Tort Liability Defense Practices for Design Flexibility (2012) / Chapter Skim
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The best defense for a design engineer is to present persuasive evidence that the guidelines were not applicable to the circumstances of the project or that the guidelines could not be reasonably met.4 This digest is intended to assist counsel in advising transportation agencies how to document the flexible design process and defend design defect cases where generally-accepted standards of road design were not strictly followed, but nevertheless the road was reasonably safe. The National Cooperative Highway Research Program (NCHRP)
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• Georgia Quality Control/Quality Assurance (QC/QA) Program: The…Quality Control and Quality Assurance program has been developed by the Engineering Division of the Georgia Department of Transportation to ensure the engineering, design, plans and quantities developed by our design offices are supported by comprehensive studies and sound engineering judgment, comply with established polices, guidelines and standards, and contain appropriate design flexibility and cost saving measures.6 • Maryland has two policies that accomplish context sensitive goals: The publication "When Main Street is a State Highway" documents its CSD approach, and its Complete Streets Policy ensures that all users of the transportation network are taken into account in design practices.7 • Oregon: "Practical Design" is a strategy adopted to reduce cost and still deliver tangible benefits to the traveling public from improvements made.
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If the agency considers each of the factors to be equally important, and that fact is noted in the policy, the courts should give deference to the policy when determining whether the agency acted reasonably in the design of the road. Counsel may be able to use the flexible design policy as the basis of a discretionary immunity defense.
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For the purposes of this digest, because many agencies must defend against personal injury claims on the premise that a road is reasonably safe, focus herein is on the steps taken by designers to ensure flexible designs did not compromise the safety of the system. It should be noted, however, that there are many examples of flexible design that do not focus on safety; they focus on maintaining the character of the road, preserving important historical landmarks, or reducing environmental impacts.
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