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Suggested Citation:"Legal Research Digest 74." National Academies of Sciences, Engineering, and Medicine. 2017. Liability of State Departments of Transportation for Design Errors. Washington, DC: The National Academies Press. doi: 10.17226/24681.
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Legal Research Digest 74 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM February 2017 LIABILITY OF STATE DEPARTMENTS OF TRANSPORTATION FOR DESIGN ERRORS This report was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared under Topic 22-02 by Larry W. Thomas, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest series is intended to keep departments up-to-date on laws that will affect their operations. Foreword Transportation departments have demonstrated an interest in protecting their agencies from liability for design errors and omissions in infrastructure projects and defective safety appliances and products. This study demonstrates that litigation has defined the parameters of a transporta- tion department’s liability for design errors or omissions. State tort- and sovereign-immunity statutes may shield an agency from liability. If the state has waived its immunity for certain claims, however, the transportation department may still have immunity when it has exercised discretion in the planning or design phase of a project. When a gov- ernment contractor is acting as an agent of the transporta- tion agency, the contractor may also have a claim. If a contractor is at fault, the agency may be able to recoup any related losses incurred from the contractor. Transportation departments generally require govern- ment contractors to maintain insurance to cover costs and damages resulting from claims due to defective planning, design, and construction. The digest covers liability insurance for design errors and omissions. It also examines public con- struction law, professional liability, and product warranties. A survey was sent to all 50 U.S. state departments of transportation (DOT) and the District of Columbia. The survey requested the state to provide information on its experience with and policies and practices on claims for design errors and omissions. Over one-half of the state DOTs responded to the survey, and many offered exam- ples of related standard contract and insurance provisions and forms. A significant number of those who responded to the survey indicated that within the past 5 years, claims had been brought against them or their contractors for allegedly defective planning or design. Only a few had been held liable, however. The results of this digest should be beneficial to transportation managers, attorneys, engi- neers, design contractors, and insurance personnel. Responsible Senior Program Officer: Gwen Chisholm Smith LRD 74_COVER_final.indd 1 1/13/17 6:10 PM

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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 74: Liability of State Departments of Transportation for Design Errors covers liability insurance for design errors and omissions. It also examines public construction law, professional liability, and product warranties. This study demonstrates that litigation has defined the parameters of a transportation department’s liability for design errors or omissions. State tort- and sovereign-immunity statutes may shield an agency from liability. If the state has waived its immunity for certain claims, however, the transportation department may still have immunity when it has exercised discretion in the planning or design phase of a project. When a government contractor is acting as an agent of the transportation agency, the contractor may also have a claim. If a contractor is at fault, the agency may be able to recoup any related losses incurred from the contractor. Appendixes A-E and Appendix F are available via online.

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