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Legal Research Digest 63 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM October 2014 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES EFFECT OF MUTCD ON TORT LIABILITY OF GOVERNMENT TRANSPORTATION AGENCIES This report was prepared under NCHRP Project 20-6, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, The Thomas Law Firm, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- LQJSUDFWLFHVDQGOHJDOHOHPHQWVRIVSHFLÃFSUREOHPVLQ highway law. This report continues NCHRPâs practice of keeping departments up-to-date on laws that will affect their operations. Applications The most recent version of the Manual on Uniform Traf- ÃF&RQWURO'HYLFHV (MUTCD) was adopted by the U.S. Department of Transportation on December 16, 2009, WREHHIIHFWLYH-DQXDU\7KHÃQDO UXOHPDNLQJ (74 )HGHUDO5HJLVWHU 66729) also required that, within 2 years of the effective date, states adopt the MUTCD as WKHLUOHJDOVWDWHVWDQGDUGIRUWUDIÃFFRQWUROGHYLFHV7KH MUTCD, administered by the Federal Highway Admin- istration since 1971, has been revised a number of times over the years, with the most recent previous edition being adopted in 2003. The 2009 revision made changes to some compliance dates, as well as language changes, that may impact on statesâ possible tort liability. This research was undertaken to inform practitio- ners about the current status of tort liability involving governmental transportation agencies arising from the application and development of the MUTCD. Research explores the basis for tort liability arising before and after adoption of the MUTCD. This includes issues relating to governmental immunity, such as man- datory versus permissive language and the âplanning/ operationalâ test to determine governmental liability, which are considered and discussed in 1&+53/HJDO 5HVHDUFK'LJHVW 5LVN0DQDJHPHQWIRU7UDQVSRUWD- WLRQ3URJUDPV(PSOR\LQJ:ULWWHQ*XLGHOLQHVDV'HVLJQ DQG3HUIRUPDQFH6WDQGDUGV (1997). Virtually all states and localities permit a plaintiff to sue a public entity for negligence, subject, however, to certain limitations and exceptions. As discussed in this digest, tort claims acts that apply to transportation departments and other public entities generally include a discretionary func- tion exemption to immunize public entities for alleged negligence when exercising their discretion. In addi- tion, a stateâs tort claims act or other state statute may include additional exceptions to the liability of trans- portation departments. Issues that that are addressed include: 1) the effect of the MUTCD on the manner in which government tort liability has developed; 2) the extent to which federal, state, and other governments have adopted tort claims acts and laws that have waived or greatly curtailed sovereign immunity; and 3) the impact of peculiar state laws. This digest should be useful to highway attorneys, VDIHW\RIÃFLDOVEXGJHWSODQQHUVDQGVWDWHKLJKZD\RIÃ- cials in general.
