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

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11 III. STATE REACTION TO THE 2009 MUTCD A. Changes Identified as Being Potentially Beneficial Transportation departments were asked wheth- er there were changes in the 2009 MUTCD that may be beneficial in reducing tort claims or ver- dicts against the departments.94 Ten departments stated that there were some,95 but 11 departments stated that the 2009 MUTCD would not assist in reducing tort claims or liability.96 The departments that identified potentially beneficial changes in the 2009 MUTCD noted in particular Revisions 1 and 2 of the MUTCD. According to the California Department of Trans- portation (Caltrans), [t]he inclusion of some traffic control devices (and their policies) into the 2009 MUTCD…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 de- vices…aren’t necessarily new but…their inclusion in the MUTCD encourages uniformity. 97 Indiana’s response was that [R]evisions 1 and 2 to the 2009 MUTCD…will have the effect of reducing the potential for liability. With respect to revision 1, the 2011 Indiana MUTCD had its own defi- nition 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. 98 The Arizona DOT agreed that “[t]he changes in Revisions 1 & 2 modifying the definition of Stan- dard and the application of engineering judg- ment”99 are potentially significant in reducing the department’s tort liability with respect to the MUTCD. In its response, the Virginia DOT high- 94 Responses of Alabama DOT, Arizona DOT, Cal- trans, Indiana DOT, Kansas DOT, Nebraska Depart- ment of Roads, New York State DOT, Washington State DOT, and Wisconsin DOT. 95 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT. Kansas DOT, Nebraska De- partment of Roads, New York State DOT, Virginia DOT, Washington State DOT, and Wisconsin DOT. 96 Responses of Arkansas Highway and Transporta- tion Department, Iowa DOT, Nevada DOT. Ohio DOT, Oklahoma DOT, Michigan DOT, New Hampshire DOT, Pennsylvania DOT, Texas DOT, Utah DOT, and Virginia DOT. 97 Response of California (citing new warning signs included in ch. 2C). 98 Response of Indiana DOT. 99 Response of Arizona DOT. lighted the revision of Section 1A.13 regarding standards.100 Other departments noted changes as being potentially beneficial in reducing potential tort liability, including the clarification of the defini- tions of the terms Standard, Guidance, Option, and Support;101 the clarification of the relationship between those terms and the use of the terms shall, should, and may;102 the addition of sentence 05 in Section 2A.19 on lateral offset;103 and the clarification of horizontal alignment curve warn- ing signs.104 B. Changes Identified as Being Potentially Detrimental Thirteen transportation departments reported that in their opinion there were changes in the 2009 MUTCD that may result in an increase in tort liability of transportation departments.105 Of particular concern to the departments is the increase in the number of Standards and the more frequent use of the term shall in the Manual. The Indiana DOT stated that there are many new standards and guidance statements that increase the potential for liability.106 NYSDOT stated that “[r]igid standards provide a prima facie case of liability.”107 The Missouri Highway and Transpor- tation Commission stated that “[t]here are a lot more ‘shall’ conditions in the 2009 version than earlier versions,” a change that means that there is “less discretion in the field to use engineering judgment.”108 The Texas DOT also suggested that there will be an increase in claims because of 100 Response of Virginia DOT. The Virginia DOT’s re- sponse to the survey included a disclaimer stating that “[t]he responses provided to this survey do not consti- tute a legal opinion nor represent the opinion of attor- neys for the agency.” 101 Response of Nebraska Department of Roads. 102 Response of Nebraska Department of Roads. 103 Id. 104 Response of Alabama DOT (citing §§ 2C.05, 2C.06, 2C.07, and 2C.08, and tbls. 2C-4 and 2C-5). 105 Responses of Alabama DOT, Arizona DOT, Caltrans, Indiana DOT, Kansas DOT, Nebraska De- partment of Roads, New Hampshire DOT, New York State DOT, Ohio DOT, Texas DOT, Virginia DOT, Washington State DOT, and Wisconsin DOT. 106 Response of Indiana DOT (explaining that “INDOT has a substantial inventory of guardrail and the overwhelming majority of this guardrail is without delineators”). 107 Response of New York State DOT. 108 Response of Missouri Highway and Transporta- tion Commission.