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CONTENTS I. Introduction, 3 II. Sovereign Immunity of Transportation Departments for Plan or Design Errors and Omissions, 4 III. Plan or Design Immunity Under a State Tort Claims Act or at Common Law, 7 A. Rationale for Immunity of Transportation Departments and Other Public Agencies for Discretionary Actions, 7 B. The Distinction Between Planning-Level and Operational-Level Decisions, 10 C. Immunity for a Plan or Design Prepared in Conformity with Generally Accepted Engineering or Design Standards, 12 D. Whether There Is Immunity for the Negligent Implementation of a Discretionary Policy, 14 E. Whether a Transportation Department Is Liable for an Accident When It Had Actual or Implied Knowledge of a Hazardous Condition, 14 IV. Immunity Under State Plan- or Design-Immunity Statutes, 16 A. Overview, 16 B. Plan- or Design-Immunity Statutes that Require Prior Approval of a Plan or Design or Compliance with Previously Approved Standards, 17 C. Requirement that a Plan or Design Be Supported by Substantial Evidence, 19 D. Plan- or Design-Immunity Statutes Requiring Prior Approval of a Plan or Design and Compliance with Previously Approved or Prevailing Standards, 20 E. Plan- or Design-Immunity Statutes Requiring Only that a Plan or Design Comply with Previously Approved or Prevailing Standards, 20 F. Plan- or Design-Immunity Statutes Requiring Only Prior Approval, 21 G. Immunity for Deviations from an Approved Plan or Design or from Design Standards, 21 H. Whether Design Immunity May Be Lost Because of a Dangerous or Hazardous Condition Caused by Changed Conditions, 21 I. Plan- or Design-Immunity Statute Not to Be Avoided by Artful Pleading, 23 V. Design-Immunity and Highway-Defect Statutes, 24 VI. Whether a Design Consultant or Contractor May Claim the Benefit of Sovereign or Governmental Immunity, 25 A. Design Consultantsâ or Contractorsâ Claims of Immunity Based on a Government Agencyâs Immunity, 25 B. Cases Requiring Proof that a Design Consultant or Contractor Was the Governmentâs Agent, 27 C. Immunity When a Design Consultant or Contractor Implements a Discretionary Decision Made by the Government, 29 D. Liability of a Design Consultant or Contractor to Third Parties for a Contractorâs Own Negligence, 29 VII. Claims by Transportation Departments Against Contractors for Plan or Design Errors and Omissions, 30 A. Applicability of 23 C.F.R. Part 172 to Claims Against Design Consultants and Contractors for Plan or Design Errors and Omissions on Federal-Aid Projects, 30 B. Transportation Department Procedures for Recovery for Plan or Design Errors and Omissions, 32 C. Claims by Transportation Departments Against Contractors for Plan or Design Errors, 33 D. Indemnity Agreements, 35 E. Compliance with the Standard of Care and Design Standards, 35 F. Products Liability and Warranty Claims, 36 VIII. Claims for Plan or Design Errors and Omissions After a Transportation Departmentâs Acceptance of the Work, 37 A. Effect on Claims by DOTs Against Contractors After a DOTâs Acceptance of the Work, 37 B. Exceptions to the Acceptance Doctrine, 37 C. Effect of the Contract and/or Terms and Conditions on the Acceptance Doctrine, 40 IX. Contractor Claims Against Transportation Departments for Defective Plans or Designs, 40 A. Transportation Departments Reporting Claims Against the DOT by Contractors, 40 B. Waiver of Sovereign Immunity for Contract Claims Against Transportation Departments, 40 C. Claims by Contractors Against Transportation Departments for Undisclosed Material Information or Material Misrepresentations in a Plan or Design, 41 X. Design-Build Contracts and Liability for Design Errors and Omissions, 45 A. Transfer of Risk and Responsibility from the DOT to the Design Consultant or Contractor, 45 B. Claims Arising Under Design-Build Contracts, 46 XI. Failure of Design Consultants or Contractors to Comply with the Required Standard of Care or to Exercise Professional Judgment, 47 A. Claims Caused by Contractors Failing to Comply with the Applicable Standard of Care or with Design Standards, 47 B. A Professionalâs Duty to Exercise Due Care with Respect to Other Project Parties, 48 XII. Liability for Decisions Regarding the Inclusion of Items on an Approved Products List or Liability for Approved but Defective Safety Appliances, 50 A. Claims Arising Out of Placing an Item on or Removing an Item from an Approved Products List, 50 B. Transportation Departmentsâ Immunity for Decisions Regarding the Inclusion of Items on an Approved Products List, 50 C. Liability for Approved but Defective Safety Appliances, 51 D. Claims Against Suppliers and Vendors Under the FCA, 52 XIII. Insurance for Costs or Damages Caused by Plan or Design Errors, 53 A. Insurance and Coverage Requirements, 53 B. Insurerâs Obligation to Defend and Indemnify, 53 C. Insurance and Design-Build Contracts, 54 XIV. Conclusion, 55 Appendices, 56 LRD 74_COVER_final.indd 2 1/13/17 6:10 PM