Tort Liability Defense Practices for Design Flexibility (2012)

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

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

9 court pointed out that acceptable language would be that “the design of the overall intersection and ap- proaching northbound lanes was designed to comply with reasonable engineering principles.” Note that the court required “reasonable engineering principles”25 to have been used rather than requiring compliance with a particular guideline or standard such as the AASHTO Green Book. Iowa. The State has immunity from a claim of negli- gent design and construction if the road was con- structed or reconstructed in accordance with a gener- ally-recognized engineering or safety standard that was in effect at the time of the construction. In K & W Elec- tric v. State, 26 a commercial property owner sued the State after his property flooded during a large storm. To demonstrate the applicability of the design immunity, the State submitted the affidavit of David Claman, a civil engineer employed by the DOT. Mr. Claman stated in his affidavit that the hydraulic analysis and design of the highway projects in question were based upon data from a 1984 Federal Emergency Management Agency study. He also stated: [b]ased on this analysis, the bridges and structures cross- ing the main channel of the Cedar River, and the Cedar River diversion channel were sized to span the floodway, defined as the area that must be kept free of encroach- ments so that a 100-year flood could be carried without a substantial increase, defined as one foot, in flood heights…the project was constructed according to design, in accordance with these recognized, generally accepted engineering criteria existing at the time of the design and construction.27 The court found that the highway “was constructed or reconstructed in accordance with a generally recog- nized engineering…standard, criteri[on], or design the- ory in existence at the time of the construction or recon- struction," and the motion for summary judgment was sustained. Lessons learned. Once flexible design becomes more commonplace, it is likely to become more difficult for the agency to prevail at the motion stage since strict compliance with standards will be the exception rather than the rule. However, language such as the agency was in compliance with “reasonable engineering princi- ples” could be used in the engineer’s affidavit, rather than language which states that “generally-accepted standards” were followed in the design of the road. Counsel should be aware, however, that while the courts often recognize a statutory design defense as a bar to pure design claims, plaintiff’s counsel typically mixes design and maintenance claims such as a design defect and an allegation of an improper failure to warn of a dangerous condition in the petition. Even when a state enjoys the statutory design defense (such as com- pliance with standards in effect at the time of construc- 25 Id. 26 K & W Elec., Inc. v. State, 712 N.W.2d 107, 114 (Iowa 2006). 27 Id. at 113. tion) it may still be required to present evidence before a finder of fact as to whether its maintenance duties were properly performed. 2. Statutory Discretionary Defenses and Separation of Powers Issues Many states have a law that limits the state’s liabil- ity when it has exercised discretion, or in other words, when the engineers have used their engineering judg- ment. The issue of whether an agency has appropriately exercised its discretionary function is normally a ques- tion of law. Separation of Powers Doctrine.—The executive branch of the government is responsible for adopting and publishing its own standards and policies. The doc- trine of separation of powers ensures that government policy-making should not be subject to judicial review and has frequently been the subject of review by the U.S. Supreme Court. In 1880, the Court explained that one of the fundamental principles of government is the idea essential to the successful working of the system that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its department.”28 Courts are still explaining this concept 130 years later. In Tolliver v. DOT,29 plaintiff alleged that the dan- gerous condition of the roadway was the DOT’s failure to stripe it in a timely manner or the failure to use tem- porary edge markings. The Maine Tort Claims Act pro- vides that "all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages" except as otherwise provided by statute.30 Immunity is removed under the Act for claims arising from a governmental entity's performance of "[r]oad construction, street cleaning or repair."31 In its defense, the State argued that the scheduling of striping was a discretionary function and therefore it had immunity from liability. The question the court considered was whether the acts and decisions of the government em- ployee were “uniquely governmental” and therefore 28 Kilbourne v. Thompson, 103 U.S. 168, 190–91, 26 L. Ed. 377, 387 (1880). 29 2008 ME 83, 948 A.2d 1223 (Me. 2008). 30 14 ME. REV. STAT. § 8103(1). 31 14 ME. REV. STAT. § 8104-A(4) provides that a governmental entity is liable for its negligent acts or omis- sions arising out of and occurring during the performance of con- struction, street cleaning or repair operations on any highway, 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, traffic lights, parking meters and guardrails. A governmental entity is not liable for any defect, lack of repair or lack of suffi- cient railing in any highway, town way, sidewalk, parking area, causeway, bridge, airport runway or taxiway or in any appurte- nance thereto.

10 immune from suit. The court noted that discretionary function immunity, like the legislative, judicial, prose- cutorial, and State military immunity, "serves the im- portant purpose of separation of power by preventing the judicial branch from entertaining tort actions as tools for manipulating important policy decisions that have been committed to coordinate branches of govern- ment.”32 The Tolliver court discussed the separation of powers doctrine, stating that “the notion that the purpose of discretionary function immunity is to protect the sepa- ration of powers on important policy questions is sup- ported by our case law on the subject, as well as the U.S. Supreme Court precedent.”33 In Dalehite v. United States, the Court examined the legislative history of the discretionary function immunity provision, noting that [W]hile Congress desired to waive the Government's im- munity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of business, it was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function.34 The Court concluded that the acts of negligence by gov- ernmental employees alleged by the plaintiffs were im- mune from suit because they were "performed under the direction of a plan developed at a high level under a direct delegation of plan-making authority from the apex of the Executive Department.” Accordingly, they were the kind of uniquely governmental actions to which discretionary function immunity applied.35 With that background, the Tolliver court examined the striping issues and found that immunity would ap- ply if the acts were performed under the direction of a plan developed at a high level; if the challenged act in- volved a basic government policy, program, or objective; and if the act was essential to the accomplishment of the goal. The court also questioned whether the action required exercise of judgment or expertise. The court commented that the analysis it did in this case was im- portant to prevent the judicial branch from using tort actions to manipulate the government’s policy decisions, underscoring the importance of separation of powers. Lessons learned. The rationale for design immunity is to prevent a judge or jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. It is therefore important to develop a record that will satisfy the court that the proper review- ing and analyzing steps were taken to support the find- ing of a “discretionary” decision. The courts should strike a balance between safety, mobility, environ- mental, and historical interests, weighing the impacts 32 Tolliver, 948 A.2d at 1229, citing Adriance v. Town of Standish, 687 A.2d 238, 240 (Me. 1996). 33 Id. at 1229–30, citing Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427 (1953). 34 Id at 1230, citing Dalehite, 346 U.S. at 27-28. 35 Id. at 1230, citing Dalehite, 346 U.S. at 42. of one against the other as long as they are able to re- view evidence that the agency did the same thing. Considerations of public policy. In United States v. Gaubert,36 the U.S. Supreme Court held that “[t]he dis- cretionary function exception covers acts involving an element of judgment or choice if they are based on con- siderations of public policy. It is the nature of the con- duct rather than the status of the actor that governs whether the exception applies.”37 Based on Gaubert, an argument can be articulated that immunity attaches to any conduct that involves the balancing of policy con- siderations, not merely the conduct of the agency’s high-ranking officials. Under that theory, a designer would be entitled to discretionary immunity in a state that recognizes discretionary immunity as a defense, since he or she had to choose between competing socie- tal interests such as cost and environmental concerns. In a Vermont work zone case, Johnson v. Agency of Transportation,38 the court held that the language in Section 6B.01 of the Manual on Uniform Traffic Control Devices (MUTCD)39 does not prescribe a specific course of action for Department employees to follow, but rather requires them to exercise "an element of judgment or choice"40 when selecting from competing temporary traf- fic controls. The court found that an employee’s choice of temporary traffic controls was more than a ministe- rial maintenance decision because it was his or her re- sponsibility to "ponder such things" as worker safety and road user safety, noting that the MUTCD vests the responsibility for temporary traffic control in "a public body or official having jurisdiction for guiding road us- ers."41 These job duties "regularly require judgment as to which of a range of permissible courses is the wis- est."42 Thus, the Johnson court found that the choice of temporary traffic controls was a discretionary function within the meaning of the Vermont Tort Claims Act and allowed the trial court’s order granting summary judg- ment to stand. However, in Jorgenson v. DOT,43 the court refused an application by the State for summary judgment on the issue of the adequacy of a traffic control plan. The court concluded that the Department was not entitled 36 United States v. Gaubert, 499 U.S. 315, 11 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). 37 Id. at 316. 38 Johnson v. Agency of Transp., 180 Vt. 493, 904 A.2d 1060 (Vt. 2006). 39 The U.S. Department of Transportation Manual on Uni- form Traffic Control Devices (MUTCD) has been adopted by the State of Vermont as the standard for all traffic control signals within the state. VT. STAT. ANN. tit. 23, § 1025(a). See Johnson, 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- porary control zone shall be an essential part of…maintenance operations.” Johnson, 904 A.2d at 1064. 40 Johnson, 904 A.2d at 1063. 41 Id. at 1064, quoting MUTCD § 6A.01. 42 Id. at 1066. 43 2009 ME 42, 969 A.2d 912 (Me. 2009).

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

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

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

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

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