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23 provements are required. This strategy is appro- priate for both ADA and tort claims. ⢠Establish a baseline. For instance, make sure that all sidewalks are catalogued and their condi- tion as of a certain date is identified as either ex- cellent, adequate, or in need of repair. Once all the sidewalks are identified, plan improvements either in conjunction with projects or in addition to planned projects. ⢠Have traffic accident data available and use it. When locations are identified that need signals or crosswalks, or other enhancements, make sure the people who can fund those projects have needs data available when funding opportunities arise. B. Request Help and Input from the Public ⢠Make sure the lines of communication are open so that complaints and concerns can be ad- dressed by local authorities before members of the public believe they need to escalate their concerns to other authorities. ⢠Have a user-friendly Web site in place so that suggestions and complaints can be made at any time of the day or night. ⢠Ensure that staff responds appropriately and in a timely manner to complaints. ⢠Update the agencyâs transition plan on an annual basis to ensure that current needs of the community are being addressed. C. Review the Claims ⢠Have a strategy and plan to identify trends. For instance, are most defective claims in a par- ticular city or part of town? ⢠Identify problem areas such as a sidewalk that has failed or is grown over with weeds and communicate those issues to people within the agency that are able to appropriately address them. ⢠When an incident or accident is reported, document the conditions of the scene as soon as possible. Appropriate documentation may include photographs, videos, and interviews of employees or witnesses. Traffic counts may need to be taken. A reconstruction may also be necessary. Make sure that the people who investigate the claims are adequately trained to take accurate and com- plete measurements. One of the ways to deter- mine priorities for future projects is to look at past accident history and analyze traffic patterns to determine where the heavily travelled pedes- trian areas are located. It has long been noted that if an agency is not in compliance at least with its own guidelines, the case will be very difficult to defend. ⢠Successful defenses to tort claims frequently include compliance with industry standards, lack of notice, open and obvious conditions, and fault on the part of plaintiff or others. As noted above, the successful defense also depends upon being able to prove the actual condition of the alleged dangerous facility at the time of the incident. This can be proven with photos, video, and other writ- ten documentation of the condition and the agency guidelines in place at the time of the inci- dent. D. Provide Tools to Address Problems ⢠Provide employees with training so they can recognize problem areas. For instance, construc- tion inspectors should know the maximum slope allowed for sidewalks and the proper locations for buttons on pedestrian signal heads so that they can be reached by people who are in wheelchairs. When a technical problem is identified on a con- struction project, make sure it can be resolved quickly without the need for extensive negotiation with the contractor. ⢠Make sure that construction inspectors and maintenance workers adequately provide for wheelchair traffic during construction projects and winter storm events. ⢠Train designers to be able to produce techni- cally correct design plans and work with planners to identify areas that are in need of upgrades so that those projects can get scheduled in a timely manner. ⢠Encourage employees who work in the field to identify problem areas, and either schedule them to be fixed or address them with a supervisor. E. Comply With Internal Guidance and Industry Standards ⢠Review internal guidelines for consistency and to make sure that the agency intends to do the work that is outlined in the policies. Some- times guidelines and policies are written to say what the administration hopes its workers will do, rather than reflecting the actual work that is go- ing on in the field. ⢠Ensure that guidance is both realistic and in compliance with state and federal law. VI. CONCLUSION State and local agencies continue to be genu- inely and understandably concerned about side- walk and crosswalk liability. Pedestrian acci- dents, by their nature, are frequently very serious. The state and local agencies that shared their ADA enforcement experiences as well as
24 their civil litigation experiences provided informa- tion that is very valuable to the entire community. ADA complaints seem to be fairly commonplace, but the reporting agenciesâ experiences indicate that they can frequently be resolved without the need for costly litigation. The best defense to an ADA complaint is compliance with the law. Sidewalks can cause safety concerns under the best of circumstances. In order to maintain a rea- sonably safe pedestrian transportation system, agencies must be vigilant in inspecting and main- taining their property, and take steps to improve the safety of the system whenever the opportunity presents itself.
