Effect of MUTCD on Tort Liability of Government Transportation Agencies (2014)

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51 TABLE 1 CASES (JANUARY 2010–APRIL 2014) ARISING UNDER THE 2003 MUTCD OR EARLIER OR UNIDENTIFIED EDITIONS Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome Albertson v. Fremont County, 834 F. Supp. 2d 1117 (D. Idaho 2011) Whether Fremont County is liable for negligence per se for failing to comply with the requirements of the MUTCD on a snow trail. a) Accident occurred on February 1, 2009. b) MUTCD edition not clearly stated or identified. c) MUTCD specific provisions not identified. Fremont County's motion granted on plaintiffs’ claim for negligence per se and denied as to plaintiffs' claim for ordinary negligence. Partially in favor of the County. Outcome on the ordinary negligence claim not known. Am. Family Mut. Ins. Co. v. Outagamie County, 816 N.W.2d 340 (Wis. Ct. App. 2012) Whether the County had a ministerial duty to use more than one flagger at an intersection so that each flagger could face the direction of the traffic he or she was controlling. a) Accident appears to have occurred in May 2009. b) Court applied the 2003 MUTCD. c) MUTCD § 6E–2. Summary judgment for the County affirmed. For the County. Casella v. Township of Manalapan, 2011 N.J. Super. Unpub. LEXIS 957 at *1 (N.J Super., App. Div. 2011) Whether the Township negligently designed, erected, and maintained a “Stop” sign that created a dangerous condition at the intersection. a) Accident occurred on July 20, 2006. b) MUTCD edition not clearly stated or identified. c) Specific provisions of the MUTCD not identified. Holding there was no evidence that the installation complied with MUTCD standards or that anyone had approved the placement; that evidence was inadequate to support summary judgment for immunity under N.J.S.A. 59:4-6(a). For the Plaintiff. Ultimate outcome not known.

52 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome Summary judgment for the Township reversed. Daigle v. Jefferson, 30 So. 3d 55 (La. App. 2009), writ denied, 29 So. 3d 1262 (La., Mar. 26, 2010) Whether an alleged defect created an unreasonable risk of harm and a dangerous condition. a) Accident occurred on June 25, 1999. b) Court applied the 1988 MUTCD. c) MUTCD specific sections not identified. Holding that jury's finding that defects in the roadway did not present an unreasonable risk of harm was not manifestly erroneous or clearly wrong. Judgment for the Parish affirmed. For the Parish. Elmer v. Wisconsin County. Mut. Ins. Co., 800 N.W.2d 957 (Wis. Ct. App. 2011) Whether the County failed to erect proper signage at the construction site and failed to prepare a formal traffic control plan. a) Accident occurred on October 9, 2006. b) Court assumed that the 2003 MUTCD applied. c) MUTCD §§ 6C.01; 6C.04. Summary judgment for the County affirmed. For the County. Ford v. New Hampshire Dep’t of Transp., 37 A.3d 436 (N.H. 2012) Whether the New Hampshire DOT had a duty to provide an alternate operation of a traffic-control signal during a period of failure. a) Accident occurred on December 12, 2008. b) Court applied the 2003 MUTCD. c) MUTCD § 4D.02D. Affirmed the granting of the DOT’s motion to dismiss. For the DOT. Gunther v. State, 169 Wash. App. 1042 (Ct. App. 2012) Whether the State violated its duty to comply with the MUTCD’s requirements for a) Accident occurred on July 24, 2006. b) MUTCD edition not Held that the trial court erred in granting the State’s summary judgment motion; In favor of the Plaintiff.

53 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome bicycle lanes; whether the State had a general duty to act reasonably in making the roadway safe for ordinary travel; and whether the State breached that duty because the “drop-curb” was not flush with the pavement, thereby creating a “dangerous condition.” clearly stated or identified. c) MUTCD Figures 9C–1, 9C–3, and 9C–4. reversed and remanded. Ultimate outcome not known. Hankins v. Cleveland, 90 So. 3d 88 (Miss. Ct. App. 2011) Alleged improper signage and warnings and that the City and Delta State University (DSU) were negligent and failed to maintain proper roadway conditions and were negligent regarding design, maintenance, warnings, proper safety practices, proper traffic control devices, and signage at the crosswalk. a) Accident occurred on December 3, 2007. b) MUTCD edition not identified. c) MUTCD specific provisions not identified. Affirmed the dismissal of the case because defendants Delta State University and the City had immunity under the discretionary function exemption of the Mississippi Tort Claims Act. Affirmed summary judgment for DSU and the City. For the State (DSU) and the City Hodges v. Attala County, 42 So. 3d 624 (Miss. Ct. App. 2010) Survivors' wrongful death action alleged that warning signs/barriers were missing a) Accident occurred on May 16, 2007. Summary judgment for the County affirmed. For the County.

54 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome and that a construction company and the County were liable for failure to warn or protect against a known dangerous condition. b) MUTCD edition not identified. c) Specific provisions of the MUTCD not identified. Lampe v. Taylor, 338 S.W.3d 350 (Mo. Ct. App. 2011) Whether the City had knowledge that was acquired over a 5-year period prior to Lampe’s accident that there had been four other virtually identical collisions at the intersection and whether the City complied with MUTCD provisions regarding maximum signal visibility. a) Accident occurred on October 6, 2001. b) Court applied the 2001 “Millennium Edition” of the MUTCD. c) MUTCD specific provisions not identified. Jury verdict for plaintiff affirmed. For the Plaintiff Marsha v. Texas Dep’t of Transp., 2012 Tex. App. LEXIS 3857 (Tex. App. 2012) Alleged that TxDOT failed to remove high vegetation; failed to require private land- owner to remove the vegetation; and failed to designate the area as a no- passing zone. a) Accident occurred on July 9, 2008. b) MUTCD edition not identified. c) MUTCD § 3B.02. Trial court's order granting TxDOT's plea to the jurisdiction affirmed. For the DOT. McManus v. Yong Kun Kim, the State of Whether the DOT failed to properly erect a) Accident occurred on Summary judgment for the DOT affirmed. For WSDOT.

55 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome Washington, 2012 Wash. App. LEXIS 814 (Ct. App. 2012), review denied, 175 Wash. 2d 1019, 290 P.3d 994 (Wash., Oct. 30, 2012) and maintain traffic control devices at an intersection. August 25, 1990. b) Court applied the 1988 MUTCD. c) MUTCD § 1A–4. Minato v. King County, 170 Wash. App. 1052 (Ct. App. 2012), affirming, 2012 Wash. App. LEXIS 2360 (Wash. Ct. App., Oct. 1, 2012) Whether the County failed to post adequate signage to warn Cedar River Trail (CRT) users to reduce speed and to inform them of a curve’s severity. a) Accident occurred in October 2007. b) MUTCD edition not clearly stated or identified. c) MUTCD § 2B.01. Summary judgment for the County affirmed. For the County. Morales v. Davison Transp. Services, Inc. and Morales v. State of Louisiana, Dep’t of Transp. and Dev., 92 So. 3d 460 (La. Ct. App. 2012) Whether the DOTD is liable for improper signalization or road marking for mobile operations. a) Accident occurred on November 7, 2007. b) MUTCD edition not clearly stated or identified. c) MUTCD §§ 6G.01, 6G.02. Summary judgment for the DOTD affirmed. For the DOT. Pohl v. County of Furnas, 682 F.3d 745 (8th Cir. 2012) Whether the County violated its duty because a sign was not retroreflective and was placed too close to curve to warn nighttime drivers. a) Accident occurred in December 2007. b) Court applied the 2003 MUTCD. c) MUTCD § 1A.13(62) and Table 2C–4. Affirming the judgment of the district court apportioning 60 percent of negligence to the County and 40 percent to Michigan resident, resulting in award of $407,163.68 in damages. For the Plaintiff.

56 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome Sadler v. Dep’t of Transp. of Georgia, 311 Ga. App. 601, 716 S.E.2d 639 (Ga. Ct. App. 2011) Whether the Georgia Department of Transportation (GDOT) was negligent in failing to place a traffic signal at an intersection. a) Accident occurred in 2005. b) Court appears to have applied the 1988 MUTCD. c) MUTCD § 6F-1. Affirmed granting of GDOT’s motion to dismiss. For the DOT. Sexton v. Chicago, 976 N.E.2d 526 (Ill. App. 2012) Alleged that the City negligently failed to use a blank-out sign or a warning signal to alert drivers that they would be crossing a train track immediately after making a right turn. a) Accident occurred on February 10, 2004. b) Testimony that in 2004 the City had not officially adopted the MUTCD and had used it only as a reference tool. c) MUTCD § 8B.08 and other sections not specifically identified. Trial court’s entry of judgment N.O.V. in favor of the City affirmed. For the City. Skulich v. Fuller, 82 So. 3d 467 (La. Ct. App. 2011) Whether the DOTD failed to provide appropriate signs and traffic signals at an intersection that contributed to the accident. a) Accident occurred on June 24, 2004. b) MUTCD edition not clearly stated or identified. c) MUTCD §§ 2A.03, 2A.15, and 2A.16. Summary judgment for the DOTD affirmed. For the DOTD. Shipley v. Dep’t of Roads, 283 Neb. 832, 813 Whether the MUTCD required a) Accident occurred on June 5, 2005. Holding that the Manual describes the application of traffic For the Department of Roads.

57 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome N.W.2d 455 (Neb. 2012) pavement markings on roadways approaching a railroad crossing. b) Court applied the 2000 MUTCD. c) MUTCD §§ 1A.09 and 8B.16. control devices, but there is no legal requirement for their installation and that the decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment. Affirmed a summary judgment for Nebraska Department of Roads and Cass County. Shope v. Portsmouth, 2012 Ohio 1605 *P1 (Ohio Ct. App. 2012) Alleged that the City had a duty to place and maintain traffic control devices in accordance with the MUTCD but failed to do so on or around or at the end of the street in question. a) Accident occurred on October 18, 2008. b) Court applied the 2005 MUTCD. c) MUTCD §§ 2-C and 3-C. Holding that there was no liability because the placement of the signs in question was not mandatory and thus did not come within the scope of a “public road” as defined in the applicable statute. Reversed the judgment below and held that the trial court erred in denying Portsmouth's motion for summary judgment. For the City. Soni v. Township of Woodbridge, 2012 N.J. Super. Unpub. LEXIS 1621 (N.J. App. 2012) Alleged that the Township knew about flooding in an underpass during heavy rainfalls; that the Township should have closed the street on the date of the accident; and a) Accident occurred on April 15, 2007. b) MUTCD edition not identified. c) MUTCD sections not specifically identified. Summary judgment for the township reversed and remanded. For the Plaintiffs. Ultimate outcome not known.

58 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome the Township’s temporary traffic control and use of traffic cones did not comply with the MUTCD. Tarutis v. Seattle, 158 Wash. App. 1030 (Wash. Ct. App. 2010) Whether the City had no duty to plaintiff because it was not required by statute or otherwise to install a marked crosswalk. a) Accident occurred on February 17, 2005. b) MUTCD edition not clearly stated or identified. c) MUTCD specific provisions not identified. Summary judgment for the City denied. For the Plaintiff. Ultimate outcome not known. Texas Dep’t of Transp. v. Perches, 339 S.W.3d 241 (Tex. App. 2011), aff’d in part, rev’d in part, claim dismissed, 388 S.W.3d 652, 656 (Tex. 2012) Alleged with respect to plaintiffs’ negligence claim against the Texas Department of Transportation (TxDOT) that at the time of the collision the traffic signs, road signs, and signal/warning devices on the roadways approaching and on the Bicentennial Ramp were incorrect, improper, improperly placed, confusing, and a) Accident occurred on November 6, 2008. b) MUTCD edition not identified. c) MUTCD §§ 2C-09 and 2E-18. Holding that the department was not liable for the exercise of engineering judgment in placing signage and signals; that the department had exercised engineering judgment in placing the signage and signals at issue; that the MUTCD provisions at issue were not mandatory; and that there was no waiver of the transportation department’s immunity. Supreme Court of Texas reversed the appellate court’s affirmance of the trial court’s ruling that For the DOT.

59 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome generally failed to function as intended, of which TxDOT had actual and/or constructive notice. TxDOT had waived immunity. Truman v. Griese, 2009 SD 8, 762 N.W.2d 75 (2009) Alleged violation of the duty to install traffic control signs pursuant to state law. a) Accident occurred on February 13, 2004. b) Court applied the 2003 MUTCD. c) MUTCD §§ 2A.03, 2B.05, and 2B.08. Holding that the State had not waived sovereign immunity regarding any omission of signs that occurred during the initial engineering and design of Four Corners; that the MUTCD signage designs do not require direct adherence; that the MUTCD defers to engineering judgment and studies when making sign placement decisions; and that plaintiff failed to provide specific governing provisions from the MUTCD for intersections such as Four Corners. Court affirmed summary judgment for the defendants, including South Dakota Department of Transportation. For the State. Turner v. N.C. Dep’t of Transp., Whether failing to abide by the MUTCD’s a) Accident occurred on Affirmed the opinions and awards of the Full Commission. For the DOT.

60 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome 733 S.E.2d 871 (N.C. Ct. App. 2012) taper requirements for closing down traffic lanes was the proximate cause of a collision. December 29, 2004. b) MUTCD edition not clearly stated or identified. c) MUTCD §§ 2A.01, 2A.04. Walters v. Columbus, 2008 Ohio 4258 (Ohio App. 2008) a) Accident occurred on July 1, 2006. b) MUTCD edition not identified. c) MUTCD §§ 2B.05, 2B.09, 2B.34, and 2C.22. Holding that a guidance statement, for example, in Section 2B.05, STOP Sign Application, was discretionary; that a sign should be used if engineering judgment indicates that one or more of the listed conditions exists. Reversed the trial court’s denial of the City’s motion for summary judgment; Held that the City was entitled to immunity under R.C. § 2744.02(A). For the City. Warning v. Joliet, 974 N.E.2d 954, 2012 Ill. App. LEXIS 6872012 (App. Ct. 2012) Whether the crosswalk sign at the scene of the accident met MUTCD standards. a) Accident occurred on September 5, 2005. b) MUTCD edition not clearly stated or identified. c) MUTCD § 2B.03 and Table 2B-1. Affirmed trial court’s directed judgment in favor of the City. In favor of the City.

61 Case & Citation Claims a) Date of Accident; b) MUTCD Edition; and c) MUTCD Section(s) at Issue Decision Final Outcome Xiao Ping Chen v. Seattle, 153 Wash. App. 890, 223 P.3d 1230 (Wash. Ct. App. 2009) Whether the City breached its duty to maintain the crosswalk in a safe condition and whether the MUTCD required it to install additional safety measures at the crosswalk. a) Accident occurred in February 2007. b) MUTCD edition not clearly stated or identified. c) MUTCD specific provisions not identified. Summary judgment for the City reversed. In favor of the Plaintiff. Ultimate outcome not known. Yonkings v. Piwinski, 2011 Ohio 6232 *P1 (Ohio App. 2011) Alleged negligent, reckless, or wanton failure to timely repair or replace a downed stop sign or to otherwise warn motorists of the hazardous intersection presented. a) Accident occurred on July 2, 2007. b) MUTCD edition not identified. c) MUTCD §§ 2B.05 and 2B.05(a). Reversed the judgment of the trial court denying the Township’s and other defendants’/appellants’ motion for summary judgment, inter alia, as defendants were entitled to immunity. For the Township.