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.

18 claims arose out of the plan or design for the con- struction or improvement of a state highway for which the State had immunity under the Idaho Tort Claims Act.181 The court stated, however, that “although immunity under I.C. § 6-904(7) is broad and long lasting, it does not absolutely bar negli- gence claims related to the plan or design of a State highway where the plaintiff can point to a specific statute or a mandatory provision of the MUTCD that has been violated.”182 But the court held that the plaintiff did not provide any support for his claim that the State had a duty to perform a study or was negligent in failing to perform an engineering study. After careful examina- tion of the Idaho Code and MUTCD provisions cited by Woodworth the only provision that mentions an engineer- ing study is § 2C.01.01 of the MUTCD. Section 2C ad- dresses "Warning Signs and Object Markers," and sub- part .01 states "[t]he use of warning signs shall be based on an engineering study or on engineering judgment." However, § 2C.01 does not create any duty to conduct an engineering study, it merely requires that an engineering study or engineering judgment be used in the event warn- ing signs are erected. 183 Thus, the court affirmed the district court’s grant of summary judgment for the State in rul- ing that Woodworth failed to show that the State had been negligent in its failure to conduct an en- gineering study at the location of the accident. Lastly, in any event, the State’s High Accident Location monitoring program fulfilled any duty that the State had to Woodworth to improve and maintain its highways.184 Including the Idaho case with the cases reported by the states in response to the survey, admit- tedly a very small sample of cases, and omitting cases that were settled, there are six cases involv- ing the 2009 MUTCD for which information could be obtained as of the time of this digest. Of the six cases, it appears that five resulted in decisions favorable to the transportation departments (83 percent), with one decision partly favorable to the plaintiff. B. Tort Claims Prior to the 2009 MUTCD Table 1 is a sampling of cases and outcomes for the period January 2010 to April 2014 involv- ing the 2003 or earlier editions of the MUTCD. Of the 30 cases included in Table 1, 8 (79 percent) were decided in favor of the transportation departments. Table 2 is a list of MUTCD cases and outcomes decided between 2005 and 2012 that was provided by NYSDOT in response to the survey. Of 27 cases 181 Id. at 364, 298 P.3d at 1068 (citing IDAHO CODE, § 6-904(7)). 182 Id. at 366, 298 P.3d at 1070. 183 Id., 154 Idaho at 367, 298 P.3d at 1071. 184 Id. included in Table 2, 20 (or 74 percent) were decided in favor of the department. Once more, the two tables consist only of a sam- pling of very recent cases for which there is a known result, including unreported or nonpub- lished opinions. Nevertheless, the two tables, plus the previous six cases discussed in Section V.A, comprise a total of 62 cases. Of course, it is not known how many cases were decided without an opinion, settled, or otherwise withdrawn or dismissed. VI. THE MUTCD AND TORT LIABILITY OF TRANSPORTATION DEPARTMENTS A. Liability Under Tort Claims Acts Other articles have discussed in detail the tort liability of transportation departments.185 The principles of tort liability will be discussed hereaf- ter only to the extent that they are relevant to the defense of MUTCD cases. However, to summarize briefly, because of the doctrine of sovereign im- munity, either at common law or by reason of a state constitutional or statutory provision, trans- portation departments and other public entities were historically protected from tort liability. Municipal corporations were usually liable only for negligence in the performance of their proprie- tary functions—activities for which a fee was charged—but not for the performance of their governmental functions, such as providing and maintaining streets and highways. By the 1960s and 1970s, most state legislatures had enacted some form of a tort claims act, some- times in response to the judicial abrogation in the state of sovereign immunity.186 The tort claims acts that were enacted may apply to the state as well as counties and municipalities, or there may be separate legislation applicable to the tort li- ability of units of local government.187 Seventeen of 21 transportation departments that responded to the survey reported that their state has a tort 185 LARRY W. THOMAS, TORT LIABILITY OF HIGHWAY AGENCIES (National Cooperative Highway Research Program, Selected Studies in Transportation Law, Vol. 4, 2003), hereinafter referred to as “THOMAS.” 186 RICHARD JONES, RISK MANAGEMENT FOR TRANSPORTATION PROGRAMS EMPLOYING WRITTEN GUIDELINES AS DESIGN AND PERFORMANCE STANDARDS (National Cooperative Highway Research Program, Legal Research Digest No. 38, 1997), hereinafter re- ferred to as “JONES.” 187 See, e.g., the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILL. COMP. STAT. 10/3-104 (2013).

19 claims act or similar legislation that applies to claims against the department.188 B. Extent of the Waiver of Government Tort Immunity The liability of a public entity in tort varies from state to state depending on the extent to which the state legislature has waived immunity, as well as on the courts’ interpretation of the ap- plicable legislation.189 Numerous cases have in- volved the MUTCD and whether under the cir- cumstances there was a waiver of governmental immunity. Even in states that permit a plaintiff to sue a public entity for negligence, there may be exceptions, exemptions, and exclusions. For ex- ample, the Illinois Local Governmental and Gov- ernmental Employees Immunity Act has “an ex- tensive list of immunities based on specific governmental functions.”190 As observed by the North Carolina court in Turner, supra, the DOT may be sued for negligence only as provided in the tort claims act.191 In states in which there is a waiver of sovereign immunity to some extent for tort claims, because such legislation is in derogation of the common law, typically the courts strictly construe the leg- islation. An example of strict interpretation is Nawrocki v. Macomb County Road Commission,192 188 Responses of Arkansas Highway and Transporta- tion Department (citing ARK. CODE § 19-10-201, et seq.); Caltrans (citing CAL. GOV’T CODE, § 810, et seq.); Indi- ana 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. CONS. STAT. §§ 8521-8528); Texas DOT (citing TEX. CIV. PRAC. & REM. CODE, ch. 101); Utah DOT (citing UTAH CODE §§ 63G-7-101–7-904); Washington State DOT (citing WASH. REV. CODE, ch. 4.92); and Wisconsin DOT. Three departments did not respond to the ques- tion. Responses of Alabama DOT, Arizona DOT, and New Hampshire DOT. 189 JONES, supra note 186. The digest concludes that the largest number of states fall into the category of having abrogated immunity in a substantial or general way. 190 Sexton v. City of Chicago, 976 N.E.2d 526, 540 (2012) (some internal quotation marks omitted). 191 Turner v. N.C. DOT, 733 S.E.2d 871, 874 (2012). 192 463 Mich. 143, 615 N.W.2d 702 (2000). in which the Supreme Court of Michigan held that “prior decisions of this Court…improperly broad- ened the scope of the highway exception” to gov- ernmental immunity.193 The court held that it was “duty bound to overrule past decisions that depart from a narrow construction and application of the highway exception.”194 In reinterpreting the high- way exception to immunity in the Michigan stat- ute, the court ruled that a pedestrian stated a claim when alleging “that she was injured by a dangerous or defective condition of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)195 However, the high- way exception did not mean that “the state or a county road commission [had] a duty to install, maintain, repair, or improve traffic control devices, including traffic signs.”196 The court stated that the highway exception did not give rise to duties, even as to “integral parts of the highway” that are “outside the actual roadbed, paved or un- paved, designed for vehicular travel.”197 The court held that “[t]raffic device claims, such as inade- quacy of traffic signs, simply do not involve a dan- gerous or defective condition in the improved por- tion of the highway designed for vehicular travel.” (Emphasis added.)198 The court acknowledged, however, that there are other Michigan statutes that impose a duty separate from the highway exception for the installation, maintenance, repair, or improvement of traffic signs.199 Nevertheless, the statutes pro- vide that the state and local authorities are to perform these duties as they “deem necessary.”200 The court held that the phrase “deem necessary” “is the language of discretion, not the imposition of a duty, the breach of which subjects the agen- cies to tort liability—as opposed, perhaps, to political liability.”201 As stated, the extent of a transportation de- partment’s liability for alleged violations of the MUTCD varies from state to state.202 For example, in Bookman v. Bolt,203 at the time of the accident the City had two construction projects in progress and had planned to install a traffic signal at the intersection in question after the completion of 193 Id. at 151, 615 N.W.2d at 707. 194 Id. 195 Id. at 172, 615 N.W.2d at 717. 196 Id. at 173, 615 N.W.2d at 717. 197 Id. at 176, 615 N.W.2d at 719. 198 Id. at 183, 615 N.W.2d at 723. 199 Id. at 181, 615 N.W.2d at 721. 200 Id. at 181, 615 N.W.2d at 721, 722. 201 Id. at 181–82, 615 N.W.2d at 722 (footnote omit- ted). 202 See JONES, supra note 186. 203 881 S.W.2d 771 (Tex. 1994).

20 construction.204 Warning signs were posted, but the City had not installed a traffic signal.205 The City argued that it had sovereign immunity be- cause the City was not required by law to install a traffic signal, and that any “failure to install a traffic signal was the result of discretionary ac- tion.”206 The appellate court agreed that the City had sovereign immunity and affirmed the trial court’s grant of a summary judgment in favor of the City.207 As held in another MUTCD case, “[w]hen the City first installs a traffic signal is no less discretionary than whether to install it.” (Em- phasis added.)208 A transportation department or other entity also may have statutory immunity from liability for the failure to provide traffic control devices.209 A state tort claims act or other statute may pro- vide that a public entity is not liable “for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices.”210 As illustrated by the Nawrocki case, supra, even if a state legislature has consented to tort claims against the state or other public enti- ties, the state’s consent to suit does not necessar- ily mean that the state has consented to being held liable for the alleged wrong at issue. For in- stance, a statute may waive immunity for a dan- gerous condition caused by a pothole but not for one caused by the absence of a guardrail.211 204 Id. at 773. 205 Id. 206 Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.056(1) and (2) (Vernon 1986) (discretionary pow- ers) and § 101.061(a)(1) (Vernon 1986) (traffic and road- controlled devices)). 207 Id. at 774, 775. 208 Fort Bend County Toll Road Authority, 316 S.W.3d 114, 121 (In. 2010) (holding that a toll road au- thority retained discretion regarding when to install warning flashers) (citation omitted). 209 See, e.g., IOWA CODE § 668.10 (2013) (governmen- tal exemptions). 210 Smith v. State, Dep’t of Transp., 247 N.J. Super. 62, 588 A.2d 854 (1991). See also Kosoff-Boda v. County of Wayne, 45 A.D. 3d 1337, 1338, 845 N.Y.S.2d 612, 613 (2007) (holding that the defendant submitted evidence that its signs were installed in accordance with the MUTCD, that it conducted periodic reviews of traffic volume, that it had not received any written complaints concerning the intersection, and that there had been only one reported accident near the intersection in the 2 years prior to the plaintiff’s accident); Racalbuto v. Redmond, 46 A.D. 3d 1051, 1052, 847 N.Y.S.2d 283, 285 (2007) (holding that the County had qualified immunity when the County had reviewed the highway plan and placed signs near an intersection that alerted motorists of a curve and the upcoming intersection). 211 See, e.g., 42 Pa. CONS. STAT. § 8522(b)(5): C. Transportation Departments’ Defenses to Claims Involving the MUTCD Fourteen transportation departments that re- sponded to the survey identified defenses that they commonly assert in cases brought against them in which a plaintiff has alleged that the de- partment violated one or more provisions of the MUTCD.212 The defense noted most often by the depart- ments is that the department’s action or decision in question involved the exercise of discretion and therefore is immune. The departments argue that they have immunity under their tort claims acts,213 that “[n]o exception to governmental im- munity applies,”214 that they have “qualified immunity,”215 or that they have immunity under a design immunity statute.216 Second, the transportation departments argue that because they exercised reasonable engineer- ing judgment in accordance with the MUTCD, their decisions are discretionary and therefore immune from liability. A department may use its own engineers or retain an outside expert to tes- tify that the department observed the require- ments or guidance in the MUTCD or that any deviation from the MUTCD was based on reason- able engineering judgment.217 A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a suffi- cient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph. See also 42 PA. CONS. STAT. § 8542(b)(4): A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in para- graph (5) [above]. 212 See App. B. 213 Responses of Indiana DOT, Nebraska Department of Roads (citing NEB. REV. STAT. 81-8, 219), Ohio DOT, and Oklahoma DOT. 214 Response of Michigan DOT. 215 Response of New York State DOT. 216 Response of Caltrans (citing CAL. GOV’T CODE § 803.6 and CAL. GOV’T CODE § 803.2 (trivial risk)). 217 Responses of Missouri Highway and Transporta- tion Commission and Texas DOT (identifying “[t]he immunities afforded to the discretion inherent in engi- neering decisions and the decisions to implement de- vices”).

21 Third, the departments argue that the MUTCD provisions at issue are not mandatory,218 that they are only guidance, not a standard.219 One depart- ment stated that the MUTCD is not a legal requirement to install any sign; that a diagram or picture in the Manual is not a requirement; and that the Manual does not obligate the department to create a traffic control plan or include more than one warning sign in a given area.220 In addi- tion, transportation departments in some states are able to rely on statutory immunity for traffic control devices221 or the state’s tort claims act’s “immunities regarding discretion and signing.”222 The Nebraska Department of Roads also men- tioned its immunity for weather conditions.223 Fourth, insofar as basic principles of tort liabil- ity and MUTCD defenses are concerned, the departments defend on the basis that the plaintiff has failed to show that there was a duty to install or provide a traffic control device at the location of the accident, and, even if there were such a duty, the departments complied with their standard of care224 because their actions complied with225 or substantially conformed to the Manual.226 One de- partment also noted that it may argue that the plaintiff wrongly interpreted the MUTCD or that the cited section of the MUTCD does not apply.227 Several departments noted that their defenses in MUTCD cases include the plaintiff’s contribu- tory negligence228 or comparative fault,229 “even if the department’s conduct was ‘below [the] stan- 218 Responses of Wisconsin DOT and Kansas DOT. 219 Response of Wisconsin DOT. 220 Id. 221 Response of Iowa DOT (citing IOWA CODE § 668.10(1)(a)). 222 Response of Kansas DOT. 223 Response of Nebraska Department of Roads. 224 Responses of Missouri Highway and Transporta- tion Commission (compliance with the Missouri EPG), Oklahoma DOT, and Utah DOT. 225 Response of Missouri Highway and Transporta- tion Commission (regarding the Missouri EPG). 226 Responses of Indiana DOT (no breach of the Man- ual), Oklahoma DOT (no violation occurred). and Wis- consin DOT. Both Morales v. State of La., Dep’t of Transp. and Dev., 92 So. 3d 460, 463 (La. App. 2012) and Skulich v. Fuller, 82 So. 3d 467 (La. 2011), are ex- amples of compliance with the standards of the MUTCD. In Skulich the plaintiff’s expert was unable to identify any standard in the MUTCD that was violated. Skulich, 82 So. 3d at 472. 227 Response of Arkansas Highway and Transporta- tion Department. 228 Responses of Indiana DOT and Nebraska Department of Roads. 229 Response of Kansas DOT. dards and guidance in the MUTCD.’”230 Several departments stated that they defend on the basis that they had no notice of an alleged dangerous condition,231 that an alleged infraction of the MUTCD was not the proximate cause of the plain- tiff’s accident,232 or that the negligence of a third party was an “efficient intervening cause.”233 Before discussing the departments’ defense that their actions are discretionary under the MUTCD and immune from liability, Section D discusses the departments’ defenses that are important in tort cases generally and are just as important in cases involving the MUTCD.234 D. Whether Departments Have a Duty to Provide Traffic Control Devices In general a public entity has a duty of reason- able care to construct and maintain its public im- provements such as highways in a reasonably safe condition,235 or to provide adequate warning to a motorist of any danger that is present.236 The 230 Response of Indiana DOT. 231 Response of Missouri Highway and Transporta- tion Commission; New York State DOT; and Washing- ton State DOT (lack of reasonable notice and/or insuffi- cient time to correct the alleged deficiency). 232 Responses of Kansas DOT, Oklahoma DOT, and Washington State DOT. 233 Response of Nebraska Department of Roads. 234 Assuming that state law authorizes a tort action against a transportation department, a plaintiff must allege and prove the essential elements of any tort claim: 1) that the department owed a duty to the plain- tiff; 2) that the department committed a breach of its duty of care to the plaintiff; and 3) that the depart- ment’s negligence was the proximate cause of the plain- tiff’s injuries. A plaintiff also must prove damages caused by the alleged negligence and the plaintiff’s in- jury. See Turner, 733 S.E.2d at 874 (stating required elements of a tort claim in North Carolina). See also Skulich, 82 So. 3d at 470–71. In Skulich the court noted that in Louisiana to recover against the State or other public entity under LA. REV. STAT. § 9:2800, a plaintiff must prove that (1) the thing that caused her damages was in DOTD’s cus- tody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) DOTD possessed actual or constructive notice of the defect, and failed to take corrective measures to remedy the defect within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiff’s inju- ries. (Citations omitted.) 235 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 375, at 163–64. 236 Taylor-Rice v. State, 91 Haw. 60, 979 P.2d 1086, 1095–96 (l999); Goodermote v. State, 856 S.W.2d 715, 720 (Tenn. 1993) (“The State has a duty to exercise rea- sonable care under all the attendant circumstances in planning, designing, constructing and maintaining the State system of highways.”); Hash v. State, 247 Mont.

22 Pennsylvania DOT stated in response to the sur- vey that Pennsylvania “case law requires high- ways to be kept reasonably safe for [their] intended, foreseeable use.”237 However, with respect to the MUTCD and a transportation department’s duty to a motorist, as one court has held, “the MUTCD may be used as ‘a tool for assessing a breach of duty only after a legal duty has already been established. It cannot be used to create a legal obligation’” under state law.238 Warning signs, traffic lights, pavement mark- ings, and other devices are important features of safe roads and highways. However, for a plaintiff to maintain a tort action against a transportation department, the plaintiff must show that the department owed a duty to the plaintiff that the defendant negligently performed or failed to per- form.239 The showing of both the existence of a duty and its breach are critical, because “[w]ithout duty, there can be no breach of duty, and without breach of duty there can be no liabil- ity.”240 The courts have held that in the absence of statute, a public entity responsible for highways has no general duty to install or provide highway signs, signals, or markings. Indeed, numerous cases have held that the failure to provide traffic control devices is not actionable, particularly if a public entity had discretion regarding what kind of action or response was appropriate.241 As a Mississippi court has held, “[t]he placement, or non-placement, of warning signs is a discretionary act, involving a choice that must be based upon public policy and other considerations.”242 In that 497, 501, 807 P.2d 1363, 1365–66 (1991) (“The State’s duty to keep its highways in a reasonably safe condition extends to the paved portion of the roadway, to the shoulders and the adjacent parts thereof, including guardrails.”). 237 Response of Pennsylvania DOT. 238 Hodges v. Attala County, 42 So. 3d 624, 626 (Miss. 2010) (quoting Chisolm v. Miss. DOT, 942 So. 2d 136 (Miss. 2006) (internal citations omitted)). 239 See 79 N.Y. Jur. 2d, Negligence § 16. 240 Id. 241 French v. Johnson County, 929 S.W.2d 614, 617 (Tex. App. 1996) (holding in a case involving an acci- dent on a bridge built in 1943 that the County’s failure to install guardrails, replace the bridge, or post warn- ings after the date of the tort claims act did not consti- tute an act or omission waiving immunity and that the decision not to post warning signs was discretionary); Urow v. District of Columbia, 316 F.2d 351 (D.C. Cir. 1963) (no liability for failure to exercise discretionary legislative powers to control traffic at an intersection). 242 Hankins v. City of Cleveland, 90 So. 3d 88, 94–95 (Miss. 2011) (citation omitted) (internal quotation marks omitted). case the court ruled that the plaintiff provided no evidence that the placement of the signs and the maintenance of the crosswalk were anything other than discretionary functions.243 In fact, the court said that the plaintiff’s argument that the City had used its funds for other crosswalks was “a prime example of when [a] decision is based upon a policy judgment of someone and is not a statutorily imposed duty.”244 However, there is authority holding that after a decision is made to provide signs, signals, or markings, there is a duty to maintain them with reasonable care.245 Moreover, when a highway agency is required to maintain highways free of hazards, the agency’s duty may include the proper maintenance of directional signs, signals, stop signs, and other devices.246 E. Whether a Duty Arises When There Is a Dangerous Condition 1. Whether There Is Immunity for a Dangerous Highway Condition A transportation department may have a duty to install or provide a traffic control device when it has actual or constructive notice of a dangerous condition. One court has held that a dangerous highway condition of which a transportation department has notice “abrogates immunity.”247 In Nebraska a state statute “denies sovereign im- munity if the condition is not corrected by the gov- ernmental entity within a reasonable time.”248 Eight departments that responded to the survey reported that they did not have immunity in such circumstances.249 There is, however, other ambivalent or contrary authority. Six of the transportation departments that responded to the survey in fact reported that 243 Id. 244 Id. at 95. 245 Chart v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673, 677–78 (1973). 246 Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 883 (Iowa 2002) (construing IOWA CODE § 668.10(1) to mean that when a regulatory device has been set up, “the state or municipality may be assigned a percentage of fault for its failure to maintain the device”). 247 Am. Family Mut. Ins. Co. v. Outagamie County, 2012 WI App 60 at 25, 341 Wis. 2d 413, 428, 816 N.W.2d 340 (2012). 248 Response of Nebraska Department of Roads (citing NEB. REV. STAT. § 81-8, 219(9)). 249 Responses of Arizona DOT; Missouri Highway and Transportation Commission (citing MO. REV. STAT. 537.600), Ohio DOT, New Hampshire DOT, Pennsyl- vania DOT, Texas DOT, Utah DOT, and Washington State DOT.

23 their departments have immunity if they fail to correct or give notice of a dangerous condition in connection with a highway or related facility involving a traffic control device.250 According to the Nevada DOT, [t]here exists Nevada case law holding that the State is immune from suit for negligence with respect to danger- ous 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 af- ter learning of a hazard or to operational functions, such as the duty to maintain a stop sign. 251 The Arkansas Highway and Transportation Department stated that although the department has immunity in circuit court pursuant to Art. 5, § 20 of the Arkansas Constitution, the State Claims Commission has jurisdiction under Ark. Code Ann. 19-10-204 and could find liability un- der these circumstances.252 In contrast, in Illinois there is authority holding that a transportation department has absolute immunity even when it has notice and fails to respond to a dangerous condition. For example, in Illinois the courts have held “that it is improper to import the ‘discretionary/ministerial distinction’ into sections of the Tort Immunity Act that do not specifically reference it”;253 that “a lo- cal governmental entity has absolute immunity under section 3-104 [of the Act] for an ‘initial fail- ure to erect a traffic warning device’”;254 and that Illinois courts “have repeatedly held that ‘[w]hile section 11-304 of the Illinois Vehicle Code…impose[s] an obligation[] upon municipali- ties to post various warning signs, section 3-104 of the Tort Immunity Act absolutely immunizes local public entities from any tort liability for failing to fulfill those duties.”255 2. Definition of a Dangerous Condition What constitutes a dangerous condition may depend on the facts as well as judicial interpreta- tion of the applicable law. As held in one case in- 250 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”); and Oklahoma DOT (citing OK. STAT. tit. 51, §§ 155(5) and (15)). 251 Response of Nevada DOT. 252 Response of Arkansas Highway and Transporta- tion Department. 253 Sexton v. City of Chicago, 976 N.E.2d 526, 549 (2012) (citation omitted). 254 Id. at 550 (citations omitted). 255 Id. at 549 (citations omitted). volving the MUTCD, the plaintiff failed to prove that the intersection at issue presented an unrea- sonable risk of harm.256 In some states the term “dangerous condition” may be defined by statute. In Wisconsin “[t]he known danger exception abro- gates immunity in situations where an obviously hazardous situation exists and ‘the nature of the danger is compelling and known to the [public] officer and is of such force that the public officer has no discretion not to act.’”257 Even if there are situations known to be dangerous, it has been held that a transportation department still has “‘discretion as to the mode of response.’”258 In California the issue is addressed in several sections of the California Government Code. Sec- tion 830 defines the term “dangerous condition”: it “means a condition of property that creates a sub- stantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a man- ner in which it is reasonably foreseeable that it will be used.” Under Section 835(a) of the Code, a public entity may be held “liable for injury caused by a dangerous condition of its property,” subject to other conditions stated in the statute, if “[t]he public entity had actual or constructive notice of the dangerous condition as further specified under Section 835.2,” as the following discusses.259 With respect to traffic control devices, Section 830.2 of the Code provides that “[a] condition is not a dangerous condition…if the trial or appel- late court…determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature…that no reasonable person would conclude that the condition created a substantial risk of injury.” Pursuant to Section 830.4 a condition is not a dangerous one “merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” Moreover, Section 830.8 provides that “[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehi- cle Code.” However, Section 830.8 also creates an excep- tion for a dangerous condition: 256 Daigle v. Parish of Jefferson, 30 So. 3d 55, 63 (2009). 257 Am. Family Mut. Ins. Co., 2012 WI App. 60 ¶ 25, 341 Wis. 2d 413, 428–29, 816 N.W.2d 340, 348 (2012) (citation omitted). 258 Id. at 29, 341 Wis. 2d at 430, 816 N.W.2d at 349 (citation omitted). 259 CAL. GOV’T CODE § 835(a).

24 Nothing in this section exonerates a public entity or pub- lic employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. (Emphasis added.) As for notice, Section 835.2(a) and 835.2(b) state what is required for a public entity to have actual notice or constructive notice of a dangerous condi- tion. There are, however, various qualifiers. For example, under Section 834.4(b), “[a] public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable,” subject to other conditions set forth in the statute. If nothing else, the above provisions demon- strate the importance of reviewing applicable statutes in determining whether the installation or omission of a traffic control device constitutes a dangerous condition, as that term may be both defined and limited by state law. Nevertheless, although applicable statutes and judicial deci- sions must be consulted, it appears that the ma- jority rule is that when a transportation depart- ment has notice of a dangerous condition, the responsible agency must respond, such as by cor- recting the condition or providing adequate warn- ing of the condition. 3. Requirement that the Department Had Notice of a Dangerous Condition Whether under the common law or as required by statute, a transportation department may have a duty to correct a dangerous condition or other- wise to take appropriate action when the depart- ment acquires notice of the condition.260 One of the defenses asserted by transportation departments in MUTCD cases is that they had no notice of the 260 Diakite v. City of New York, 42 A.D. 3d 338, 339, 840 N.Y.S.2d 33, 34 (2007) (holding that the City was not liable for failure to inspect an iron fence built in the 1800s and for failure to maintain it when there was no history of similar accidents concerning the fence); Mickle v. N.Y. State Thruway Auth., 182 Misc. 2d 967, 975, 701 N.Y.S.2d 782, 788–89 (1999) (stating that “prior accidents is only one method by which a claimant may prove notice that a dangerous condition existed and that the defendant had constructive notice of it,” as “a claimant may prove that the defect was so obvious and had existed for such a period of time that a defen- dant should have discovered and corrected it”); Gregorio v. City of New York, 246 A.D. 2d 275, 677 N.Y.S.2d 119, 122 (1998) (holding that a City is not immune from li- ability when it had notice that a barrier was defective). existence of a dangerous condition. Eighteen of 21 transportation departments that responded to the survey stated that in their state they are poten- tially liable for failing to respond to a dangerous condition that implicates a traffic control device when they have notice of the condition.261 A public entity responsible for highways thus may have a duty to post signs warning of a dan- gerous condition when the location is inherently dangerous or when they are otherwise prescribed by law.262 Not surprisingly, the courts have held that whether there is a duty to provide warning signs, traffic signals, or pavement markings depends on the nature and circumstances of the condition of the road. In contrast to the decision in Sexton, supra, it has been held in another Illinois case that a statutory exemption for discretionary acts ordinarily does not relieve a public entity of liability for failing to warn of a condition known to be dangerous to the traveling public.263 261 Responses of Alabama DOT; Arizona DOT; Ar- kansas 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 malfunctions once placed”); Utah DOT; Virginia DOT; Washington State DOT; and Wisconsin DOT. Only three departments stated that they were not po- tentially liable under the aforesaid circumstances. Responses of Alabama DOT; Indiana DOT; and Michi- gan DOT. See also Louisville Gas and Elec. Co. v. Roberson, 212 S.W.3d 107, 109 (Ky. 2006), stating: In general, government is charged with a duty of ordinary care with respect to highway safety. This duty requires govern- ment to keep highways “in a reasonably safe condition for travel, to provide proper safeguards, and to give adequate warn- ing of dangerous conditions in the highway. This includes the duty to erect warning signs and to erect and maintain barriers or guardrails at dangerous places on the highway to enable mo- torists, exercising ordinary care and prudence, to avoid injury to themselves and others.” Id. (footnote omitted). See also Colovos v. Dep’t of Transp., 205 Mich. App. 524, 517 N.W.2d 803 (Mich. Ct. App. 1994) (holding that the State had no duty to erect signs or warning devices unless these were located on the improved portion of the road). 262 Owen v. Burlington N. & Santa Fe R.R., 153 Wash. 2d 780, 788, 108 P.3d 1220, 1224 (2005). 263 Snyder v. Curran Twp., 167 Ill. 2d 466, 657 N.E.2d 988 (1995) (discretionary immunity did not insu- late township from liability for improper placement of a road sign). See also Am. Family Mut. Ins. Co. 2012 WI App 60 at 25, 341 Wis. 2d at 428, 816 N.W.2d 340,349; Sexton v. City of Chicago, 976 N.E.2d 526, 549 (2012).

25 Actual notice is not always required, as con- structive notice may be sufficient.264 Under the Louisiana statute, constructive notice means “the existence of facts which infer actual knowledge.”265 Because public entities are deemed to have knowledge of their own actions, it has been held that they do not have to have notice of their own faulty design, construction, maintenance, or repair of a highway.266 In a New York case, the court rejected NYSDOT’s argument, which in the court’s view suggested that the State could “create a dangerous condition but nevertheless avoid liability for injuries it caused because it was not fully aware of or did not appreciate the danger.”267 In entering a judgment in favor of the claimants on the issue of liability, the court also held that compliance with the MUTCD does not eliminate the possibility of other negligence that was the proximate cause of the claimants’ injuries.268 It is usually a question of fact whether a public entity had actual notice or whether the condition had existed for a sufficient amount of time that the public entity may be charged with notice.269 The period of required notice may be prescribed by statute. In New Hampshire, “there is limited liability[] and sovereign immunity until notified of a deficiency,” but the department “need[s] to de- velop a plan to correct within 4 days.”270 In the absence of a statute, there is no precise guidance on the required notice that a public entity must have before being held liable for failing to respond to a dangerous condition.271 264 Hiland v. State, 879 N.E.2d 621, 627 (Ind. 2008) (stating that a “minimum standard must be met, even with respect to roads that are decades, if not centuries, old” but that “whether a particular road was in a rea- sonably safe condition at the time of a particular acci- dent is a question of fact best decided by a factfinder”); Woolen v. State, 256 Neb. 865, 593 N.W.2d 729 (1999); Aetna Cas. & Sur. Co. v. State, 712 So. 2d 216 (La. 1998); Harkness v. Hall, 684 N.E.2d 1156 (Ind. 1997); Templeton v. Hammond, 679 N.E.2d 1368 (Ind. 1997); Burgess v. Harley, 934 S.W.2d 58 (Tenn. 1996). 265 Skulich v. Fuller, 82 So. 3d 467, 471 (2011) (cita- tions omitted). 266 Coakley v. State, 26 Misc. 2d 431, 435, 211 N.Y.S.2d 658, 663 (1961); Morales v. N.Y. State Thru- way Auth., 47 Misc. 2d 153, 262 N.Y.S.2d 173 (1965). 267 Dispenza v. State, 28 Misc. 3d 1205(A), 957 N.Y.S.2d 635, N.Y. Misc. LEXIS 2839, at 46 (2010). 268 Id. at 51–52. 269 See, e.g., 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 381, at 171–73. 270 Response of New Hampshire DOT. 271 See Gaines v. Long Island State Park Comm’n, 60 A.D. 2d 724, 725, 401 N.Y.S.2d 315, 317 (1977) (holding that a 34-hour delay in detecting a large pothole on a In Hankins, involving alleged improper signage and maintenance of a crosswalk in violation of the MUTCD, the plaintiff “failed to present any evi- dence that the City or [the university] had any notice of any claimed defect or had the opportu- nity to protect or warn of the defect.”272 In other cases, the courts have held that there was no ba- sis for liability because the highway agency either acquired notice the same day of the accident or had taken action within a few hours of having received notice of the dangerous condition.273 F. The Standard of Care and the MUTCD Assuming that a plaintiff has established that a transportation department owed the plaintiff a duty with respect to a traffic control device at the location of an accident, a plaintiff must establish that the department had an “obligation to conform to a particular standard of conduct toward another to which the law will give recognition and effect.”274 Transportation departments that responded to the survey reported that one of the defenses on which they rely in MUTCD cases is that they complied with the MUTCD in a given situation and therefore conformed to the applica- ble standard of care. First, although a transportation department may have a general duty to maintain roads in a safe condition as “outlined in the MUTCD and the DOT’s policies,”275 the Manual “is not a legal basis for a statutory negligence action,” but rather may be “evidence bearing upon the general duty to exercise reasonable care.”276 Second, the MUTCD is not a “substitute for en- gineering judgment.”277 Instead, as the plaintiff’s expert conceded in one case, the MUTCD “con- templates the exercise of engineering judgment in determining whether to use a particular traffic major highway was sufficient to charge a public entity with notice of a dangerous condition). 272 Hankins v. City of Cleveland, 90 So. 3d 88, 96 (Miss 2011). 273 Lawson v. Estate of McDonald, 524 S.W.2d 351 (Tex. 1975); Tromblee v. State, 52 A.D. 2d 666, 381 N.Y.S.2d 707 (1976). See Ferris v. County of Suffolk, 174 A.D. 2d 70, 76, 579 N.Y.S.2d 436, 441 (1992) (stat- ing that there was “no evidence that the condition, one loose plank out of many, was so patently defective that a town employee must have been put on notice of the potential danger”). 274 See also 65 N.Y. Jur. 2d, Highways, Streets, and Bridges § 364, et seq. 275 Turner v. N.C. DOT, 733 S.E.2d 871, 876 (2012). 276 Chandradat v. State, 830 N.E.2d 904 (Ind. 2005) (footnote omitted). 277 Shipley v. Dep’t of Roads, 283 Neb. 832, 813 N.W.2d 455 (2012).

26 control device at a particular location.”278 In cases involving an alleged breach of the MUTCD, there must be evidence presented by one having engi- neering or other specialized knowledge. Such expertise is not within the common knowledge of jurors, as traffic engineers must comply with a Manual that “is several hundred pages long and [that] contains numerous arcane subparts.” 279 The degree of skill and knowledge required to perform traffic control cannot be imparted to jurors by lay witnesses.280 Third, according to a Louisiana court, it is “well- settled law that compliance with the provisions of the MUTCD, which is mandated by La. R.S. 32:235, is prima facie proof of DOTD’s absence of fault when an injured motorist attempts to predi- cate DOTD’s liability on improper signalization or road marking. …[P]rima facie proof is sufficient only if not rebutted or contradicted.”281 In a New York case, an expert testified that based on New York’s MUTCD “he calculated the sight distance across the corners of the subject intersection.”282 The court held that the town “met its prima facie burden of establishing that it constructed and maintained the subject intersection in reasonably safe condition.”283 Finally, if a transportation agency demonstrates that it has met its standard of care by complying with the MUTCD, the burden shifts to the plain- tiff to demonstrate otherwise.284 As held in a Geor- gia case, expert testimony on behalf of the plain- tiff is required to overcome the transportation department’s showing that the department was in compliance with the MUTCD.285 In one case located for this digest, it was held that a transportation department’s compliance with the MUTCD may not be sufficient. The court held that “the State’s failure to comply with the Manual is evidence of negligence, i.e., breach of duty,” but “compliance with the mandatory provi- sions of the Manual is not all that is needed for the State to meet its duty and…the State is still bound to exercise ordinary care in selecting 278 Id. at 463. 279 Macintosh v. Staker Paving & Constr. Co., 2009 UT App 96, at 3, 4 (2009). 280 Id. 281 Morales v. State of La., Dep’t of Transp. and Dev., 92 So. 3d 460, 463 (La. 2012). 282 Lehane v. Town of East Greenbush, 2008 N.Y. Misc. LEXIS 9210 (Unrept.), at 7 ( 2008). 283 Id. at 5 (citation omitted). 284 Macintosh, 2009 UT App at 2. 285 Sadler v. DOT, 311 Ga. App. 601, 606 n.22, 716 S.E.2d 639, 643 n.22 (2011). the appropriate traffic control device for the circumstances.”286 G. Whether a Violation of the MUTCD Constitutes Negligence Per Se Although a plaintiff may argue that a violation of a mandatory provision of a safety code or stan- dard constitutes negligence per se,287 in cases in- volving the MUTCD a violation of the Manual is usually received by the court as evidence of negli- gence, not negligence per se.288 Of 21 transporta- tion departments responding to the survey, 17 reported 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.289 The Iowa DOT noted that in Gipson v. State290 the court held that a violation of the MUTCD con- stitutes evidence of negligence rather than negli- gence per se.291 In Esterbrook v. State of Idaho,292 the court took the opportunity to clarify that the doctrine of negligence per se applies only in a case in which there was a violation of a mandatory provision of the Manual. In previous cases we have stated that the Manual on Uni- form Traffic Control Devices (MUTCD) has the force of law. …We have also stated that violation of this Manual is per se negligence. …However, in both Bingham and Curtis, the Court was considering mandatory provisions of the MUTCD. In these decisions, we did not intend to imply that all provisions in the MUTCD were mandatory, or that the Department did not have discre- tion to implement the optional provisions in the Manual. In order to constitute negligence as a matter of law, a statute or regulation must clearly define the required standard of conduct. 293 286 Kirkwood v. State, 16 Neb. App. 459, 748 N.W.2d 83 (2008) (holding that the State was negligent in fail- ing to comply with the MUTCD in placing stop signs and other warning devices at an intersection when the State failed to have a stop line at the intersection and placed a “Stop” sign outside the driver’s line of vision) (citation omitted). 287 Thomas, supra note 185, § 5.B.4. 288 Esterbrook v. State of Idaho, 124 Idaho 680, 863 P.2d 349 (1993). 289 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, Virginia DOT, Washington State DOT, and Wisconsin DOT. The Nevada DOT stated that it does not track such information. 290 419 N.W.2d 369, 371–72 (Iowa 1988). 291 Response of Iowa DOT. 292 124 Idaho 680, 863 P.2d 349 (1993). 293 Id. at 682, 863 P.2d at 351 (citations omitted).

27 In Esterbrook the court held that the jury in- structions were improper because “they implied that optional provisions in the traffic manuals were mandatory and that a violation of those pro- visions was negligence as a matter of law.”294 In Hodges v. Attala County,295 a Mississippi court held that it was not negligence per se when the plaintiffs argued that the MUTCD “placed the responsibility for the placement and maintenance of traffic control devices with the governmental body.”296 Moreover, “[e]ven if Attala County had a duty to ‘insure’ the maintenance of the warning signs at the construction site, how it chose to ful- fill that duty would be discretionary, and the County would be immune from liability.”297 On the other hand, the Ohio DOT explained in response to the survey that “failure 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.”298 H. The MUTCD and Proximate Cause A motorist may allege that an accident was caused by the pavement condition, by inadequate warning signs or signals, or by other highway conditions. Although a violation of a safety stan- dard may be the proximate cause of an accident,299 a plaintiff is obligated to prove that a specific vio- lation of the MUTCD was the proximate cause of the accident. Several transportation departments that responded to the survey noted that the fail- ure of a plaintiff to prove proximate cause is an important defense in a MUTCD case.300 Regardless of the alleged cause of the accident, a plaintiff must prove both causation in fact and 294 Id. at 683, 863 P.2d at 352. 295 42 So. 3d 624 (Miss. 2010). 296 Id. at 626. 297 Id. at 628. 298 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)). 299 Nevins v. Ohio Dep’t of Highways, 132 Ohio App. 3d 6, 23, 25, 724 N.E.2d 433, 443, 445 (1998) (remand- ing the case because the trial court failed to state sepa- rately the amounts of individual compensatory dam- ages, funeral and burial expenses, and survival claims as required). 300 Responses of Kansas DOT; Oklahoma DOT; and Washington State DOT. legal cause.301 In Garcia v. Department of Trans- portation,302 the court explained that [t]here are two elements of proximate cause: cause in fact and legal causation. …Cause in fact concerns the actual consequences of an act. On the other hand, legal causa- tion is grounded in the determination of how far the con- sequences of a defendant’s act should extend and focuses on whether the connection between the defendant’s act and the result is too remote or inconsequential to impose liability. 303 Whether the alleged negligence was the cause in fact of an accident may be tested by asking whether the injury would have occurred but for the defendant’s negligence.304 If an accident occurred on pavement that is alleged to have been defective, then it must be shown that the defect in fact was the cause of the accident.305 Furthermore, the evidence must show that “the injury was a natural and probable consequence of the negligent act, which, in light of the attending circum- stances, could have been reasonably foreseen or anticipated.”306 If a third party were an interven- ing cause of the plaintiff’s accident, it is still pos- sible that “‘the original wrongdoer may be held liable even though other independent agencies intervene between his negligence and the ulti- mate result.’”307 The courts have held in some cases arising un- der the MUTCD that the alleged acts or omissions 301 Estate of Day by Strosin v. Willis, 897 P.2d 78, 81 (Alaska 1995). 302 Garcia, 161 Wash. App. 1, 270 P.3d 599 (Wash. Ct. App. 2011). 303 Id. at 41, 270 P.3d at 606 (citations omitted). 304 2 FOWLER HARPER, FLEMING JAMES & OSCAR GRAY, THE LAW OF TORTS 2d § 20.2, at 91 (1989). 305 Id. at 85–86; 4 SYDNEY CHARLES SCHWEITZER & JOSEPH RASCH, CYCLOPEDIA OF TRIAL PRACTICE § 827, at 66 (2d ed., Lawyers Cooperative, 1970–72). 306 Chandradat v. State, 830 N.E.2d 904, 909 (2005) (footnotes omitted). See also Larkins v. Hayes, 267 A.D. 2d 524, 525, 699 N.Y.S.2d 213, 214 (1999). 307 Chandradat, 830 N.E.2d at 910. The court stated that “[t]he key to determining whether an intervening agency has broken the original chain of causation is to decide whether, under the circumstances, it was rea- sonably foreseeable that the agency would intervene in such a way as to cause the resulting injury”; that “rea- sonably foreseeable intervening acts do not break the chain of causation and the ‘original wrongful act will be treated as a proximate cause’”; and that “‘the foresee- ability of an intervening cause and, thus, whether the defendant’s conduct is the proximate cause of the plain- tiff’s injuries, is a question of fact for the jury’s deter- mination.’” (Citations omitted); Tex. Dep’t of Transp. v. Olsen, 980 S.W.2d 890, 893 (Tex. 1998) (noting that there may be more than one proximate cause of an acci- dent).

28 of the transportation departments were not the proximate cause of an accident. In a New York case, the plaintiff’s expert testified that the City should have painted the road in question as a four-lane rather than a two-lane road, so that the plaintiff would not have attempted to pass a trac- tor-trailer on the right side.308 In defending the claim the City submitted an affidavit of the City’s traffic planner, who relied on the 1983 MUTCD.309 Although the court held that the City had “quali- fied immunity” for highway planning, the court also held that the City’s action was not the proxi- mate cause of the accident.310 Rather, the cause of the accident was the plaintiff’s attempt to pass a tractor-trailer on the right as it was turning into a driveway.311 In an Ohio case, the Ohio Department of Public Safety’s failure to replace a sign was not the proximate cause of an accident.312 Rather, the court held that the plaintiff’s failure “to look ahead of her vehicle” and observe traffic condi- tions was the proximate cause.313 I. Contributory Negligence or Comparative Fault It is well settled that motorists must be “vigi- lant in their observances and avoidances of de- fects and obstructions likely to be encountered.”314 Although beyond the scope of this digest, as the transportation departments that responded to the survey reported, the departments also defend MUTCD cases on the basis of the plaintiff’s con- tributory negligence or comparative fault. In sum, questions of duty, proof of observance of the standard of care by being in compliance with the MUTCD, and the absence of an alleged viola- tion of the MUTCD as the proximate cause of an accident, as well as the contributory negligence of the plaintiff or the intervening negligence of a third party, are important defenses in cases aris- ing under the MUTCD. J. Role of the Jury in MUTCD Cases The judicial opinions in which the MUTCD was invoked by the plaintiff as a basis for a tort claim against a transportation department say little or nothing about the role of the jury. As discussed in the digest, if there are issues arising under the 308 Elmer v. Kratzer, 249 A.D. 2d 899, 901, 672 N.Y.S.2d 584, 585 (1998). 309 Id. at 900, 672 N.Y.S.2d at 585. 310 Id. at 901, 672 N.Y.S.2d at 586. 311 Id. at 902, 672 N.Y.S.2d at 586. 312 Shortridge v. Ohio Dep’t of Public Safety, 90 Ohio Misc. 2d 50, 53, 696 N.E.2d 679, 681 (1997). 313 Id. at 54, 696 N.E.2d at 682. 314 Finkelstein v. Brooks Paving Co., 107 So. 2d 205, 207 (1958) (citations omitted). MUTCD that permit a department to exercise its discretion, including its engineering judgment, a jury question should not be presented. As the courts have held, the question of whether a trans- portation department has a duty to the plaintiff with respect to traffic control devices “is generally a question of law for the court to decide.”315 Only if a plaintiff demonstrates that the department had a duty to the plaintiff and committed a breach of that duty does “a particular act or omission” be- come a “question of fact for the jury.”316 Notwithstanding what is a generally clear divi- sion in the MUTCD between mandatory and non- mandatory duties, the responses to the survey suggest that in some cases juries are being allowed to decide questions or cases that arguably should have been decided or dismissed by the courts. According to the Kansas Department of Transportation (KDOT), “[t]he MUTCD has too much gray area allowing plaintiffs to hire an ex- pert willing to testify that KDOT violated a provi- sion of the MUTCD,” thus inhibiting KDOT’s suc- cess in using the discretionary and signing exceptions to its tort claims act.317 The Washing- ton State DOT stated that there is an increase in the MUTCD’s “requirements that have limited safety benefit but [that] can be construed by plaintiff’s expert as such.”318 The possibility that a case is one that would be allowed to go to a jury may affect a department’s defense of MUTCD claims. As one DOT reported, “most cases settle prior to trial because of joint and several liability and the risk incurred by ‘should’ statements being perceived by juries as ‘shall’” statements.319 Notwithstanding a transportation department’s immunity for the exercise of its discretion, there may be questions for a jury to decide when a plaintiff alleges the presence of a known danger- ous condition and that the transportation de- partment failed to correct it or provide adequate warning of the danger. In Lampe v. Taylor,320 for example, the issue was whether the plaintiff pre- sented “substantial evidence” that a collision could have been prevented because of the City’s knowledge acquired over a 5-year period prior to Lampe’s accident that there had been four other virtually identical collisions at the intersection. An expert testified that maximum signal visibility helps to prevent the accidental or inadvertent running of red lights and that the City “failed to meet the standard of care in designing the inter- 315 Chandradat v. State, 830 N.E.2d 904, 908 (2005). 316 Id. 317 Response of Kansas DOT. 318 Response of Washington State DOT. 319 Id. 320 338 S.W.3d 350 (Mo. 2011).