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.

12 “[t]he substantial increase in the number of SHALL statements (44%).”109 Other Standards and requirements in the MUTCD cited by the departments concerned the Standards that require 85th percentile speeds in addition to other speeds;110 the curve/turn sign Standards;111 the requirement of a speed study for setting speed limits;112 the “[a]ddition of minimum retroreflectivity,” which may result in increased tort liability;113 and the requirements for added traffic signal faces.114 Caltrans pointed out that the ball-bank criteria used to determine comfortable speeds on curves has been changed to 12/14/16, [thus] 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 warn- ing speed[,] not any physical change on the roadway. 115 Some of the provisions cited or reasons given by the defendants for their view that the 2009 MUTCD could potentially result in an increase in tort liability, as well as an increase in costs, con- cerned signing and types of signs: for example, the “[r]equirement for [an] increase in sign sizes and [an] increase in letter heights…will increase costs”;116 the requirements for additional and lar- ger regulatory signs at intersections;117 the new Standards on minimum sign sizes;118 Table 2C.5 on mandatory curve signing;119 and, as noted, the modification of retroreflectivity requirements.120 Caltrans pointed to the change in the “use of vari- ous horizontal alignment signs from [an] option to…speed criteria” that results in some warning signs being recommended, as opposed to being optional in the previous MUTCD, and others be- ing required, as opposed to being optional in the previous MUTCD.121 Caltrans also commented on the compliance dates in the Manual, such as “warning signs in the field [that] need to comply with this new policy by 2019.”122 The Washington State DOT commented on “the risk in shall statements/standards for lesser prior- 109 Response of Texas DOT. 110 Response of Arizona DOT. 111 Response of New Hampshire DOT. 112 Id. 113 Response of Nebraska Department of Roads. 114 Response of Arizona DOT. 115 Response of Caltrans. 116 Response of Alabama DOT. 117 Response of Arizona DOT. 118 Id. 119 Id. 120 Response of Washington State DOT. 121 Response of Caltrans. 122 Id. ity control elements.”123 The Kansas DOT stated that there are Standards included in the Manual that should be eliminated because they do not also provide for the specific traffic control to be provided.124 Kansas suggested that Section 6A.0l, which states that “the needs and control of all road users shall be an essential part of highway construction,”125 and Section 6A.0l, which does not “tell a highway agency how to sign a construction zone,” could result in juries being allowed to de- cide whether the sections had been violated in a particular situation.126 IV. THE 2009 MUTCD’S EFFECT ON GOVERNMENT TORT LIABILITY A. The MUTCD and the Use of Engineering Judgment One of the important features of the MUTCD is that it provides for the use of an engineering study or engineering judgment in determining whether and how to use a particular traffic con- trol device. Section 1A.09 sets forth the Standard and Guidance for the use of an engineering study and engineering judgment, terms that are defined in Section 1A.13. The MUTCD defines “Engineering Judgment” to mean “the evaluation of available pertinent information, and the application of appropriate principles, provisions, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, opera- tion, or installation of a traffic control device.”127 The definition states that “[e]ngineering judgment shall be exercised by an engineer, or by an indi- vidual working under the supervision of an engi- neer, through the application of procedures and criteria established by the engineer” and that “[d]ocumentation of engineering judgment is not required” (emphasis added).128 An engineering study is defined as “the compre- hensive analysis and evaluation of available pertinent information, and the application of ap- propriate principles, provisions, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic con- trol device.”129 Once more, the definition states that “[a]n engineering study shall be performed by an engineer, or by an individual working under 123 Response of Washington State DOT. 124 Response of Kansas DOT. 125 Id. 126 Id. 127 2009 MUTCD, supra note 1, at 14. 128 Id. 129 Id.

13 the supervision of an engineer, through the appli- cation of procedures and criteria established by the engineer” but that “[a]n engineering study shall be documented” (emphasis added).130 Of interest is that FHWA has stated that, with respect to Section 1A.09 regarding the use of an engineering study or engineering judgment, it has received comments that the existing Standard should be removed. The comments are that the Standard “is a general provision for all devices in the Manual that is inconsistent with numerous specific requirements elsewhere in the MUTCD that specific devices must be installed and [that] such requirements are ‘legal requirements.’”131 FHWA observed also that some have commented that the Standard “may not be consistent with the Guidance statement that immediately follows it.”132 Nevertheless, FHWA states that although it “agrees that this STANDARD statement is not easily understood by users of the MUTCD outside of the legal profession,” the Standard “has been the subject of important court interpretations re- garding the applicability of the MUTCD and has legal significance beyond its plain meaning.”133 The MUTCD’s allowance for the use of an engi- neering study or engineering judgment affects whether there is a basis for a transportation agency’s tort liability regarding its use of traffic control devices. For example, the Standard in Sec- tion 1A.09(02) states that the “Manual describes the application of traffic control devices, but shall not be a legal requirement for their installation.” Guidance provided in Section 1A.09(03)-(05) states: 03 The decision to use a particular device at a particular location should be made on the basis of either an engineer- ing study or the application of engineering judgment. Thus, while this Manual provides Standards, Guidance, and Options for design and applications of traffic control devices, this Manual should not be considered a substi- tute for engineering judgment. Engineering judgment should be exercised in the selection and application of traffic control devices, as well as in the location and de- sign of roads and streets that the devices complement (emphasis added). 04 Early in the processes of location and design of roads and streets, engineers should coordinate such location and design with the design and placement of the traffic control devices to be used with such roads and streets. According to a North Carolina court, the North Carolina DOT has established a policy whereby certain “triggering events” require an engineering study: 130 Id. 131 2009 Final Rule–MUTCD, supra note 29, at 66735. 132 Id. 133 Id. While the MUTCD and State law do not mandate when [an] engineering study should be conducted, the [DOT] follows its policy and procedure and conducts engineering studies as a result of specific triggering events. These triggering events include accident investigations where the facts indicate that road designs, signs, or other factors controlled by [the DOT] may be implicated, patterns of traffic accidents based on the severity as determined by the Highway Safety Improvement Program, individuals’ requests including those of law enforcement and those studies initiated by [the DOT] when it has reason to be- lieve a study is warranted. 134 The courts agree that the MUTCD defers to a transportation department’s exercise of engineer- ing judgment. In Truman v. Griese,135 involving an alleged violation of the duty to install traffic con- trol signs pursuant to state law (South Dakota Codified Laws (SDCL) § 31-26-6), the court stated that “[t]he State has not waived sovereign immu- nity or consented to suit for any omission of signs that occurred during the initial engineering and design of Four Corners.”136 The court further held that “the MUTCD signage designs do not require direct adherence. Instead, [the] MUTCD defers to engineering judgment and studies when making sign placement decisions.”137 Moreover, the plaintiff “failed to provide specific governing provisions from the MUTCD or any other stan- dard uniform traffic practice for intersections like Four Corners.”138 B. Mandatory Provisions of the MUTCD Prior cases involving the MUTCD have noted the importance of the use of the term shall, as the term signifies that a duty is mandatory. As dis- cussed by an Ohio court, there are situations in which the MUTCD imposes mandatory duties. The court explained that the Manual’s Section 2B.09 discusses several instances in which yield signs “may” be used instead of stop signs. However, the provision also states that a yield sign “shall be used to assign right-of-way at the entrance to a round- about intersection.” Regarding “DO NOT ENTER” signs, Section 2B.34 states that such sign “shall be used where traffic is prohibited from entering a restricted roadway.” Section 2B.37 states that except as noted in the “Option,” the “ONE WAY” sign “shall be used to indicate streets or roadways upon which vehicular traffic is allowed to travel in one direction only.” Similarly, Section 2C.22 provides that “Low Clearance” signs “shall be used to warn road 134 Turner v. N.C. Dep’t of Transp., 733 S.E.2d 871, 875, n.14 (N.C. 2012). 135 2009 SD 8, 762 N.W.2d 75 (2009). 136 Id. at 79. 137 Id. at 86 (referring to MUTCD §§ 2A.03 (Stan- dardization of Application), 2B.05 (STOP Sign Applica- tions), and 2B.08 (YIELD Sign Applications). 138 Id. at 82.

14 users of clearances less than 300 mm (12 in.) above the statutory maximum vehicle height.” (Emphasis added.) 139 In that case the court held that the stop sign at issue was not a traffic control device mandated by the Ohio MUTCD and that therefore the City was immune from tort liability.140 However, it must be noted that in construing a standard in the MUTCD, other provisions of the MUTCD may need to be considered in deciding whether a requirement is mandatory in a given situation. As a recent MUTCD case stresses, “[t]he effect of the word ‘shall’ may be determined by the balance of the text of the statute or rule.” …In an exami- nation of the text of SDCL 31-28-6, it is only when that public official in the exercise of his or her discretion determines that the public highway contains “any sharp turn, blind crossing or other point of danger on such highway” based upon “standard uniform traffic control practices” that he or she “shall erect and maintain…a substantial and conspicuous warning sign.” 141 In sum, consistent with the MUTCD and cases construing the MUTCD, the use of the word shall signifies that a duty under the Manual is manda- tory, but the triggering of the duty may depend on other findings or decisions that may be within the department’s discretion, based, for example, on the use of an engineering study or engineering judgment. C. Nonmandatory Provisions of the MUTCD Numerous courts have held that provisions of the Manual are not mandatory. For example, in a case in which it was alleged that the MUTCD requires pavement markings on roadways ap- proaching a railroad crossing, the court held that the Manual “describes the application of traffic control devices,” but there is no “legal require- ment for their installation.”142 Furthermore, “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 engineer- ing judgment.”143 Thus, a variation from the recommendations of the MUTCD may not necessarily create, for ex- ample, an “actionable ‘condition of sign’ claim” under state law.144 In a Texas case involving the design of an underpass and the placing of signage 139 Walters v. City of Columbus, 2008 Ohio 4258, at 22 (2008). 140 Id. at 23 (citing OHIO REV. CODE 2744.02(A)). 141 Truman, 762 N.W.2d at 82 (footnote omitted) (citation omitted). 142 Shipley v. Dep’t of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012). 143 Id. 144 Texas Dep’t of Transp. v. Perches, 339 S.W.3d 241, 249 (Tex. 2011) (citation omitted) (some internal quotation marks omitted). and signals, the court ruled that the transporta- tion agency was not liable.145 First, the depart- ment had exercised engineering judgment in placing the signage and signals, and, second, the MUTCD provisions at issue were not manda- tory.146 Consequently, there was no waiver of the transportation department’s immunity in alleg- edly having failed to comply with the MUTCD.147 On appeal the Supreme Court of Texas affirmed the court’s judgment that dismissed the plaintiffs’ claims under the Texas Tort Claims Act. The court also reversed the decision that held that the department did not have immunity for the plain- tiffs’ special defect claim. Under the facts of the case, the plaintiffs’ collision with a concrete guardrail did not come within the meaning of the special defect exception, as construed by Texas courts, to the department’s immunity.148 Other courts have found that provisions of the MUTCD in particular cases are nonmandatory.149 In a Louisiana case, the court rejected an argu- ment that the MUTCD that was followed by the parish’s traffic engineer “mandates that traffic control devices must give adequate time for the driver to properly respond.”150 In a New Hampshire case, the court ruled that Section 4D.02 of the 2003 MUTCD on responsibil- ity for operation and maintenance did not estab- lish a mandatory duty.151 The section included guidance that provided: Prior to installing any traffic control signal, the responsi- bility for the maintenance of the signal and all of the ap- purtenances, hardware, software, and the timing plan(s) should be clearly established. The responsible agency should provide for the maintenance of the traffic control signal and all of its appurtenances in a competent man- ner. To this end the agency should: … D. Provide for alternate operation of the traffic control signal during a period of failure, using flashing mode or manual control, or manual traffic direction by proper authorities as might be required by traffic volumes or congestion, or by erecting other traffic control devices. 152 145 Id. 146 Id. at 252–53 (citations omitted). 147 Id. (citations omitted). 148 Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 656 (Tex. 2012). 149 Truman, 762 N.W.2d at 82; Daigle v. Parish of Jefferson, So. 3d 55, 61–62 (La. 2009); Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 37 A.3d 436, 447 (2012); Nealon v. City of Omaha, 2009 Neb. App. LEXIS 63, at 9 (2009). 150 Daigle, 30 So. 3d at 61–62. 151 Ford, 163 N.H. at 296, 37 A.3d at 447. 152 Id. at 296, 37 A.3d at 446.

15 The court held that “[t]he plain language of this section does not create a mandatory duty. ‘[W]hile the word ‘shall’ establishes a mandatory duty, the word ‘should’ requires [the DOT] to use its discre- tion and…judgment.’”153 The court held that “[t]he MUTCD provision upon which the plaintiff relies is ‘Guidance,’ and is, ‘therefore only a recom- mended practice, not a mandate upon government decision makers.’”154 In a Nebraska case, the court held that the MUTCD did not require the City to provide pedes- trian signals at the intersection where the acci- dent occurred.155 In Ohio the courts have held that “the term ‘public roads’ as defined by Ohio statute does not include…traffic control devices unless the traffic control devices are mandated by the Ohio [MUTCD].”156 In that case the stop sign was not mandated by the Manual.157 D. Transportation Departments’ Obligations Under Other State Statutes In addition to the MUTCD, other state statutes may apply to the tort liability of transportation departments. Thirteen of 21 departments re- sponding to the survey reported that under the law of their state, regardless of the MUTCD, there is a statutory or judicially imposed duty to install or provide signs, pavement markings, traffic sig- nals, or other traffic control devices.158 The stat- 153 Id. at 447 (citing Dunlap v. W.L. Logan Trucking Co., 161 Ohio App. 3d 51, 2005 Ohio 2386, 829 N.E.2d 356, 361 (Ohio Ct. App. 2005) (interpreting Ohio’s man- ual); Lawton v. City of Pocatello, 126 Idaho 454, 461, 886 P.2d 330, 337–38 (1994) (interpreting earlier ver- sion of MUTCD); and Johnson v. Agency of Transp., 180 Vt. 493, 494, 904 A.2d 1060, 1063 (2006) (only MUTCD “Standards” are binding on Vermont’s Agency of Trans- portation). 154 Ford, 163 N.H. at 297, 37 A.3d at 447 (quoting Dane County v. O’Malley, 2008 WI App 121, 313 Wis. 2d 524, 756 N.W.2d 479, 2008 Wis. App. LEXIS 481, at 6 (Wis. Ct. App. June 19, 2008)). 155 Nealon v. City of Omaha, 2009 Neb. App. LEXIS 63 at 9 (Neb. Ct. App. 2009). Interpreting § 4D-3 of the MUTCD, the court held further: The plain language of subsection 4D-3(3) of the manual states that pedestrian signal indications are required when traffic lights are not visible to pedestrians or are not in a position that would adequately serve a pedestrian. We conclude that this en- tire subsection refers to the physical location and positioning of a traffic signal, rather than the particular settings of an indi- vidual traffic signal. The “position” of a traffic signal is most clearly read to refer to the signal’s location. Id. at 12–13. 156 Yonkings v. Piwinski, 2011 Ohio 6232 at 22 (2011). 157 Id. See also Shope v. City of Portsmouth, 2012 Ohio 1605, at 22 (2012). 158 Responses of Caltrans; Arkansas Highway and Transportation Department (citing ARK. CODE ANN. utes, however, must be consulted to ascertain the scope of any duty and any exceptions. For exam- ple, California Street and Highway Code Section 27 “impose[s] a general duty to maintain roads in safe condition, but the specifics are left to the dis- cretion of highway authorities.”159 In Iowa, as rec- ognized in McLain v. State,160 there are three exceptions to immunity for failure to place a traffic control device: “(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.”161 The New Hampshire DOT advised that under its state code there is potential liability “only for speed limits (RSA 265:60 for work zone speed lim- its) that is probably consistent with [the] MUTCD).”162 The Virginia DOT reported that “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.”163 Furthermore, §§ 27-65-107 (14) and (16) and § 27-52-101, et seq.); Indiana DOT (citing IND. CODE §§ 9-21-4-2, 9-21-3-4, 9- 21-3-6, and 9-13-2-117 (defining a traffic control device)); Kansas DOT (citing KAN. STAT. ANN. §§ 8-2003, 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 Michigan Vehicle Code, MICH. COMP. LAWS 257.1, et seq. that “requires MDOT to place traffic control devices as it shall deem necessary” and MICH. COMP. LAWS 257.609); Oklahoma DOT (only “Merge Now,” “Slow Traffic Right Lane,” “Speed Lim- its,” “School Zone Speed Limits,” and county road speed limits county-wide at department’s entry points); New Hampshire DOT; Pennsylvania DOT (stating that “case law requires highways to be kept reasonably safe for intended, forseeable use (citing Snyder v. Harmon, 562 A.2d 307 (Pa. 1984)); Texas DOT (stating that “[s]tate law requires all traffic control 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 Wis- consin DOT. Four departments responded that there was no such duty in their states. Responses of Alabama DOT, Missouri Highway and Transportation Commis- sion, Nebraska Department of Roads, and Utah DOT. Two departments did not respond to the question but provided additional information as set forth in App. B. Responses of Arizona DOT and New York State DOT. 159 Response of Caltrans. 160 563 N.W.2d 600, 604 (Iowa 1997). 161 Response of Iowa DOT. 162 Response of New Hampshire. 163 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-