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

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B-1 APPENDIX B—SUMMARY OF SURVEY RESPONSES OF TRANSPORTATION DEPARTMENTS 1. Has the 2009 revision of the Manual on Uniform Traffic Control Devices (MUTCD) been adopted in your state? Of 21 states responding to the survey, 18 states had adopted the 2009 MUTCD593 or in some instances adopted their state’s own version of the MUTCD. Of those departments stating that they had adopted the MUTCD seven states had adopted the MUTCD in 2012; five did so in 2011; and one adopted the MUTCD in 2010. Several states also noted that they had adopted a version that is in substantial compliance or confor- mance with the MUTCD.594 For example, Missouri reported that it developed an Engineering Policy Guide (EPG) that has been found to be in “substantial conformance” with the MUTCD by letter dated December 30, 2011, from the Federal Highway Administration. Substantial conformance means that the state MUTCD or supplement shall con- form as a minimum to the standard statements included in the National MUTCD. See 23 C.F.R. 655.603(b)(1). In Missouri, the Commission has not adopted the National MUTCD since 2001. 2. Since the 2009 revision of the MUTCD, nine state transportation departments reported that there had been tort claims filed against the department that involved an alleged violation of the MUTCD.595 Nine de- partments reported that there had been no claims filed against the department since the 2009 edition.596 Departments having claims were asked to provide information regarding the (a) plaintiff’s or plaintiffs’ al- legations; (b) provisions of the MUTCD that were at issue; (c) outcome of the case or cases; and (d) citations to any court decisions. Arkansas Arkansas reported that there had been one case regarding improper placement of a sign during tempo- rary construction or maintenance operations, which involved Part 6 of the MUTCD; a case whose outcome the department said had “favorable and unfavorable” aspects. 593 Responses of Arizona DOT (adopted on Jan. 13, 2012, as modified by the Arizona Supplement to the 2009 MUTCD, available at http://azdot.gov/docs/business/arizona-supplement-to-the-manual-on-uniform-traffic-control-devices-(2009- mutcd-edition).pdf); Arkansas Highway and Transportation Department (stating that the “Arkansas Highway Commis- sion, in 2004, formally adopted the latest edition of the MUTCD and all current and future updates, revisions or new editions approved by the FHWA”); Caltrans (Jan. 13, 2012); Washington State DOT (Dec. 19, 2011); Iowa DOT (reporting that the 2009 MUTCD has been adopted as administrative rule with exceptions. See 760 IOWA ADMIN. CODE 130.1); Kan- sas DOT (Dec. 16, 2011); Mich. DOT (adopted on Dec. 1, 2011, a Michigan version of the MUTCD that is in substantial compliance with the MUTCD); Nebraska Department of Roads (Apr. 26, 2012); Nevada DOT (citing NEV. REV. STAT. § 484A.430 and NEV. ADMIN. CODE § 408.144); New Hampshire DOT (Jan. 2012); New York State DOT (2010); Oklahoma DOT (Apr. 2, 2012); Pennsylvania DOT (Feb. 2012); Texas DOT (stating that its MUTCD, adopted on Dec. 8, 2011, is in “substantial compliance” with the 2009 national MUTCD); Wisconsin DOT (May 25, 2011); and Virginia DOT (Jan. 1, 2012). The Virginia DOT’s response to the survey included a disclaimer stating that “[t]he responses provided to this survey do not constitute a legal opinion nor represent the opinion of attorneys for the agency.” 594 Responses of Indiana DOT (stating that Indiana adopted “an Indiana version of the 2009 MUTCD in November 2011” that was revised in Oct. 2012); Ohio DOT; Michigan DOT; Missouri Highway and Transportation Commission (adopted an Engineering Policy Guide); Texas DOT; Utah DOT (stating that in Jan. 2012 the Utah MUTCD was found to be in substantial compliance with the national 2009 MUTCD); and Washington State DOT (stating that the MUTCD was “adopted with modifications” by the department on Dec. 19, 2011). 595 Responses of Arkansas Highway and Transportation Department, Caltrans, Kansas DOT, Iowa DOT, Indiana DOT, New York State DOT, Pennsylvania DOT (stating that the cases are numerous and that the department does not have records to provide information on claims), Washington State DOT, and Wisconsin DOT. 596 Responses of Alabama DOT, Michigan DOT, Nebraska Department of Roads, Ohio DOT (stating that it is not an “MUTCD state”), Oklahoma DOT, New Hampshire DOT, Texas DOT, Utah DOT, and Virginia DOT.

B-2 California Caltrans reported on two cases identified as cases A and B. In case A, the plaintiff alleged there should have been a “Narrow Bridge Ahead” sign on a highway running along a cut slope, ele- vated from surrounding area and flanked on either side by [a] guardrail. Plaintiff’s attorney apparently believed this made the area a bridge. Plaintiff sought to show Caltrans [was] liable based on non-compliance with the “appli- cable standards,” which were assumed to include the MUTCD. At issue in case A was Section 2C.20, Narrow Bridge Sign (W5-2). Caltrans’ motion for summary judg- ment was denied “when plaintiff’s expert declared the location did not meet unspecified ‘standards,’” which are assumed to include the MUTCD. The case was ultimately settled. There is no citation for case A. In case B the plaintiff “alleged [that] the W54 pedestrian crossing signs placed in advance of the cross- walk [were] deficient and substandard.” At issue was the 2006 California MUTCD, Section 2C.41, Pedes- trian Warning Sign (W11A-2). The court granted Caltrans’ motion for summary judgment.597 Kansas Kansas reported that it has had: • Two cases alleging that temporary striping on an Interstate did not comply with the MUTCD. • Two cases alleging that a pilot car operation was not signed in accordance with the MUTCD. • One case alleging that a railroad crossing was not signed according to the MUTCD. • One case alleging that a divided highway intersection was not signed nor striped accord- ing to the MUTCD. • One case alleging that a stop-controlled intersection was not signed in accordance with the MUTCD. As for the sections of the MUTCD that were at issue, Kansas explained that [t]he temporary striping on Interstate cases involved 6A.Ol, 6F.77, 6F.78 and 3B.04. The pilot car operation cases involved 6A.Ol, 6F.58, 6C.13, and Notes and Figure for 6H-I0. The plaintiff never made precise allegations concern- ing which MUTCD provisions were violated in the railroad crossing case. The cases involving the divided highway intersection and the stop controlled intersection have not reached the point in discovery where allegations concern- ing which MUTCD provisions were violated is known. As for the outcome of the cases, the cases involving the temporary striping on an Interstate were settled; the two cases involving a pilot car operation resulted in defense verdicts; the case involving traffic control at a railroad crossing was dismissed with prejudice by the plaintiff; and the remaining two cases are currently in litigation. None of the cases has resulted in any appellate decisions. 597 Salas vs. Dep’t of Transp., 198 Cal. 4th 1058, 129 Cal. Rptr. 3d 690 (Cal. App. 2011).

B-3 Indiana Indiana reported having cases that involved allegations of negligent design, negligent maintenance, neg- ligent signage, flooding, and signage blocked by vegetation. At issue were MUTCD provisions on highway design, maintenance, and repair, as well as signing and grade intersection markings. No other details were provided. Iowa Iowa has had an unspecified number of claims but reported there are as yet no appellate decisions. Missouri Missouri, on the other hand, reported that the department has had more than 140 cases involving tort claims filed since 2009. We do not track cases specifically by allegations of negligence because what we normally see in pleadings [making] numerous allegations of negligence, i.e., there was a dangerous condition and the state failed to fix it or warn of it. Sometimes the allegation will specifically state that [an] EPG or MUTCD standard was violated, but many times the allegations in the petition are fairly general. New York The New York DOT provided a list of cases (see Appendix A to the digest) that are “accessible through the New York Court of Claims.” The department noted that in general, New York law favors state actors when they are exercising discretion. Texas Texas stated that the department has not been sued “very much over MUTCD standards,” but that the department does “see it being raised a lot in lawsuits against our contractors in construction zone cases. Contractors have immunity from liability under Texas Civil Practice and Remedies Code 97.002” (limit on liability of certain highway, road, and street contractors). The department advised that the “TxMUTCD is specifically referenced in the contract documents as a controlling authority for traffic control devices and procedures, and we have seen Plaintiff’s counsel becoming very creative in cherry picking clauses and gen- eral standards to show [that] the contractor was NOT in compliance with the MUTCD.” Washington The Washington State DOT reported that in its cases the plaintiffs’ allegations involved failure to sign properly, failure to install signal channelization, curve warnings, and sign placement. At issue in the cases were Chapter 2 and “chapter 4 warrants.” The department reported that “most cases settle prior to trial be- cause of joint and several liability and the risk incurred by ‘should’ statements being perceived by juries as ‘shall’” statements. Wisconsin The Wisconsin DOT reported that [t]he state routinely receives notices of claim in which the plaintiffs allege some defect in signing, generally. Typically, specific provisions of the MUTCD are not cited as being applicable in the notice of claim and pleading stages of a case where we would have records of the specific MUTCD violation alle- gations.

B-4 In the case files we reviewed for purposes of responding to this survey, problem driver behavior ap- peared to be the cause of a crash. For example, in one case, a group of young men driving down an interstate decided to write notes on paper to induce a woman in a nearby car to call them. Digging around in the car for paper, the driver failed to notice a stopped semi truck on the highway and collided with the rear end of the truck at highway speed killing 3 of the 4 passengers. The plaintiffs have alleged that insufficient advance notice of construction on the highway caused their injuries/deaths. In another case a trucking company alleges that a bridge with clearance well above the 14’6” mini- mum for signing was struck by an oversized load on a truck that failed to follow its prescribed permit route. The trucking company alleges, incorrectly, that the bridge should have had clearance signing. This claim will probably include an evaluation of Section 2C.27 Low Clearance Signs (W12-2 and W12- 2a). Several other cases involve inattentive drivers who entered intersections without regard to stop or yield signs and [were] injured. They allege the signs were negligently installed or maintained. None of these cases have been advanced to trial at this point. 3. Transportation departments were asked whether in their opinion there were changes to the 2009 MUTCD that may be beneficial in reducing tort claims or verdicts against the department. Ten departments answered affirmatively,598 but 10 departments responded that the revised MUTCD would not be beneficial in reducing claims or verdicts against the department.599 One department did not respond to the question.600 Alabama Alabama stated that there could be a “[p]ossible reduction due to clarification of horizontal alignment curve warning signs,” citing Sections 2C.05, 26.06, 2C.07, and 2C.08, and Tables 2C-4 and 2C-5. Arizona Arizona stated that “[t]he changes in Revisions 1 & 2 modifying the definition of Standard and the appli- cation of engineering judgment are helpful.” California Caltrans reported that beneficial changes are [t]he inclusion of some traffic control devices (and their policies) into the 2009 MUTCD and subse- quently adopted by California [that] reduces tort liability when those devices have been prevalent and in use on the roadways but were not included in previous manuals nor accepted as official policy. The newly included devices falling into this category are the ones that aren’t necessarily new but FHWA through Synthesis studies identified them as most commonly used and their inclusion in the MUTCD encourages uniformity. For example, a number of new warning signs were included in Chapter 2C. 598 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT, Kansas DOT, Nebraska Department of Roads, New York State DOT, Virginia DOT, Washington State DOT, and Wisconsin DOT. 599 Responses of Arkansas Highway and Transportation Department, Iowa DOT, Nevada DOT, Ohio DOT, Oklahoma DOT, Michigan DOT, New Hampshire DOT, Pennsylvania DOT, Texas DOT, and Utah DOT. 600 Response of Missouri Highway and Transportation Commission.

B-5 Indiana Indiana also stated that revisions 1 and 2 to the 2009 MUTCD, issued in May of 2012, will have the effect of reducing the po- tential for liability. With respect to revision 1, the 2011 Indiana MUTCD had its own definition of Standard, but it is anticipated that the revised definition in the 2009 MUTCD will also help to support the agency’s position in a tort claim. As far as revision 2, the elimination of 46 compliance deadlines in the 2009 National (and 2011 Indiana) MUTCD will support the agency’s position in a potential tort claim concerning those traffic control devices where a specific compliance deadline was eliminated.601 Nebraska Nebraska stated that the 2009 MUTCD clarified the definitions of the terms “standard,” “guidance,” “op- tion,” and “support,” and clarified the relationship between these terms and the terms “shall,” “should,” and “may.” Also, the department said that the “[a]ddition of sentence 05 in Section 2A.19 is helpful.” Wisconsin Wisconsin noted that it had had “concerns with mandatory date of compliance provisions in the original 2009 MUTCD.” 4. Thirteen transportation departments reported that in their opinion there were changes to the 2009 MUTCD that may result in an increase in tort claims or verdicts against the departments.602 Alabama Alabama cited the “[r]quirement for increase in sign sizes and increase in letter heights which will in- crease costs.” Arizona Arizona’s response specifically identified the following: standards requiring 85th percentile speeds in ad- dition to other speeds; requirements for additional and larger regulatory signs at intersections; new stan- dards on minimum sign sizes; Table 2C.5 on mandatory curve signing; and requirements for added traffic signal faces. California In Caltrans’ view, the use of various horizontal alignment signs has been changed from option to a speed criteria which re- sults in some warning signs being recommended (as opposed to optional in [the] previous MUTCD) and others even [being] required (as opposed to optional in [the] previous MUTCD). In addition to these changes, warning signs in the field need to comply with this new policy by 2019. The ball-bank criteria used to determine comfortable speeds on curves has been changed to 12/14/16 changing and increasing warning speeds on curves with a potential for motorists to inadvertently go faster on the curve not knowing that the [change in criteria] increased the warning speed not any physical change on the roadway. This change is for criteria developed in 1930s and motorists have been accustomed to it since the 1930s. Before implementing this criteria, agencies will need public media outreach campaigns and education before making changes to signs on roadways. 601 Response of Indiana DOT. 602 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT, Kansas DOT (referring to its answer to ques- tion 3), Nebraska Department of Roads, New Hampshire DOT, New York State DOT, Ohio DOT, Texas DOT, Virginia DOT, Washington State DOT, and Wisconsin DOT.

B-6 Indiana Indiana stated that there are many new standards and guidance statements in the 2009 MUTCD that in- crease the potential for liability. The department said that “[o]ne example is the new guidance statement that guardrail have delineators. …INDOT has a substantial inventory of guardrail and the overwhelming majority of this guardrail is without delineators.” Kansas Kansas stated: Standard provisions that do not provide the specific traffic control to be provided should be elimi- nated. For instance, the provision of 6A.Ol (which has been in the manual for a number of versions) provides that “the needs and control of all road users shall be an essential part of highway construc- tion....” Thus, when a person is injured in the temporary traffic control zone, they always allege that their needs were not met and were not an essential part of the highway construction. 6A.0l doesn’t tell a highway agency how to sign a construction zone. Therefore, whether the provision has been violated or not is left to a jury. Missouri Missouri stated that “[t]here are a lot more ‘shall’ conditions in the 2009 version than earlier versions. Some of the engineers believe this is not helpful to our defense of lawsuits since we have less discretion in the field to use engineering judgment.” Nebraska Nebraska stated that the “[r]emoval of guidance from Section IA.09 stating that the manual should not be considered a substitute for engineering judgment eliminates an effective argument. Addition of minimum retroreflectivity could result in more tort claim or verdicts.” New Hampshire New Hampshire identified curve/turn sign standards and the requirement of a speed study for setting speed limits. New York New York stated that “rigid standards provide a prima facie case of liability.” Texas The Texas DOT said that it expected an increase in claims because of “[t]he substantial increase in the number of SHALL statements (44%).” Virginia As noted, the Virginia DOT’s response to the survey included a disclaimer stating that “[t]he responses provided to this survey do not constitute a legal opinion nor represent the opinion of attorneys for the agency.” Furthermore, the DOT’s response stated that “[w]ithout admitting potential liability or comment- ing on the validity of any claim, it is possible that the following could result in increased claims….” The MUTCD imposes specific compliance dates for various requirements/sections. (See 22nd para- graph, Introduction and Table I-2) By imposing specific compliance dates instead of allowing for flexi- bility in programmatic replacement of devices based on end of service life or engineering judgment, the

B-7 revised MUTCD could potentially result in meritless claims associated with a failure to meet specified deadlines, even when circumstances or situations would not necessarily warrant compliance by the specified date. For instance, see the compliance date of December 31, 2019 for Sections 2C.06 through 2C.14 (Horizontal Alignment of Warning Signs). Washington The Washington State DOT identified “the risk in shall statements/standards for lesser priority control elements; modification of retroreflectivity requirements; lack of ability to prioritize modifications in dra- matically reduced budget scenarios; [and] increasing requirements that have limited safety benefit, but can be construed by plaintiff’s expert as such.” 5. Twelve transportation departments reported that their agency had adopted a policy or statement of procedures to be followed concerning how the department’s employees or others acting on behalf of the de- partment (e.g., a contractor) are to comply with the MUTCD.603 Eight departments had not adopted such a policy or statement of procedures.604 Arizona According to Arizona, Construction projects that were designed under the requirements of the 2003 MUTCD contained pro- visions in their contract documents stating that the 2003 MUTCD applied to the execution of that pro- ject. Similarly, projects that were designed under the requirements of the 2009 MUTCD contained pro- visions in their contract documents stating that the 2009 MUTCD applied to the execution of that project. Other operations and maintenance activities switched over to the 2009 MUTCD as of the adop- tion date (January 13, 2012). Arkansas Arkansas reported that “[t]he Arkansas Highway and Transportation Department Standard Specifica- tions for Highway Construction Ed. 2003, Divisions 600 & 700, require contractor compliance with the MUTCD.” Missouri Missouri reported that “[a]s to our construction contractors and permit holders: http://www.modot.org/business/standards_and_specs/Sec0616.pdf” is applicable. The link is to Section 616.4.1 of the Missouri Standard Specifications (Temporary Traffic Control) and the section reads that “performance and operational aspects of the devices shall be in accordance with the latest edi- tions of the MUTCD.” Our internal employees are instructed to comply with the EPG. The National MUTCD and other national publications may also be used for guidance. Indiana Indiana reported that the following policies or practices encourage compliance with the MUTCD: 603 Responses of Arizona DOT, Arkansas Highway and Transportation Department, Iowa DOT, Indiana DOT, Michi- gan DOT, Nevada DOT (stating that the department complies with NEV. REV. STAT. § 484A.430 and NEV. ADMIN. CODE § 408.144), New York State DOT (citing Highway Design Manual), Ohio DOT, Texas DOT, Utah DOT, Virginia DOT, and Wisconsin DOT. 604 Responses of Alabama DOT, Caltrans, Kansas DOT, Nebraska Department of Roads, Oklahoma DOT, New Hamp- shire DOT, Pennsylvania DOT, and Washington State DOT (stating, however, that a policy or procedure was part of the department’s “standards/specifications/design manual”).

B-8 • The Indiana Design Manual (IDM) recommends that INDOT designers and our consultants refer to the MUTCD for proper selection and detailing of permanent and temporary traffic control devices. • Our standard electronic (excel based) program for performing traffic signal studies (warrant analy- sis) incorporates all the MUTCD warrant criteria. Our policy on signal study preparation and QA re- view requires output from this program and ties INDOT’s Traffic Engineering staff to compliance. The policy directly refers to [the] Indiana Code that incorporates the MUTCD. • INDOT’s Standard Construction Specifications incorporate the MUTCD with regard to temporary traffic control devices, signing, and pavement markings. So INDOT’s contractors are also obligated to comply. • INDOT’s Work Zone Traffic Control Guidelines provides requirements and recommendations for INDOT performed maintenance work. It is based on and refers to the MUTCD. Iowa Iowa referred to Sections 1107.09 and 2528.01 of the Iowa DOT Standard Specifications for Highway and Bridge Construction (2012). Michigan Michigan observed that state “law requires all highway agencies to follow the Michigan version of the MUTCD.” Texas Texas stated that “[e]xisting state law requires all traffic control devices to be compliant with the Texas MUTCD (Texas Transportation Code Section 544.002).” Wisconsin Wisconsin advised that “[r]eferences to applicable MUTCD provisions and other engineering standards are routinely incorporated into WisDOT policies and manuals. The MUTCD is specifically referenced in the manuals that are attached or linked” to the WisDOT Traffic Guidelines Manual, available at http://dotnet/dtid_bho/extranet/manuals/tgm/tgm.pdf. However, as for departments not having adopted a policy or statement of procedures: California Caltrans’ response was that there are not any specialized criteria developed by California. [The] California MUTCD relies on the definition, meaning, explanation and interpretation of the Standard, Guidance, Option, Support, substantial con- formance and compliance, including compliance dates set forth in the National MUTCD. [The] Califor- nia DOT does exercise authority under [the Cal. Vehicle Code] 21400 and 21401 to publicize the adop- tion of the new version of MUTCD[] every time it occurs. Kansas Kansas stated that it “does not have a policy or statement of procedures to be followed [on] how to comply with the MUTCD. KDOT does utilize a highway sign manual, which is based on the MUTCD, for mainte-

B-9 nance personnel. Additionally, highway design plans, construction contracts, and other highway use permits require that there be compliance with the MUTCD.”605 6. (a) Thirteen transportation departments reported that when decisions are made regarding whether to install, replace, or change a traffic control device at a given location or to do so as part of a highway safety plan the department keeps a record showing what the agency considered or evaluated prior to making a de- cision on the action to be taken.606 Four departments reported that such records are not kept,607 and four de- partments stated that whether to keep records depends on the circumstances or did not respond to the ques- tion.608 Agencies keeping records stated: Alabama Alabama reported that “[e]xamples of documentation include traffic warrant studies, speed studies, and design calculations.” California Caltrans stated that “[t]he evaluation, decisions and records should be documented in Traffic Investiga- tion Reports.” Indiana Indiana reported that: Changes in intersection control, parking restrictions, speed limits and lane control are documented through the Of- ficial Action (Executive Order) process. Requests for non-standard signs are accompanied by a description and need for the sign. Roadway Safety Audits (studies) on specific locations may lead to [a] change in traffic control devices— the reasoning will be given in a report. Some programmatic, state wide safety initiatives are undertaken after study—INDOT will have records for these initiatives. Other initiatives are undertaken based on recommendations and research findings done on a national level. Iowa Iowa referred to Sections 1107.09 and 2528.01 of the Iowa DOT Standard Specifications for Highway and Bridge Construction (2012). Kansas Kansas reported, “[a] traffic study or analysis with recommendations is completed. When KDOT’s design personnel are involved with traffic control changes, the appropriate department keeps records concerning the change.” 605 Response of Kansas DOT. 606 Responses of Alabama DOT, Caltrans, Indiana DOT, Iowa DOT, Kansas DOT, Michigan DOT, Missouri Highway and Transportation Commission, New York State DOT (stating that the project file reflects the basis for the decision), Oklahoma DOT, Pennsylvania DOT, Utah DOT, Virginia DOT, and Washington State DOT. 607 Responses of Arizona DOT, Arkansas Highway and Transportation Department, Nevada DOT, and New Hamp- shire DOT. 608 Responses of Ohio DOT, Nebraska Department of Roads (no response), Texas DOT, and Wisconsin DOT.

B-10 Michigan Michigan reported that “[i]f work is done per a contract, records regarding the development of the plans are maintained until the letting of the project. If work is done by State forces or a contract agency, the rea- son for the work is documented on the work order.” Missouri Missouri said that “[t]he engineers are encouraged to keep records of their engineering study or evalua- tion process. The only time they are required to keep record is part of our Fatal Crash Review process.” Pennsylvania Pennsylvania stated that “standard traffic engineering forms were developed. The forms document the rationale for installing, replacing, or changing” traffic control devices. Texas Texas observed that “[i]t depends upon the type of traffic control device and the status of the location. There is no requirement to keep records for all devices installed. Local offices do document this type of in- formation for justification purposes—especially traffic studies [and] signal warrants.” Utah Utah reported that “Traffic Studies are typically completed on these items. Also, Traffic Engineering Or- ders are established for some items.” Washington The Washington State DOT stated that “for traffic signs, WSDOT conducts nighttime sign reviews to de- termine if [a] sign lacks proper retroflectivity [or is] missing or damaged.” Wisconsin Wisconsin, on the other hand, explained that: “It depends. …If the decision requires an engineering study or evaluation, there may be documentation. If the decision simply involves application of agency standards, no documentation would be created. If an exception to standards is approved, documentation is required.” As for agencies not keeping records: Arizona Arizona stated that “[i]n general, no.” In limited situations where compliance with a Guidance or Standard is infeasible, documentation of a variance is sometimes provided on plans or drawings. For example, where the location of a warning sign cannot conform to Table 2C-4 (such as a W4-1 merge warning sign where the distance in the table would place it in advance of the exit ramp), a note is made in the plans of the variance.

B-11 (b) Fifteen Transportation departments also reported that when records are kept the department keeps a record of who made the decision and what the basis was for the decision.609 Other departments indicated that they do not keep a record of such information.610 Alabama Alabama noted that “[s]tudies and designs provided by consultants require a professional engineer stamp,” and that ALDOT has a Records Retention Policy. Arizona Arizona stated that “[p]lans typically have an engineer’s seal or other approval signature.” California Caltrans stated that “[t]he Traffic Investigation Reports should be signed by licensed engineers. The deci- sions should be based on the current standards, guidelines and engineering judgment.” Indiana In Indiana “[i]n general the documentation will show who made the decision or authorized [it] and why the decision was made.” The department’s “record retention period is 3 years although in many cases records will actually be kept for a longer period of time.” Kansas In Kansas the records maintained “contain the name of the individual or the department making the de- cision.” As for the retention period, it “varies according to retention and disposition schedules.” Michigan Michigan stated that its “records will indicate who the project manager was for the contract or who the authorizing person was if done by work order. The basis for decision, beyond meeting new requirements in the MUTCD, may not be documented.” Utah Utah reported that “[t]he traffic studies state the basis for the decision and are signed by the engineer.” Wisconsin Wisconsin explained that “[f]ormal decisions are not issued. Rather, the decisions would be documented in diaries, email messages, or other documentation in many instances.” Moreover, [i]f the decision requires an engineering study or evaluation, there may be documentation. If the de- cision simply involves application of agency standards, no documentation would be created, but the fact that a decision was made may be reflected in diaries, email messages, plans, or other documents. If an exception to standards is approved, documentation is required.611 609 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT, Iowa DOT, Kansas DOT, Michigan DOT, Mis- souri Highway and Transportation Commission, New York State DOT, Pennsylvania DOT, Texas DOT, Utah DOT, Vir- ginia DOT, Washington State DOT, and Wisconsin DOT. 610 Responses of Arkansas Highway and Transportation Department, Nevada DOT, Oklahoma DOT, and New Hamp- shire DOT. 611 Response of Wisconsin DOT.

B-12 (c) The number of years that such information is maintained varied from department to department, ranging from 3612 to 5,613 7,614 or 10615 years or for an unlimited time,616 but one department stated that re- cords are retained until reconstruction.617 The Arizona DOT reported that “[p]lans are retained indefinitely.” Iowa noted that the “traffic control daily diary is made part of the permanent project records.” The Virginia DOT’s response was that records are kept “[i]ndefinitely for speed limits and truck restrictions; [that the period] varies for other traffic studies, but three years is a typical limit, unless a different period is required under law or by the agency/state retention policies.” 7. (a) Eighteen transportation departments stated that in their state the department is potentially liable for failing to respond to a dangerous condition in connection with a highway or related facility involving a traffic control device when the agency has actual or constructive notice of the dangerous condition.618 Only three departments stated that they were not potentially liable under the aforesaid circumstances.619 Indiana The Indiana DOT stated that its state “established this policy via common law, not statutorily.” Nebraska Nebraska stated that “Neb Rev Stat § 81-8, 219(9) denies sovereign immunity if the condition is not cor- rected by the governmental entity within a reasonable time.” Nevada The Nevada DOT reported: Pursuant to NRS 41.033, no action may be brought against the State which is based upon: (a) A fail- ure to inspect any building, structure, vehicle, street, public highway, or other public work, facility, or improvement to determine any hazards, deficiencies, or other matters, whether or not there is a duty to inspect; or (b) A failure to discover such hazard, deficiency, or other matter, whether or not an inspec- tion is made. The department stated that there is Nevada case law holding that the State is immune from suit for negligence with respect to dangerous conditions of which it does not have notice. However, there also exists Nevada case law holding that the State’s immunity does not apply to a failure to act reasonably after learning of a hazard or to opera- tional functions, such as the duty to maintain a stop sign. 612 Response of Indiana DOT. 613 Responses of Oklahoma DOT (minimum of 5 years, then retained pursuant to the policies of the Oklahoma De- partment of Libraries); Texas DOT (“on average, records are kept for five years”); and Utah DOT (then “archived’). 614 Responses of Michigan DOT, Missouri Highway and Transportation Commission. and Wisconsin DOT. 615 Response of Caltrans. 616 Responses of Pennsylvania DOT (“infinity”) and Washington State DOT. 617 New York State DOT. 618 Responses of Alabama DOT; Arizona DOT; Arkansas Highway and Transportation Department; Caltrans (citing CAL. GOV’T CODE § 835); Iowa DOT; Missouri Highway and Transportation Commission; Nebraska Department of Roads; Ohio DOT; Oklahoma DOT (citing OK. STAT. tit. 51 § 155(15), and tit. 51, § 155(5)); New Hampshire DOT; New York State DOT; Pennsylvania DOT; Texas DOT (stating that “Texas Civil Practice and Remedies Code section 101.060 spe- cifically addresses the basis and extent of tort liability for Traffic Control devices and their initial placement and mal- functions once placed”); Utah DOT; Virginia DOT; Washington State DOT; and Wisconsin DOT. 619 Responses of Alabama DOT, Indiana DOT, and Michigan DOT.

B-13 New Hampshire New Hampshire stated that “there is limited liability, and sovereign immunity until notified of a defi- ciency, but we need to develop a plan to correct within 4 days.” Pennsylvania Pennsylvania stated that “case law requires highways to be kept reasonably safe for [their] intended, foreseeable use.” Virginia The Virginia DOT explained that [w]ithout admitting or denying that the agency would be liable in the situations described, …the Virginia General Assembly has chosen to waive the sovereign immunity of the Commonwealth only to the extent set forth in the Virginia Tort Claims Act, (see § 8.01-195.1 et seq of the Code of Virginia); otherwise sovereign im- munity is preserved. (b) Six departments reported that their departments have immunity when the agency allegedly fails to correct or give notice of a dangerous condition in connection with a highway or related facility involving a traffic control device,620 whereas eight departments reported that they did not have immunity in such cir- cumstances.621 Four departments did not respond specifically to the question but in some instances provided additional information as discussed below.622 Three departments did not answer this part of the question.623 For those responding that they did not have immunity but that provided additional information: Arkansas In Arkansas, the department has immunity in circuit court pursuant to Art. 5, § 20 of the Arkansas Con- stitution. However, the State Claims Commission has jurisdiction under Ark. Code Ann. 19-10-204 and could find liability “under these circumstances.” California Caltrans stated that it depends on the traffic control devices and cited Government Code Section 830.4 (failure to provide traffic control signals or signs); Government Code Section 803.6 (design immunity); and Government Code Section 803.8 (failure to provide traffic or warning signals). 8. Thirteen departments reported that under the law of their state, regardless of the provisions of the MUTCD, there is a statutory or judicially imposed duty to install or provide warning signs, pavement mark- ings, speed limits, traffic lights or other devices, barricades, or otherwise.624 620 Responses of Alabama DOT; Arkansas Highway and Transportation Department; Iowa DOT (citing IOWA CODE § 668.10(1)(a)); Michigan DOT (citing MICH. COMP. LAWS § 691.1407); Nebraska Department of Roads (stating that “Neb. Rev. Stat. § 81-8,219(9) denies sovereign immunity if the condition is not corrected by the governmental entity within a reasonable time”); Oklahoma DOT (citing OK. STAT. tit. 51, § 155(15) and tit. 51, § 155(5)). 621 Responses of Arizona DOT, Missouri Highway and Transportation Commission (citing MO. REV. STAT. 537.600), Ohio DOT. New Hampshire DOT, Pennsylvania DOT. Texas DOT, Utah DOT, and Washington State DOT. 622 Caltrans, Indiana DOT, New York State DOT, and Wisconsin DOT. 623 Kansas DOT, Nevada DOT, and Virginia DOT (referring to its answer to part (a) of the question). 624 Caltrans; Arkansas Highway and Transportation Department (citing ARK. CODE ANN. 27-65-107, (14), (16), and ARK. CODE ANN. 27-52-101, et seq.); Indiana DOT (citing IOWA CODE §§ 9-21-4-2, 9-21-3-4, 9-21-3-6, and 9-13-2-117 (defin- ing a traffic control device); Kansas DOT (citing KAN. STAT. ANN. § 8-2003, KAN. STAT. ANN. § 8-2004, and § 8-2005); Ohio DOT (citing OHIO REV. CODE §§ 4511.10, 4511.11, 4511.21, 4511.09, and 5501.31); Michigan DOT (citing the Michigan

B-14 California Caltrans stated that such a duty exists “[n]ot specifically, but in general,” and that “Street and Highway Code Section 27 impose[s] a general duty to maintain road in safe condition, but the specifics are left to the discretion of highway authorities….” Iowa Iowa reported that there are three exceptions to immunity for failure to place a traffic control device recognized in McLain v. State, 563 N.W.2d 600, 604 (Iowa 1997): (1) failure to maintain a device; (2) installation of a misleading sign; and (3) where the exigencies are such that ordinary care would require the State to warn of dangerous conditions by other than inanimate objects. New Hampshire New Hampshire advised there is potential liability regardless of the MUTCD “only for speed limits (RSA 265:60 for work zone speed limits, which is probably consistent with [the] MUTCD).” Virginia The Virginia DOT answered the question in some detail: Virginia statutes have been modified to address many requirements of the MUTCD and/or to adopt the MUTCD. The law is crafted to mirror or ensure non-conflict with the MUTCD and in some cases dictates use of signs, etc…. Overall, § 33.1-12 of the Code of Virginia generally provides the Common- wealth Transportation Board with the duty and authority to promulgate regulations governing traffic and pursuant to that statutory duty and authority the CTB has adopted a regulation adopting the MUTCD. (See 24 VAC 30-315-10.) In addition, § 46.2-830 of the Code of Virginia provides that the Commissioner of Highways may classify, designate, and mark state highways and provide a uniform system of traffic control devices for such highways under the jurisdiction of the Commonwealth and that such system of traffic control devices shall correlate with and, so far as possible, conform to the system adopted in other states. There are also sections in the Code of Virginia that establish specific requirements for traffic signage. For instance, there are requirements for speed limit signs when speeds depart from statutory default speeds. The list below may not be exhaustive but provides examples of statutes that set forth require- ments related to this question. The Virginia DOT provided citations to statutes concerning any duty with respect to speed limit signs that include Code of Virginia Sections 46.2-800.2, 46.2-804, 46.2-873, 46.2-873.1, 46.2-877, 46.2-878, 46.2- 878.2, 46.2-883, and 46.2-1300. As for the duty to install or provide warnings signs, barricades, and other Vehicle Code, MICH. COMP. LAWS 257.1, et seq. that “requires MDOT to place traffic control devices as it shall deem nec- essary,” and MICH. COMP. LAWS 257.609); Oklahoma DOT (only “Merge Now,” “Slow Traffic Right Lane,” “Speed Limits,” “School Zone Speed Limits,” and county road speed limits are county wide at department’s entry points); New Hamp- shire DOT; Pennsylvania DOT (stating that “case law requires highways to be kept reasonably safe for intended, forsee- able use (citing Snyder v. Harmon, 562 A.2d 307 (Pa. 1984)); Texas DOT (stating that “State law requires all traffic con- trol devices to be compliant with the Texas MUTCD (Texas Transportation Code Section 544.002”)); Virginia DOT; Washington State DOT (citing WASH. REV. CODE ch. 47.36.030); and Wisconsin DOT.

B-15 devices, the department referred to sections of the Code of Virginia “that may be somewhat responsive,” in- cluding Sections 33.1-210, 46.2-806, 46.2-1104, 46.2-1110, and 46.2-1312. Wisconsin Wisconsin provided a list of statutes and case citations, including Wisconsin Statutes Sections 349.065 (uniform traffic control devices); 86.06 (highways closed to travel); 83.025(2) (county trunk system shall be marked and maintained by the county); 84.03(1)(c); 84.106(3) (marking highways); and 86.19(1).625 Four departments responded that there was no such duty in their states.626 Two departments did not re- spond to the question but provided additional information.627 9. Seventeen transportation departments reported that before or after the 2009 MUTCD that they had not been involved in a case in which a court had ruled that a violation of the MUTCD constituted negligence per se.628 One department stated that it does not track this information.629 Iowa Iowa noted that “Gipson v. State, 419 N.W.2d 369, 371–72 (Iowa 1988) held that a violation of the MUTCD constitutes evidence of negligence rather than negligence per se.” Ohio Ohio’s response was “maybe” and cited case authority.630 The department explained, however, that “fail- ure to comply with a known ministerial duty, such as maintaining a stop sign, can result in liability. So, failure to replace a stop sign, for example, could lead to liability.”631 10. (a) Transportation departments were asked also to provide information regarding defenses that the departments have commonly asserted in cases brought against the department agency in which it was al- leged that there were violations of the MUTCD, either before or after the 2009 revision of the MUTCD. Fourteen departments responded as discussed below. Seven DOTs did not respond to the question or re- ported that they had no records on which to provide an answer.632 625 Response of Wisconsin DOT. 626 Responses of Alabama DOT, Missouri Highway and Transportation Commission, Nebraska Department of Roads, and Utah DOT. 627 Responses of Arizona DOT and New York State DOT. 628 Responses of Alabama DOT, Arkansas Highway and Transportation Department, Caltrans, Indiana DOT, Iowa DOT, Kansas DOT, Michigan DOT, Missouri Highway and Transportation Commission, Nebraska Department of Roads, New Hampshire DOT, Oklahoma DOT, Pennsylvania DOT, Texas DOT, Utah DOT, Washington State DOT, Virginia DOT (stating “[u]nknown but to the best of our knowledge there are no such cases), and Wisconsin DOT. 629 Response of Nevada DOT. 630 Wax v. Dep’t of Transp., 2001-Ohio-1856, 2001 Ohio Misc. LEXIS 59 (Sept. 26, 2001). 631 Response of Ohio DOT (citing Pavlik v. Kinsey, 81 Wis. 2d 42, 259 N.W.2d 709 (1977) (court concluding that a breach of a ministerial duty was inferred from the complaint’s allegations that the defendant state employees who set up a detour route on which the plaintiff was injured failed to follow national traffic standards, place appropriate signs, and safely construct a temporary road). 632 Response of Alabama DOT (not applicable); Arizona DOT (no response); Nevada DOT (department does not track this information); New Hampshire DOT (not applicable); New York State DOT (no response); Pennsylvania DOT (no records available); and Virginia DOT (referring generally to the Virginia Tort Claims Act, VA. CODE § 8.01-195.1, et seq.).

B-16 Arkansas Arkansas said that its defenses include that the “[c]laimant has a wrong interpretation [of] the MUTCD” and that “[t]he MUTCD section does not apply to the facts.” California Caltrans cited, in addition to the immunities set forth in response to item 7(b) of the survey, California Government Code Section 830.2 (“trivial risk” immunity). Indiana Indiana’s reported defenses were summarized as follows: (1) No Breach—we retain an outside expert and/or other INDOT engineers to testify [that the] MUTCD was followed or the deviation was based on reasonable engineering judgment. (2) ITCA immunities—namely, 20 year immunity and discretionary function. (3) Contributory negligence—We defend by saying even if it’s below standards and guidance in the MUTCD, Plaintiff contributed to the accident and is barred from recovery. Iowa Iowa cited traffic control device immunity in Iowa Code Section 668.10(1)(a). Kansas The response of the Kansas DOT identified a number of defenses that the department uses in MUTCD cases: • Kansas Tort Claims Act (KTCA) immunities regarding discretion and signing. • The comparative fault of plaintiff in the accident prohibits any recovery. • The alleged violation of the MUTCD was not the proximate cause of the accident. • There was no violation of mandatory MUTCD provisions (the discretionary exception to the KTCA). • The comparative fault of others in the accident that reduces KDOT’s exposure to liability. Michigan Michigan observed that “[n]o exception to governmental immunity applies.” Missouri Missouri also identified a number of defenses that it may raise: • The department’s compliance with the MUTCD. • There was no notice of the alleged dangerous condition.

B-17 • Engineering judgment was used and a decision based on engineering judgment called for something different than what was in the MUTCD. • Compliance with the EPG. Nebraska Nebraska’s defenses include: • Sovereign immunity exemptions in Revised Statutes of Nebraska 81-8, 219; • Contributory negligence. • Third-party negligence as an efficient intervening cause. Ohio Ohio’s response referred to the “discretion of the agency” and the “use of shall, should, may requirements of Ohio’s version of the MUTCD” as defenses to MUTCD claims. Oklahoma Oklahoma’s defenses include: • The department was not liable for a discretionary act. • There was no violation of the MUTCD. • The alleged violation of the MUTCD was not a proximate cause of the plaintiff’s injury. • The department is not liable for “failure to enforce the law.” Texas Texas advised that its defenses include the defense “that engineering judgment makes the decisions dis- cretionary,” and, therefore, the State is not liable. Utah Utah’s response stated that a primary defense is that the “standard of reasonable care was met.” Washington The Washington State DOT noted as defenses: • “[W]arrants are not [a] requirement for installation.” • “[P]roximate cause cannot be attributed to the traffic control device.” Wisconsin Wisconsin stated that “[t]ypically, challenges are made regarding discretionary design decisions.” De- fenses asserted in Wisconsin in MUTCD cases include:

B-18 • The provision alleged to be violated was guidance, not a Standard, and therefore was dis- cretionary, not mandatory. • The Manual is not a legal requirement to install any sign. • Including more than one warning sign in a given area is discretionary. • A diagram/picture is not a requirement. • The Manual does not obligate the department to create a traffic control plan. • The department’s actions substantially conformed to the Manual. • The cited provisions of the Manual are not mandatory. (b) Fifteen transportation departments reported on which defenses the departments have found to have been particularly successful from their point of view.633 Six DOTs did not respond to the question or reported that they had no records on which they could provide an answer.634 California Caltrans identified two statutes as being particularly important: “Design Immunities, Government Code Section 803.6 and Trivial Risk, Government Code 803.2.” Indiana Indiana stated that its most successful defenses have been that there was no breach of the Manual and contributory negligence. Kansas Kansas stated that the defenses that have been particularly successful from the agency’s point of view are: • Absence of proximate cause. • Comparable fault. The Kansas DOT observed that “[t]he MUTCD has too much gray area allowing plaintiffs to hire an ex- pert willing to testify that KDOT violated a provision of the MUTCD,” thus inhibiting KDOT’s success in using the discretionary and signing exceptions to the Kansas Tort Claims Act. Missouri Missouri identified two defenses in particular as being successful: • The department’s compliance with the EPG or MUTCD. 633 Responses of Alabama DOT (not applicable), Arizona DOT (no response), Nevada DOT (department does not track this information), New Hampshire DOT (not applicable), and Pennsylvania DOT (no records available). 634 Responses of Alabama DOT (not applicable), Arizona DOT (no response), Nevada DOT (department does not track this information), New Hampshire DOT (not applicable), New York State DOT (no response), and Pennsylvania DOT (no records available).

B-19 • The department’s lack of notice. Nebraska For Nebraska the most successful defenses are • Discretionary immunity. • Plan or design immunity. • Immunity for weather conditions. • There was an “efficient intervening cause.” New York New York identified the lack of notice and qualified immunity. Oklahoma Oklahoma stated that particularly successful defenses are: • There was “[n]o violation of [the] MUTCD” and/or • The alleged violation was not the “proximate cause of [the] injury.” Texas For the Texas DOT the defenses that are most successful are: • “The immunities afforded to the discretion inherent in engineering decisions and the decisions to implement devices.” • “[O]fficial immunity for individuals.” Utah Utah cited as its most successful defense the defense that the department met the required standard of reasonable care. Washington The Washington State DOT identified: • Lack of reasonable notice. • Insufficient time to correct the alleged deficiency. Wisconsin Wisconsin referred to its previous list of defenses as the most successful defenses.

B-20 11. (a) Eighteen transportation departments reported that their state has a tort claims act or similar leg- islation that applies to tort claims against the department.635 Three departments did not respond to the question.636 (b) Fourteen departments stated that their state tort claims act or similar legislation includes an exemp- tion from tort liability for a public entity’s performance of or failure to perform a discretionary function.637 Five departments stated that their state’s tort claims act did not include a discretionary function exemp- tion.638 Two departments did not respond to the question.639 12. (a) Six departments reported that in addition to a state claims act applicable to the department there were other applicable statutes that exempt the department specifically in regard to certain highway activities or responsibilities (e.g., installation of warning signs, pavement marking, speed limits, traffic lights or other devices, barricades, or otherwise).640 Thirteen departments reported that there were no other statutes that exempted the department regarding the foregoing highway activities or responsibilities.641 Kansas Kansas reported: KSA 68-416a(a) provides that on city connecting links, which are certain state highways within the corporate limits of a city, that if the city receives a certain amount per lane mile for maintenance, the city is responsible for all maintenance, except for route marking signs. Kansas statutes also provide that KDOT is responsible for the state highway system, and that other governmental entities are re- 635 Responses of Arkansas Highway and Transportation Department (citing ARK. CODE §§ 19-10-201, et seq.); Caltrans (citing CAL. GOV’T CODE §§ 810, et seq.); Indiana DOT (citing IND. CODE § 34-14-3); Iowa DOT (citing IOWA CODE, ch. 669); Kansas DOT (citing KAN. STAT. ANN. §§ 75-6101, et seq.); Michigan DOT (citing MICH. COMP. LAWS §§ 691.1401, et seq.); Missouri Highway and Transportation Commission (citing MO. REV. STAT. § 537.600); Nebraska Department of Roads (citing NEB. REV. STAT. § 81-8,2009); Nevada DOT (citing NEV. REV. STAT. ch. 41); New York State DOT (citing N.Y. Court of Claims Act and Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960)); Ohio DOT (citing OHIO REV. CODE §§ 2743, et seq.); Oklahoma DOT (citing OK. STAT. tit. 51, §§ 151-258); Pennsylvania DOT (citing 42 PA. CON. STAT. §§ 8521-8528); Texas DOT (citing TEX. CIV. PRAC. & REM. CODE, ch. 101); Utah DOT (citing UTAH CODE §§ 63G-7- 101 to 63G-7-904); Washington State DOT (citing WASH. REV. CODE, ch. 4.92); Virginia DOT (citing Virginia Tort Claims Act, VA. CODE § 8.01-195.1, et seq.); and Wisconsin DOT. 636 Responses of Alabama DOT, Arizona DOT, and New Hampshire DOT. 637 Responses of Caltrans (citing CAL. GOV’T CODE § 820.2 regarding discretionary acts); Indiana DOT (citing IND. CODE § 34-14-3-3(7)); Iowa DOT (IOWA CODE § 669.14(1); Kansas DOT (citing KAN. STAT. ANN. § 75-6104(e)); Nebraska Department of Roads (citing NEB. REV. STAT. § 81-8,219(1)); Nevada DOT (citing NEV. REV. STAT. ch. 41); New York State DOT (identifying qualified immunity for discretionary action and Weiss v. Fote, 7 N.Y.2d 579, 167 N.E.2d 63, 200 N.Y.S.2d 409 (1960)); Ohio DOT (citing OHIO REV. CODE § 2743.02 and the “public duty doctrine”); Oklahoma (citing OK. STAT. tit. 51, §155(5)); Texas DOT (citing TEX. CIV. PRAC. & REM. CODE § 101.056); Utah DOT (citing UTAH CODE § 63G-7- 301(5)(a)); Virginia DOT (citing VA. CODE § 33.1-70.1 and stating “[i]n limited circumstances”); Washington State DOT); Wisconsin DOT (WIS. STAT. § 893.80 “establishes the claims process against units of government, such as counties and municipalities, which maintain roads. WisDOT does not maintain the state highway system, we contract with counties to perform that work for the state”; noting that “Section 893.82 deals with claims against state employees who allegedly committed torts”; and stating that “Section 893.83 deals with local government liability for snow and ice removal. Again, the counties maintain WisDOT highways under a contract with WisDOT”). 638 Responses of Alabama DOT, Arkansas Highway and Transportation Department, Michigan DOT, Missouri High- way and Transportation Commission, and Pennsylvania DOT. 639 Responses of Arizona DOT and New Hampshire DOT. 640 Responses of Indiana DOT; Iowa DOT (citing winter maintenance immunity (IOWA CODE § 668.101(1)(b)) and de- sign immunity (Iowa Code § 669.14(8)); Michigan DOT (citing MICH. COMP. LAWS 691.1401, et seq. and common law); Nevada DOT (citing NEV. REV. STAT. ch. 41); and Wisconsin DOT. 641 Responses of Alabama DOT (noting that the department has “sovereign immunity as an agency of the State”), Ar- kansas Highway and Transportation Department, Caltrans, Indiana DOT, Missouri Highway and Transportation Com- mission, Ohio DOT, Nebraska Department of Roads, New York State DOT, Oklahoma DOT, Pennsylvania DOT, Texas DOT, Utah DOT, and Washington State DOT.

B-21 sponsible for other highways including signing on those highways, i.e. city streets, township roads, and county roads. Virginia The Virginia DOT’s response was that other statutes exempted the department in “limited circumstances” and cited relevant sections of the Virginia Code, including: Sections 33.1-70.1 (paving certain secondary roads); 46.2-920.1 (operation of tow trucks); 46.2-1212.1 (removal of vehicles/debris from accidents); 33.1-200 (paying for damages sustained to personal property by reason of work projects, etc.); and 33.1-381 (removal of certain signs by the Commissioner). Wisconsin Wisconsin explained that the “WisDOT is not required to enact regulations related to the placement of of- ficial signs or related to maintenance of highways. Under Wisconsin statutes, regulations are called, ‘rules,’ and highway signing and maintenance are exempted from general statutory requirements for agency activi- ties to be defined by regulations.”642 (b) Six transportation departments reported that there is a state statute that exempts the department from any claims involving the design of a highway or related features or facilities, i.e., a specific design im- munity statute.643 However, the remaining departments responding to the survey advised that the applica- ble law in their states did not include a specific statute providing for design immunity.644 13. (a) Transportation departments were requested to advise, assuming there is a state or local tort claims act that includes a discretionary function exemption, on how their courts interpret and/or apply the exemption in a case involving the MUTCD; for example, whether their courts follow the United States Su- preme Court’s interpretation of the Federal Tort Claims Act’s (FTCA) discretionary function exemption as developed in United States v. Dalehite645 (establishing the planning versus operational level dichotomy). Five departments reported that the courts in their state follow the Dalehite planning versus operational level di- chotomy;646 eight departments stated that their courts do not follow Dalehite;647 six departments said that the question was not applicable to the department;648 and two departments did not respond to the ques- tion.649 642 Response of Wisconsin DOT (citing WIS. CODE 227.01(13)). 643 Responses of Indiana DOT (citing IND. CODE §34-13-3-3(10) (granting immunity to a governmental entity in situa- tions where an independent contractor was performing a delegable duty); Iowa DOT (citing IOWA CODE § 669.14(8) (de- sign immunity)); Kansas DOT (citing KAN. STAT. ANN. § 75-6104(m)); Michigan DOT (citing MICH. COMP. LAWS 691.1401, et seq. and the common law); Nevada DOT (citing NEV. STAT., ch. 41); and Ohio DOT (citing OHIO REV. CODE 2743.02). 644 Responses of Alabama DOT, Arkansas Highway and Transportation Department, Missouri Highway and Trans- portation Commission, Nebraska Department of Roads, New York State DOT, Oklahoma DOT, Pennsylvania DOT, Texas DOT, Utah DOT, Washington State DOT, and Wisconsin DOT. 645 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), reh’g denied, 346 U.S. 841, 880, 74 S. Ct. 13, 117, 98 L. Ed. 362, 386, reh’g denied, 347 U.S. 924, 74 S. Ct. 511, 98 L. Ed. 1078 (1954). 646 Responses of Indiana DOT (citing Hanson v. County of Vigo, 659 N.E.2d 1123 (Ind. App. 4th Dist. 1996)); Iowa DOT; Nebraska Department of Roads; Oklahoma DOT (citing Nguyen v. State, 844 P.2d 1209 (Okla. 1994); Randell v. Tulsa ISD No. 1, 889 P.2d 1264 (Okla. 1994); Robinson v. City of Bartlesville Bd. of Educ., 700 P.2d 1013 (Okla. 1985); Walker v. City of Moore, 837 P.2d 876 (Okla. 1992)); and Washington State DOT. 647 Responses of Caltrans, Kansas DOT; Missouri Highway and Transportation Commission (no discretionary function exemption); Nebraska Department of Roads; Ohio DOT; Texas DOT (stating, however, that “although not cited, the same rationale has been applied to appellate opinions on § 101.056); Utah DOT; and Wisconsin DOT. 648 Responses of Alabama DOT (citing sovereign immunity), Arkansas Highway and Transportation Department, Michigan DOT, New York State DOT, Pennsylvania DOT, and Virginia DOT. 649 Responses of Arizona DOT and New Hampshire DOT.

B-22 (b) Only one department reported that its state courts may follow the United States Supreme Court’s in- terpretation of the discretionary function exemption in the FTCA in Indian Towing v. United States650 (hold- ing that discretion is exhausted once the planning-level decision is made).651 Eleven departments specifically responded that their state courts do not follow the Indian Towing precedent.652 Six departments stated that the question was not applicable to their department.653 Two departments did not respond to the question.654 (c) Four departments responding to the survey advised that in their state the courts now follow the United States Supreme Court’s decision in United States v. Gaubert655 (holding that immune discretion may be exercised at any level of decision-making unless there is a regulatory directive that does not allow for the exercise of discretion).656 Nine departments reported that their state courts did not follow the Gaubert deci- sion.657 However, Nebraska explained that “[t]he Dalehite and Gaubert holdings have been adopted in Ne- braska in the cases cited below, but they have not been directly cited in any case involving the MUTCD.”658 Six departments said that the decision was not applicable in their jurisdiction.659 Two departments did not respond to the question.660 Kansas Kansas reported that its courts “sort of” follow the Gaubert decision and advised: The Kansas discretionary exception applies “whether or not the discretion is abused and regardless of the level of discretion involved.” KSA 75-6104(e). The courts focus on whether the decision is one that the legislature intended to put beyond judicial review. The nature and quality of the discretion exer- cised is examined to determine if the exception applies. The closer the decision is to a policy decision the closer it is to being beyond judicial review. Iowa The Iowa DOT reported that the court in Metier v. Cooper, 378 N.W.2d 907, 910 (Iowa 1985) applied the planning/operational dichotomy and held [that] the placement of a deer crossing sign was not immunized by the discretionary function ex- ception. However, now the Iowa Supreme Court applies the two step analysis of Gaubert. See Schneider v. State, 789 N.W.2d 138, 147 (Iowa 2010) (flooding); Davison v. State, 671 N.W.2d 519, 521–522 (Iowa App. 2003) (highway maintenance). Indian Towing was quoted with approval in Schmitz v. City of Du- buque, 682 N.W.2d 70, 74 (Iowa 2004) (bike trail construction). 650 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). 651Response of Iowa DOT. 652 Responses of Caltrans; Indiana DOT; Kansas DOT; Missouri Highway and Transportation Commission (no discre- tionary function exemption); Nebraska Department of Roads; Ohio DOT; Oklahoma DOT; Texas DOT (stating, however, that “Appellate decisions have fine tuned a distinction between planning and implementation of discretionary acts”); Utah DOT; Washington State DOT; and Wisconsin DOT. 653 Responses of Alabama DOT (sovereign immunity), Arkansas Highway and Transportation Department, Michigan DOT, New York State DOT, Pennsylvania DOT, and Virginia DOT. 654 Responses of Arizona DOT and New Hampshire DOT. 655 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), on remand, 932 F.2d 376 (5th Cir. 1991). 656 Responses of Iowa DOT and Nebraska Department of Roads (but see explanation in the text of the digest). 657 Responses of Caltrans, Indiana DOT, Missouri Highway and Transportation Commission (no discretionary func- tion exemption), Ohio DOT, Oklahoma DOT, Texas DOT, Utah DOT, Washington State DOT, and Wisconsin DOT. 658 Response of Nebraska Department of Roads (citing Jasa by Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994), and First Nat’l Bank of Omaha vs. State, 241 Neb. 267, 488 N.W.2d 344 (1992)). 659 Responses of Alabama DOT (sovereign immunity), Arkansas Highway and Transportation Department, Michigan DOT, New York State DOT, Pennsylvania DOT, and Virginia DOT. 660 Responses of Arizona DOT and New Hampshire DOT.

B-23 Nevada Nevada advised that in Martinez v. Maruszezak, 123 Nev. 433, 446–47, 168 P.3d 720 (2007), the Nevada Supreme Court “examined NRS 41.032, and discretionary immunity and adopted the Federal Berkovitz- Gaubert Test applied in the matter of Berkovitz v. United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988).” This federal test is helpful in differentiating between true policy decisions protected by discretionary- act immunity and other unprotected acts. We therefore adopt the Berkovitz-Gaubert approach and clar- ify that to fall within the scope of discretionary-act immunity; a decision must (1) involve an element of individual judgment or choice and (2) be based on considerations of social, economic, or political policy. In this, we clarify that decisions at all levels of government, including frequent or routine decisions, may be protected by discretionary-act immunity, if the decisions require analysis of government policy concerns. However, discretionary decisions that fail to meet the second criterion of this test remain un- protected by NRS 41.032(2)’s discretionary-act immunity. 14. (a) The departments were asked whether in addition to or in lieu of a tort claims act the courts in their state rely on the proprietary-governmental test or distinction to determine a transportation depart- ment’s or other public agency’s tort liability. Only the Texas DOT responded affirmatively.661 Thirteen de- partments reported that the proprietary-governmental test or distinction to determine tort liability did not apply to their departments in their states.662 Three departments reported that the question was not applica- ble to their department.663 Two departments did not respond to the question.664 (b) Four departments reported that in their states the courts use the discretionary-ministerial test of immunity to determine a transportation department’s or other public agency’s tort liability.665 Nine depart- ments reported that the discretionary-ministerial test is not used in their states.666 Three departments ad- vised that the question was not applicable to them.667 Two departments did not respond.668 In responding to the question several DOTs provided additional information as follows: California Caltrans identified California Government Code Section 820.2 (discretionary immunity of employee) and California Government Code Section 815.2(b) (applies immunity of employee to the public entity). Kansas Kansas said that there are a number of judicial decisions in Kansas holding that the discretionary excep- tion does “not apply to a ministerial act.” 661 Although not responding yes or no to the question, the Texas DOT replied that the discretionary-ministerial test of immunity is applicable to cities but that “all State actions are presumed to be governmental functions.” 662 Responses of Caltrans, Indiana DOT; Iowa DOT, Michigan DOT, Missouri Highway and Transportation Commis- sion, Nebraska Department of Roads, Nevada DOT, Ohio DOT, Oklahoma DOT, Pennsylvania DOT, Utah DOT, Wash- ington State DOT, and Wisconsin DOT. 663 Responses of Alabama DOT (sovereign immunity), Arkansas Highway and Transportation Department; and Vir- ginia DOT. 664 Responses of Arizona DOT and New Hampshire DOT. 665 Responses of Caltrans; Oklahoma DOT (citing Walker v. City of Moore, 837 P.2d 876 (Okla. 1992)); Washington State DOT; and Wisconsin DOT. 666 Responses of Indiana DOT, Iowa DOT, Michigan DOT, Missouri Highway and Transportation Commission, Ne- braska Department of Roads, Nevada DOT, Ohio DOT, Pennsylvania DOT, and Utah DOT. 667 Responses of Alabama DOT (sovereign immunity), Arkansas Highway and Transportation Department, and Vir- ginia DOT. 668 Responses of Arizona DOT and New Hampshire DOT.

B-24 Missouri Missouri stated: “Our employees are protected by the official and discretionary immunity doctrines. How- ever, the agency is still responsible for the actions of the employees assuming they are working in the scope and course of their employment.” Wisconsin Wisconsin stated: In Wisconsin, the primary questions regarding liability will be “who made the decision” and “was the decision discretionary.” Fundamental highway design decisions are governmental decisions. Private consultants who prepare designs for states or municipalities are not held inde- pendently responsible for these governmental decisions and private engineering firms should not dictate the outcome of design decisions due to their risk management concerns. A leading case is Estate of Lyons v. CAN, Strand Associates and Waller, 207 Wis. 2d 448 (1996), peti- tion for review denied (March 11, 1997). In that case, the court adopted the following three- part test to determine when a decision is essentially that of [the] government rather than the contractor: 1. The government approved reasonably precise specifications; 2. The contractor’s actions conformed to those specifications; and 3. The contractor warned the supervising governmental authority about the possible dan- gers associated with those specifications that were known to the contractor but not to the governmental officials.