Tort Liability Defense Practices for Design Flexibility (2012) / Chapter Skim
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A. Legal Basis for Defense
A. Legal Basis for Defense
Pages 7-15
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From page 7... ...
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 engineering 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.
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From page 8... ...
Typically, substantial 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 California -- substantial evidence of the reasonableness of the plan. The Laabs court accepted an affidavit of a registered 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 public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided 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 employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee.
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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 employee were "uniquely governmental" and therefore 28 Kilbourne v.
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The court found that an employee's choice of temporary traffic controls was more than a ministerial maintenance decision because it was his or her responsibility 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 users."41 These job duties "regularly require judgment as to which of a range of permissible courses is the wisest."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 judgment to stand. However, in Jorgenson v.
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From page 11... ...
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 application of the markers, and allowed summary judgment. In Davison v.
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From page 12... ...
Discretionary 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 important to the defense is the agency's policy on flexible design.
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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.
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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 guidelines, noting that "despite the alleged nonconformance with certain AASHTO standards, the United States Postal Service is charged with balancing a mix of factors 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.
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From page 15... ...
These may include the AASHTO Green Book75 and Roadside Design Guide,76 FHWA's Flexibility in Highway Design,77 the MUTCD,78 the AASHTO Highway Safety Manual,79 and the agency's internal policies. Engineering judgment.
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