunity. Riley's analysis, expectations would be that the design docu- sight distance was obscured by mailboxes placed by the mentation contain, at a minimum, the documents iden- U.S. Postal Service. He pulled onto a State highway at tified in the legislative history, i.e., documentation of an intersection and was struck by an oncoming vehicle. the process and reasoning that led to the decision, in- Riley argued that the Postal Service had no discretion cluding the circumstances of each project, the choices to locate mailboxes and that the government was bound available, and the considerations reviewed, as well as a by the AASHTO Green Book, which states "[a]fter a complete explanation for the decision itself. If these vehicle has stopped at an intersection, the driver must items were not contained in the design file, the agency have sufficient sight distance to make a safe departure would likely not be able to show that it complied with through the intersection area."71 The appellate court its law or policy, and thus the agency would not be able found that the Green Book provisions were mere guide- to shield itself with the immunity provided in the stat- lines, noting that "despite the alleged nonconformance ute. with certain AASHTO standards, the United States The balancing factors analysis was used by the court Postal Service is charged with balancing a mix of fac- in Butler v. State.66 Plaintiff Butler was injured when tors such as cost and safety."72 The court further noted his vehicle collided with a guardrail that had not been that the judgment of where to locate the mailboxes is of upgraded to comply with newer standards when the the kind that the discretionary function exception was newer standards were adopted. The State defended the designed to shield, stating that the agency was simply case on the basis that the road was reasonably safe, and balancing personnel, efficiency, economy, and safety by appealed when the trial court found that the State was choosing curbside delivery at the U.S. 63-Christopher negligent as a matter of law for failing to upgrade the intersection, as opposed to other locations and modes of guardrail. The court discussed the "reasonableness" of delivery. the State's decision, and noted that the State must bal- In Martinez v. Grant County Public Utility District ance such factors as 1) the danger imposed by the out- No. 2,73 a case where a worker was electrocuted when dated device; 2) the increase in safety the new device or he lifted a metal pipe that made contact with a high- design would provide; 3) the cost of upgrading; 4) the State's available resources; 5) other known hazards that 67 178 Vt. 212, 882 A.2d 1157, 2005 VT 78 (2005). pose a greater danger to motorists; and 6) any other 68 See also Elder v. United States, 312 F.3d 1172 (10th Cir. factors, including other needs in the highway system. 2002). The Butler court reasoned that while the State was 69 See Bowman v. United States, 820 F.2d 1393 (4th Cir. likely aware of components in its network that were 1987). 70 486 F.3d 1030 (8th Cir. 2007). 71 65 Flexibility in Highway Design, Hawaii, L 2005, c 185, Id. at 1033. 72 2; am L 2006, c 70, 1. Id. 66 73 336 N.W.2d 416 (Iowa 1983). 70 Wash. App. 134, 851 P.2d 1248 (1993).

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15 voltage wire, the jury weighed several competing fac- Third, defendant failed to use ordinary care to warn of tors before finding in favor of the utility. Plaintiffs in- such condition, and troduced evidence that an electrocution could have been Fourth, as a direct result of such failure, plaintiff sus- avoided if the Public Utility District (PUD) had raised tained damage. its transmission lines higher, buried the lines, used A design defect case could be defended in many insulated wire, or fenced the land under the lines. In ways. For example, if the defect alleged is the failure to response, the PUD introduced evidence that the trans- provide a clear zone, several arguments could be made. mission lines were built to substantially exceed then- One defense is simply that the road was reasonably safe existing safety standards and that those same stan- even though it did not have a clear zone. This could be dards were still in effect when the accident occurred. shown by the lack of other similar accidents or a low The PUD further presented testimony that plaintiff's accident ratio. The case could be defended by arguing proposed remedial measures would not have reduced that plaintiff's damage was not a direct result of the the overall hazards, were not feasible, or would reduce lack of clear zone but was the direct result of plaintiff's reliability of the system, in addition to evidence of the failure to use the highest degree of care in operating the overall costs of implementing each of the plaintiff's pro- vehicle. posed safety measures and the impact those increased After review of the claim, counsel should gather all costs would have on ratepayers. After considering the the pertinent information such as crash history, traffic evidence, the jury found the PUD was not negligent, volume, prevailing speed, design standards or policies, and the verdict was affirmed on appeal. design documentation, photos, video, witness state- Lessons learned. To base a successful defense on the ments, and other data relevant to the claim. Once the theme that the state complied with a state law that information is located, it must be studied carefully and allowed flexible or context sensitive factors to be con- themes developed to defend the claim. Possible themes sidered in determining a design, courts will require evi- include responsibility to the traveling public and tax- dence that the factors were actually applied and that payers (if allowed), the road is reasonably safe, and the the designer really weighed the pros and cons of the state used ordinary care. design options. Since typically many years pass from Identify applicable guidelines/standards/policies. the time that the plans are initially conceived, the road These may include the AASHTO Green Book75 and is built, and the accident that spurs the litigation oc- Roadside Design Guide,76 FHWA's Flexibility in High- curs, documentation of the decision-making process is way Design,77 the MUTCD,78 the AASHTO Highway essential. Courts will look for evidence that the agency Safety Manual,79 and the agency's internal policies. consciously balanced alternatives, taking into account Engineering judgment. The agency's defense must be safety, economics, adopted standards, and recognized based, at least in part, on the design engineer's use of engineering practices. In order for a motion for sum- engineering judgment. The MUTCD defines engineer- mary judgment to be successful, adequate documenta- ing judgment80 as the tion that the design complied with reasonable engineer- ing principles will be necessary. evaluation of available pertinent information and the ap- plication of appropriate principles, provisions, and prac- tices as contained in this manual and other sources, for 5. Road Reasonably Safe Defense the purpose of deciding upon the applicability, design, op- Proving the reasonableness of the design and that the eration, or installation of a traffic control device. Engi- road was reasonably safe. In some states, the discre- neering judgment shall be exercised by an engineer, or by tionary and state-of-the-art defenses are not available an individual working under the supervision of an engi- or applicable and counsel will have to present a defense neer, through the application of procedures and criteria that the road was reasonably safe. established by the engineer. Review the law. Analysis will likely begin with appli- Witnesses will need to explain how engineering judg- cable state law. Many counsel begin their case prepara- ment and engineering principles were appropriately tion by outlining the facts that plaintiff has to prove to applied. present a case to the trier of fact. A good resource is the Defend the design of the road. The attorney must de- state's approved jury instruction handbook. For in- velop a rational and (optimally) documented explana- stance, in Missouri,74 the pertinent "waiver of sovereign immunity" approved jury instruction reads as follows: 75 Available through the AASHTO publication catalog, Your verdict must be for plaintiff if you believe: http://downloads.transportation.org/aashto_catalog.pdf. 76 Available for purchase from AASHTO bookstore at First, (describe the alleged dangerous condition), and as a https://bookstore.transportation.org/category_item. result the road was not reasonably safe, and aspx?id=DS. Second, defendant knew or by using ordinary care could 77 http://www.fhwa.dot.gov/environment/flex/index.htm. have known of this condition in time to warn of such con- 78 Available at http://mutcd.fhwa.dot.gov/. dition, and 79 Web site available at http://www.highwaysafetymanual. org/Pages/default.aspx. 80 MUTCD 14 (2009 edition), available at http://mutcd. 74 Missouri Approved Instruction 31.16. fhwa.dot.gov/.