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

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

3 EFFECT OF MUTCD ON TORT LIABILITY OF GOVERNMENT TRANSPORTATION AGENCIES By Larry W. Thomas, The Thomas Law Firm, Washington, DC I. INTRODUCTION The Manual on Uniform Traffic Control Devices (MUTCD or Manual) has been at issue in many tort actions against transportation agencies by motorists, bicyclists, or pedestrians for a transpor- tation department’s alleged violation of one or more provisions of the Manual.1 The extent of a transportation agency’s tort liability differs from state to state because of the lack of uniformity of state tort claims acts and other relevant statutes and judicial interpretation of the same. Transpor- tation agencies thus need to be aware of the effect of the MUTCD on their potential liability in tort under their own state’s laws. The first MUTCD was published in 1935.2 Sub- sequent revisions appeared thereafter but “a com- pletely rewritten MUTCD premiered in 1971.”3 The 1971 version included definitions of shall, should, and may for the first time.4 The 1971 edi- tion and revisions thereafter were occurring at approximately the same time that state laws were being enacted, waiving sovereign immunity to a certain extent, which applied to the tort liability of transportation departments and other public entities. In virtually all states and localities, a tort claims act may permit a plaintiff to sue a public entity for negligence, subject, however, to certain limitations and exceptions.5 As discussed 1 The MUTCD is available at http://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd09r1r2 editionhl.pdf and is referred to hereafter as the “2009 MUTCD.” 2 Federal Highway Administration, The Evolution of MUTCD, available at http://mutcd.fhwa.dot.gov/kno- history.htm. 3 Id. 4 Id. 5 Some states such as Delaware and Wyoming still retain sovereign immunity in tort for highway func- tions. See Quickel v. New Castle County, 2002 Del. Su- per. LEXIS 173 (Super. Ct. Del., New Castle 2002) (dismissing action against the DOT because DEL. CONST. art. I, § 9 provides for sovereign immunity of the State that is an absolute bar to suit unless waived by the legislature); White v. State, 784 P.2d 1313 (Wyo- ming 1989) (upholding WYO. STAT. ANN. § 1-39-120, which provided immunity from suit for design, con- struction, and maintenance of highway and holding that WYO. CONST. art. 1, § 8 did not grant an uncondi- tional right to sue the State). WYO. STAT. ANN. § 1-39- in this digest, tort claims acts that apply to trans- portation departments and other public entities generally include a discretionary function exemp- tion to immunize public entities for alleged negli- gence when exercising their discretion. In addi- tion, a state’s tort claims act or other state statute may include additional exceptions to the liability of transportation departments. The 2009 edition of the MUTCD defines traffic control devices “as all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, bikeway, or private road open to public travel.”6 Even though they significantly affect traffic operations and safety, some highway design features are not specifically included in the Manual as traffic control devices, such as curbs, median barriers, guard rails, and speed humps.7 Sections I and II of the digest discuss the 2009 edition of the MUTCD. Section I discusses the meaning of key terms in the MUTCD that are mandatory, such as Standards, except to the ex- tent they are modified elsewhere in the Manual, and guidance and other statements that are not mandatory. Section I also analyzes some of the specific changes that the Federal Highway Ad- ministration (FHWA) made in the 2009 MUTCD and reviews Revisions 1 and 2 of the 2009 MUTCD, which FHWA adopted in 2012. Section II discusses the state transportation departments’ reaction to the 2009 edition, including revisions that the departments believe are beneficial to their ability to defend against tort claims, as well as those that they believe may result in increased tort liability. Section III analyzes the 2009 MUTCD’s effect on government tort liability, such as the Manual’s approval of the departments’ use of engineering 120, Exclusions from Waiver of Immunity, providing that: (a) The liability imposed by W.S. 1-39-106 through 1-39-112 does not include liability for damages caused by: (i) A defect in the plan or design of any bridge, culvert, high- way, roadway, street, alley, sidewalk or parking area; (ii) The failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or (iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, road- way, street, alley, sidewalk or parking area. 6 2009 MUTCD, supra note 1, at 1-1. 7 Id. § 1A.08, at 3.