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

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16 the department stated that “[t]here are also sec- tions in the Code of Virginia that establish spe- cific requirements for traffic signage.”164 The Wis- consin DOT’s response identified other statutes that are applicable to the department.165 On the other hand, six transportation depart- ments reported that there are statutes in their states that exempt the department from liability specifically for not providing certain highway fea- tures, such as signs, pavement markings, traffic signals, or other devices.166 For example, Iowa Code Section 668.10(1)(a) provides: 1. In any action brought pursuant to this chapter, the state or a municipality shall not be assigned a percentage of fault for any of the following: a. The failure to place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursu- ant to section 321.252. However, once a regulatory device has been placed, created, or installed, the state or mu- nicipality may be assigned a percentage of fault for its failure to maintain the device. Finally, 13 departments reported that there were no other state statutes that exempted the department from potential tort liability regarding their decisions on the use of traffic con- trol devices.167 tute a legal opinion nor represent the opinion of attor- neys for the agency.” 164 Id. 165 Response of Wisconsin DOT (citing WIS. STAT. § 86.06 (2012) (highways closed to travel; penalties); WIS. STAT. § 83.025(2) (2012) (county trunk system shall be marked and maintained by the county); Wis. Stat. § 84.03(1)(c) (2012) (stating that [o]n any highway, street or bridge hereafter constructed, re- constructed or improved with state or federal aid under this chapter, the location, form and character of informational, regu- latory and warning signs, curb and pavement or other mark- ings, and traffic signals installed or placed by any public author- ity or other agency shall be subject to the approval of the department; and the department is directed to approve only such installations as will promote the safe and efficient utiliza- tion of the highways, streets and bridges. WIS. STAT. § 84.106(3) (scenic byways program; marking of highways); and WIS. STAT. § 86.19(1) (2013) (highway signs, regulation, and prohibition)). 166 Responses of Indiana DOT; Iowa DOT (citing win- ter maintenance immunity (IOWA CODE § 668.101(1)(b)) and design immunity (IOWA CODE § 669.14(8)); Michi- gan DOT (citing MICH. COMP. LAWS § 691.1401, et seq. and common law); Nevada DOT (citing NEV. REV. STAT. ch. 41); Virginia DOT; and Wisconsin DOT. 167 Responses of Alabama DOT (noting that the de- partment has “sovereign immunity as an agency of the State”), Arkansas Highway and Transportation De- partment, Caltrans, Indiana DOT, Missouri Highway and Transportation Commission, Ohio DOT, Nebraska Department of Roads, New York State DOT, Oklahoma V. TORT CLAIMS AGAINST TRANSPORTATION DEPARTMENTS BEFORE AND AFTER THE 2009 MUTCD A. Claims After the 2009 MUTCD Nine state transportation departments that re- sponded to the survey reported that since the 2009 revision of the MUTCD they have had tort claims commenced against them that involved an alleged violation of the 2009 MUTCD.168 However, as noted in Section I.F of the digest, of 18 DOTs responding to the survey that have adopted the 2009 MUTCD or a state version in substantial conformance with the national MUTCD, many did not do so until 2011 and 2012. Consequently, there are not many cases involving the 2009 MUTCD in which there are reported decisions. Arkansas reported that it has had one case regarding improper placement of a sign during temporary construction or maintenance opera- tions that implicated Part 6 of the MUTCD, a case whose outcome the department only said had “favorable and unfavorable” aspects.169 Caltrans reported on two cases. In one case, the “plaintiff alleged there should have been a ‘Nar- row Bridge Ahead’ sign on a highway running along a cut slope, elevated from surrounding area and flanked on either side by [a] guardrail.”170 At issue was the 2009 MUTCD Section 2C.20, Nar- row Bridge Sign (W5-2). The case settled after the court denied Caltrans’ motion for summary judg- ment. In the second case, the issue was the 2006 California MUTCD, Section 2C.41, Pedestrian Warning Sign (W11A-2). Although the plaintiff alleged that the W54 pedestrian crossing signs placed in advance of the crosswalk were “deficient DOT, Pennsylvania DOT, Texas DOT, Utah DOT, and Washington State DOT. 168 Responses of Arkansas Highway and Transporta- tion Department, Caltrans, Kansas DOT, Iowa DOT, Indiana DOT, New York State DOT, Pennsylvania DOT (stating that the cases are numerous but that the de- partment does not have records to provide information on claims), Washington State DOT, and Wisconsin DOT. Nine departments reported that there had been no claims filed against the department since the 2009 revision. 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, Virginia DOT, and Utah DOT. 169 Response of Arkansas Highway and Transporta- tion Department. 170 Response of Caltrans.

17 and substandard,” the court granted Caltrans’ motion for summary judgment.171 Kansas reported that it has had: • Two cases that settled alleging that tempo- rary striping on an Interstate did not comply with Sections 3B.04, 6A.0l, 6F.77, and 6F.78 of the MUTCD. • Two cases decided in favor of the department alleging that a pilot car operation was not signed in accordance with Sections 6A.0l, 6F.58, and 6C.13 and the Notes and Figure for Section 6H-I0 of the MUTCD. • One case alleging that a railroad crossing was not signed according to unspecified sections of the MUTCD. The plaintiff dismissed the case with prejudice. • One case alleging that a divided highway in- tersection was neither signed nor striped in ac- cordance with as yet unspecified sections of the MUTCD. This case was still in the discovery phase. • One case alleging that a stop-controlled inter- section was not signed in accordance with as yet unspecified sections of the MUTCD. This case also was still in the discovery phase. None of the foregoing cases in Kansas has re- sulted in a reported decision. Indiana reported having cases that involved al- legations of negligent design, negligent mainte- nance, negligent signage, flooding, and signage blocked by vegetation, but provided no informa- tion on the number or outcome of the cases. At issue were MUTCD provisions on highway design, maintenance, and repair, as well as signing and grade intersection markings. Missouri reported that the department has “had more than 140 cases involving tort claims filed since 2009,” although apparently not necessarily arising under the 2009 MUTCD.172 Missouri does not track cases specifically by allegations of negligence be- cause what we normally see in pleadings is numerous al- legations of negligence, i.e., there was a dangerous condi- tion and the state failed to fix it or warn of it. Sometimes the allegation will specifically state that a EPG or MUTCD standard was violated, but many times the alle- gations in the petition are fairly general. 173 TxDOT stated that the department has not been sued “very much over MUTCD standards”; that the department does “see it being raised a lot in 171 Salas vs. Dep’t of Transp., 198 Cal. App. 4th 1058, 129 Cal. Rptr. 3d 690 (2011) (court’s opinion not men- tioning the MUTCD). 172 Response of Missouri Highway and Transporta- tion Commission. 173 Response of Missouri Highway and Transporta- tion Commission. lawsuits against our contractors in construction zone cases”; but that “[c]ontractors have immunity from liability under Texas Civil Practice and Remedies Code 97.002 (limit on liability of certain highway, road, and street contractors).”174 How- ever, the department also advised that the “TxMUTCD is specifically referenced in the con- tract documents as a controlling authority for traffic control devices and procedures, and we have seen Plaintiff’s counsel becoming very crea- tive in cherry picking clauses and general stan- dards to show [that] the contractor was NOT in compliance with the MUTCD.”175 The Washington State DOT reported that in its cases the plaintiffs’ allegations involved failure to sign properly or to install signal channelization, or involved curve warnings and sign placement. At issue in the cases were Chapter 2 and “chapter 4 warrants” of the 2009 MUTCD.176 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 al- legations.”177 None of the Wisconsin cases involv- ing the 2009 MUTCD had proceeded to trial as of the date of this digest. In addition to cases reported in response to the survey, a number of MUTCD cases were located that were filed or decided after the effective date of the 2009 MUTCD, although as indicated in Ta- ble A, only one decision located for the digest did not involve prior editions of the MUTCD. Thus, in an Idaho case, the plaintiff (Woodworth) was struck by a vehicle while pushing a shopping cart across a street in Nampa, Idaho, where there was no marked pedestrian crosswalk.178 Although the claim arose prior to the 2009 MUTCD, the court only cited to the 2009 edition, including revisions 1 and 2.179 The plaintiff alleged that the State was negli- gent because it failed to perform an engineering study at the location of the accident and “do what the study, if performed, would have shown to be necessary.”180 However, the Supreme Court of Idaho agreed with the district court and the State that the gravamen of the complaint was that the 174 Response of Texas DOT. 175 Response of Texas DOT. 176 Response of Washington State DOT. 177 Response of Wisconsin DOT. 178 Woodworth v. State, 154 Idaho 362, 298 P.3d 1066 (2013). 179 Id. at 366 n.4, 298 P.3d at 1070 n.4. 180 Id. at 364, 298 P.3d at 1068 (internal quotation marks omitted).