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24 NCHRP LRD 82 highway construction and maintenance. To avoid liability in the latter situation, State DOTs must demonstrate that they were not negligent. This might be accomplished by demonstrating that reasonable efforts were made at the routine, operational level to maintain the highway at an acceptable level of safety, and that upgrading the highway would not be economically feasible given limited funds and higher priority capital improvement projects. Where there is personal injury or property damage on the highway due to slope failure, plaintiffs trying to hold the State DOT liable will typically attempt to portray the State DOTâs ac- tivities as operational or ministerial (e.g., negligent maintenance of the highway or the slope). The State DOT, on the other hand, will argue that its actions or inaction were allowable exercises of discretion (e.g., policy decisions) in an effort to invoke the discretionary function exception. Even then, the State DOT might have to make a prima facie showing that its actions were reasonableâe.g., that slope improvements at the accident loca- tion were not economically feasible or were deferred in favor of higher priority slopes. SectionÂ IV examines these principles in the context of slope failure cases. IV. STATE DOT LIABILITY FOR SLOPE FAILURES As discussed in Section III, tort cases against State DOTs involving personal injury or property damage on the highway typically involve an analysis of the State DOTâs immunity, in- cluding whether the alleged conduct is subject to a statutory waiver of immunity and, if so, whether it falls under the dis- cretionary function exception to the immunity waiver. Courts struggle with whether to characterize a State DOT activity as discretionary (qualifying for immunity) or ministerial, and often analyze whether the State DOT was negligent in deter- mining whether it is entitled to discretionary immunity. This is also true with regard to highway slope failures. Plaintiffs injured by slope failures often allege that their damages are due to the negligence of the State DOT or other highway agency in plan- ning, design, construction, and maintenance of the highway.297 This section examines the situations in which courts find that discretionary immunity bars liability for slope failures, as well as the situations in which courts find the highway agency liable in negligence for slope failures. 297 See, e.g., Alvis v. Cty. of Ventura, 178 Cal. App. 4th 536, 542, 100 Cal. Rptr. 3d 494, 499â500 (2009) (âThe complaint alleges [that] the County .Â . . negligently planned, placed, constructed and maintained a wall along a [county road]. The wall constituted a dangerous condition of public property .Â .Â . which created and increased the risk of death and serious injury .Â .Â . and damage to property .Â .Â . in the event of a landslide or mudslide.â); Schlitters v. State, 787 P.2d 656, 657 (Colo. App. 1989) (âPlaintiffs filed a complaint seeking damages for the injuries they suf- fered as the result of defendantsâ alleged negligent failure to design, con- struct, maintain, or improve a portion of Highway 285.â); Burns v. Ohio Depât of Transp., 39 Ohio App. 3d 126, 127, 529 N.E.2d 1283, 1284 (1987) (âAt trial, plaintiff contended that defendant, ODOT, was liable for the negligent design, construction and maintenance of State Route 7.â). observed that the â[Washington State ]DOT promulgated and followed guidelines for systematically ranking median barrier projects according to their benefit/cost ratios,â pursuant to a âbasic policy that highway funding decisions should be based on the rational selection of projects, evaluating the costs and benefits, leading to difficult tradeoffs.â291 The plaintiffs argued that even if the Washington State DOTâs adoption of the ranking system was entitled to discretionary immunity, its initial calcu- lation of the benefit-cost ratio for the highway as zero (which re- sulted in the project not being selected for funding in 2003) was a ministerial application of the guidelines and was not entitled to discretionary immunity.292 However, the court con cluded that âa great deal of basic policy evaluation, judgment, and ex- pertiseâ was required for the Washington State DOT âto collect data about accident history and the cost of possible median barrier projects, and to devise a system to analyze the data and rank potential projects.â293 Therefore, the court decided that the Washington State DOTâs original 2003 calculation âwas part of the decision-making process going into formulating the priority arrayâ294 and was entitled to discretionary immunity.295 Courts may find either that the State DOTâs decision to defer capital maintenance is entitled to discretionary immunity, or otherwise that it is reasonable and not negligent, where the deci sion is based on a conscious balancing of risks and advan- tages (e.g., balancing of safety and economy). However, gener- ally speaking, a State DOT is subject to liability for failing to perform routine maintenance at a dangerous highway location even where capital improvements were reasonably deferred. As seen in Section V, these same principles often determine the out- come of cases involving unstable slope management programs. D. Conclusion The concept of a discretionary function exception is often misleading for State DOTs, because it implies that State DOTs retain immunity against negligence claims as long as the neg- ligence was in the exercise of judgment that was within the State DOTâs discretion. However, courts often analyze whether the State DOT was negligent in determining whether the State DOT qualifies for immunity, even for arguably discretionary ac- tivities such as highway planning or design.296 Further, because the State DOT has a duty to maintain highways in a reasonably safe condition for travel, the discretionary function exception does not apply to ministerial or operational activities such as 291 Id. at 482â83, 273 P.3d at 481. 292 Id. at 484, 273 P.3d at 482. 293 Id. at 483, 273 P.3d at 481. 294 Id. at 484, 273 P.3d at 482. 295 Id. at 485, 273 P.3d at 482. 296 Vance, supra note 164, at 22 (âIt is the conclusion of this writer that although it is basic to the concept of discretionary immunity that tort principles not be applied in the determination thereof, many of the cases are in fact decided by the application of tort principles.â); Dan B. Dobbs et al., The Law of Torts Â§ 344 (2d ed. 2019) (stating that courts tend to cast government activities as exercises of discretion only âafter the decision on immunity is reachedâ).
NCHRP LRD 82 25 the alternative with the least adverse impact.304 Therefore, con- sidering the risk of slope failure as part of the highway planning process can demonstrate that the agency exercised its discretion even if it does not select the highway route with the lowest risk of slope failure.305 On the other hand, if the agency learns of significant risk of slope failure associated with its planned highway route during the planning stage, and fails to adequately consider alternatives with reduced risk, that could indicate that the agency abused its discretion,306 which could result in courts concluding that the agencyâs planning decision is not entitled to the discretionary function exception. Furthermore, notwithstanding the discre- tionary nature of environmental procedural statutes, there may in some cases be substantive law that imposes on the agency an obligatory or mandatory duty to protect against the risk of slope failure (e.g., regulations related to highway development in landslide zones). The agencyâs planning decisions would likely not be entitled to the discretionary function exception where the agency fails to discharge its statutory duty.307 2. Relationship to Traffic Control While it is generally accepted that the original decision to locate the road is a planning function subject to discretionary immunity, a more difficult question concerns the decision to 304 See, e.g., 42 U.S.C. Â§Â 4332(C)(3) (2019). 305 See, e.g., Greater Yellowstone Coal. v. U.S. Forest Serv., 12 F. Supp. 3d 1268 (D. Idaho 2014) (concluding that the U.S. Forest Service acted within its discretion in deciding to locate a motorized vehicle trail travers ing âsome steep, but stable, mountain slopes along the corridor of the old roadbed,â id. at 1272, after considering a report identifying risk of mass instability due to âbuilding road on steep slopes,â id. at 1280); Ctr. for Sierra Nevada Conservation v. U.S. Forest Serv., 832 F. Supp. 2d 1138, 1161â62 (E.D. Cal. 2011) (concluding that U.S. Forest Service acted within its discretion in locating road through unstable slopes, where other alternative routes had similar exposure to unstable slopes). 306 See, e.g., Oregon Nat. Res. Council Fund v. Goodman, 505 F.3d 884, 894 (9th Cir. 2007) (concluding that U.S. Forest Service abused its discretion by failing to consider cumulative impact of road construc- tion projects and by concluding that its preferred alternative was not âpotentially unstableâ despite being located in terrain designated as hav- ing the second highest risk of landslides where there were available alternatives with lower risk of landslide); Se. Alaska Conservation Council v. Fed. Highway Admin., 649 F.3d 1050, 1059 (9th Cir. 2011) (holding that the U.S. Forest Service, FHWA, and Alaska DOT&PF failed to adequately consider alternatives to construction of a highway through a national forest). In Se. Alaska Conservation Council, the plaintiffs argued in part that the U.S. Forest Service, FHWA, and Alaska DOT&PF failed to adequately consider rockfall hazards associated with the planned road. Plaintiffsâ Motion to Vacate the Briefing Schedule or, in the Alternative, to Extend Time to File Opening Brief, Se. Alaska Conservation Council v. Fed. Highway Admin., No.Â 06-CV-00009 (D.Â Alaska Mar.Â 29, 2007). 307 But see Haggis v. City of Los Angeles, 22 Cal. 4th 490, 507, 993 P.2d 983 (2000) (upholding cityâs immunity for property damage due to slope failure, and concluding that municipal ordinances requiring, inter alia, a certificate of substandard condition and a grading permit for property in landslide areas, did not impose a mandatory duty on the city, where the city failed to either require CalTrans to obtain a grading permit before removing landslide debris from the base of a slope or to require CalTrans to show that its work would stabilize the slope). A. Highway Planning A State DOTâs decision to locate a road in an area prone to landslide or rockfall is typically considered protected under the discretionary function exception. As seen in the historic New York cases examined in Section III.B.1 (which predated the for- mulation of the discretionary function exception to the FTCA), it has long been recognized that roads may be constructed in areas prone to slope failure, and the governmentâs liability his- torically has not arisen from the decision to locate the road in such an area. Rather, in the event of slope failure, the govern- mentâs liability historically arose from failure to perform more ministerial dutiesâe.g., failure to maintain the road in a reason- ably safe condition for travel where the government is deemed to have notice of a dangerous condition. The discretionary function exception is consistent with those older decisions that predate it and provides a rationale for im- munizing planning decisions as opposed to more ministerial acts. For example, in Leonard v. Jackson,298 a highway traveler injured by rockfall sued the Oregon State Highway Commission for negligence âin planning and establishing said highway âad- jacent to a cliff which was approximately verticalâ so that âlarge rocks could and would free-fall on the traveled portion of said highway.ââ299 The Oregon Court of Appeals affirmed dismissal of the complaint â[t]o the extent that plaintiff âs allegations of negligence involve planning and designing of the highway,â as the government is âgenerally immune from liability for alleged negligence in planning and designing highways.â300 However, the court allowed the case to proceed to the extent the alleged negligence involved âfailing to remove loosened rocks above the highway,â as rock removal âmight constitute highway mainte- nance and could be a ministerial act.â301 1. Relationship to Environmental Review Although highway planning is the State DOT activity most likely to qualify for the discretionary function exception, not all highway planning decisions are entitled to immunity. The dis- cretionary function exception typically requires a showing that the planning decision involved balancing risks and advantages (which is akin to showing that the decision was not negligent). Balancing risks and advantages might be accomplished by analysis of alternatives to the planned highway route, which is a standard component of the planning process (including envi- ronmental review) for major highway projects.302 The National Environmental Policy Act (NEPA)303 and similar state-level envi ronmental procedural laws require an analysis of alterna- tives to significant highway development projects but typically do not contain a substantive requirement for the agency to select 298 488 P.2d 838, 6 Or. App. 613 (1971). 299 Id. at 838â39, 6 Or. App. at 614. 300 Id. at 839, 6 Or.Â App. at 615. 301 Id. 302 See, e.g., 23 C.F.R. Â§Â§Â 450.212(a)(3), 450.313(a)(3) (2019). 303 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. Â§Â§ 4321-4370m-12) (2019).
26 NCHRP LRD 82 are liable for dangerous conditions of public property.311 The county argued for the application of the discretionary function exception to the statute, which provided for immunity arising out of a plan or design, where âthere was discretionary approval of the plan or design prior to construction, and .Â .Â . substantial evidence supports the reasonableness of the plan or design.â312 The county contended that the temporary single-lane solution was provided for this rural road because there were several higher priority road sites that had been damaged in the winter storms.313 County engineering personnel testified that the single lane conformed to applicable guidelines, including line-of-sight requirements. 314 It was not disputed that the plan received dis- cretionary approval from the county prior to construction. 315 The California Court of Appeal in Reddington thus deter- mined that the county was immune from suit under the dis- cretionary function exception and expressly rejected the plain- tiff âs argument that reopening a road after a landslide is not subject to discretionary immunity.316 In determining that the countyâs reopening decision was immune, the court found that the county presented substantial evidence that its decision was reasonable,317 which could have supported a conclusion that the county was not negligent rather than immune from suit for negligence. In other cases in other states, where the State DOT reopens a road after a landslide or rockfall and a traveler is sub- sequently injured in a collision involving landslide or rockfall debris, the courts have used similar logic to conclude that the State DOT was not negligent in reopening the highway, and thus not liable for injury.318 B. Highway Design When plaintiffs incur personal injury or property damage as a result of highway slope failure, State DOTs will seek to invoke the discretionary function exception to liability for allegations of negligent design of the highway. However, courts typically distinguish between planning-related decisions that involve policy considerations, such as the decision to reroute a highway or the decision to expand the number of lanes, and the actual design activities that implement that decision, such as devel- opment of drawings and specifications.319 Generally speaking, once the deci sion is made to locate a highway in an area prone 311 Id. 312 Id. at *4. 313 Id. 314 Id. 315 Id. 316 Id. 317 Id. 318 See, e.g., Beck v. State, Depât of Transp. & Pub. Facilities, 837 P.2d 105, 108â09 (Alaska 1992) (upholding jury instruction that resulted in a finding that reopened road was not in a dangerous condition, but reversing decision in favor of State due to potential juror prejudice); Windland v. Ohio Depât of Transp., 2005 Ohio 859 (Ct. Claims Ohio Feb.Â 4, 2005). 319 See, e.g., Moloso v. State, 644 P.2d 205, 218â19 (Alaska 1982); Burns v. Ohio Depât of Transp., 39 Ohio App. 3d 126, 128, 529 N.E.2d 1283, 1285 (1987). keep the road open given the governmentâs knowledge of poten- tial slope failure hazards. For example, in the historical New York cases examined in Section III.B.1, although the state gov- ernment was not held liable for locating roads in areas prone to rockfall, the courts recognized that the state government might have an obligation to close the road if it could not be kept rea- sonably safe for travel. Under a discretionary immunity frame- work, where there is injury due to slope failure, and the State DOT was aware of the potential for slope failure at the time of the injury, the State DOT will argue that its decision to keep the road open (like its original decision to locate the road in an area prone to slope failure) was a policy decision subject to discre- tionary immunity. This is generally a successful strategy, as long as the State DOT is not deemed to have knowledge of an actual slope failure, and as long as the State DOT can show that it bal- anced the risks and advantages of leaving the road open given the known potential for slope failure.308 Using the same logic, the State DOT will contend that its deci sion to reopen a road after a slope failure is a policy decision subject to discretionary immunity. This would seem to be a dif- ficult position to argue, because if the road has been closed due to a landslide or rockfall, then the State DOT has actual knowl- edge that a dangerous condition existed, and the hazard is not speculative. When the road is reopened after State DOT main- tenance activities (such as clearing the debris from the road), and a traveler subsequently experiences injury or damage due to debris, that would seem to suggest that the State DOTâs main- tenance activities were inadequate. However, highway agencies in this situation have had a degree of success in avoiding liability for the decision to reopen or partially reopen a road or lanes to traffic after a slope failure, as long as the highway agency can show that it actually exercised its discretion and made an in- formed decision.309 For example, in Reddington v. County of Santa Barbara,310 after a county road was covered by a landslide, the county constructed a barrier to contain the debris and paved a sin- gle lane around the debris, near a curve in the road, in order to reopen the road for traffic on a temporary basis, pending a more permanent solution. A cyclist traveling through the curve was injured when he was hit by a vehicle traveling in the op- posite direction through the single lane, and the cyclist filed suit under a California statute providing that public entities 308 See, e.g., Karr v. State, 53 Wash. App. 1, 10, 765 P.2d 316, 321 (1988) (holding the State of Washington immune for personal injury resulting from the eruption of Mt. St. Helens, including a âmajor land- slideâ which had been âspeculatedâ in advance by the Stateâs experts, where the Stateâs decision to only partially close access routes including State Highway 504 âwas a considered policy decision, balancing risks and objectivesâ). 309 See, e.g., Burns v. United States, 291 F. Supp. 3d 922, 935 (D. Ariz. 2017), affâd, 772 Fed. Appx. 545 (9th Cir. 2019) (â[T]he decision whether to close Road 557 involved an element of judgment and was based on public policy considerations. Plaintiff âs claim is barred by the discretionary function exception to the FTCA.â). 310 No. B218196, 2010 Cal. App. Unpub. LEXIS 3570 (Cal. Ct. App. May 17, 2010).
NCHRP LRD 82 27 initial design and construction, âthe state is required to take the steps necessary to return the road to the same general state of being, repair, or efficiency as initially constructed, but nothing more,â so that the State DOT is only required to maintain the highway in the condition âdeemed to be acceptable during the [initial] design stage.â328 Under the California design immu- nity statute, a âchange of physical conditions may cause a pub- lic entity to lose its design immunity.â329 Once the highway is no longer âin conformity with a plan or design or a standard which reasonably could be approved,â330 immunity arising from the original approved design remains in effect âfor a reasonable period of time sufficient to permit the public entity to obtain funds and carry out remedial work necessary to allow such pub- lic property to be in conformity with a plan or design approved by the legislative body of the public entity.â331 If the public entity cannot obtain funding for the remedial work, immunity arising from the original approved design âshall remain so long as such public entity shall reasonably attempt to provide adequate warn- ings of the existence of the condition not conforming to the ap- proved plan or design or to the approved standard.â332 C. Highway Construction Although the decision to construct a road in an area prone to slope failure is typically a discretionary activity, the actual con- struction activities are not discretionary and must be performed according to the approved design drawings and specifications. Nonconformance of the construction work with the engineered design (e.g., failure to adhere to the sitework specifications for excavation or compaction) could give rise to liability in negli- gence when the slope subsequently fails. Plaintiffs in slope fail- ure litigation against highway agencies typically allege negligent construction (along with negligent planning, design, and/or maintenance). However, the cases rarely are decided based on negligent construction. This is likely due in part to the difficulty for plaintiffs to prove, after a slope failure has occurred, that construction activities were improperly performed. The State DOTâs inspection records presumably indicate that, at the time that highway construction was substantially complete, the con- struction work conformed to the plans and specifications. Even if the inspection records are in error, they can be useful to ab- solve the contractor from liability for negligent construction, and the State DOT typically retains immunity for negligent in- spection.333 Finally, even if negligent construction left the road in a dangerous condition, plaintiffs will typically allege that the 328 Medina v. State, 35 P.3d 443, 457 (Colo. 2001). 329 Alvis, 178 Cal. App. 4th at 539, 100 Cal. Rptr. 3d at 497. 330 Cal. Govât Code Â§ 830.6 (2019). 331 Id. 332 Id. 333 See, e.g., Haggis v. City of Los Angeles, 22 Cal. 4th 490, 504â05, 993 P.2d 983, 991, 93 Cal. Rptr. 2d 327, 336 (2000) (holding that city was immune from suit for negligent inspection, in action brought by adja- cent landowner whose home was damaged by landslide, where city had previously determined the slope was unstable but failed to record a cer- tificate of substandard condition). to landslides or rockfalls, the State DOT (or its designer) has a duty of care to develop a reasonable design. This likely includes accounting for slope failure hazards in the design. In Burns v. Ohio Department of Transportation,320 a case involving death to travelers due to rockfall, the Ohio Court of Appeals reversed a claims court ruling that the Ohio DOT was entitled to discretionary immunity for highway design. Where the plaintiff presented evidence that the highway was designed without âa mechanism to either control the potential landslides or restrict landslide debris from entering paved areas,â despite the fact that protective devices âsuch as rock bolts, concrete re- taining walls, fences to catch debris, wire mesh over the slope, or guard rails or rail fences to catch larger pieces of falling rock would have been availableâ321 at the time of design, the claims court should have considered whether the design was negligent rather than deeming the OhioÂ DOT to be immune for negli- gent design. Thus, even in the cases that recognize a form of âdesign immunity,â the design must conform to âthe normally expected standards of highway design in effectâ at the time of the design.322 On the other hand, in Alvis v. County of Ventura,323 the California Court of Appeal affirmed a lower court ruling that Ventura County was entitled to design immunity for a retaining wall alongside a county road that failed in a landslide, resulting in deaths and extensive property damage.324 Plaintiffs alleged that the failure to install weep holes and other drainage features in the wall constituted negligent maintenance, but the court concluded that these were elements of the design.325 Evidence indicated that the engineers considered such drainage fea- tures âduring design reviewâ but did not include them because they âconcurred that the wall would be self-draining.â326 Sub- sequently, the county approved the design (which was sealed by professional engineers) on the recommendation of a pro- fessional engineer, who âdeclared that the project has been de- signed with reasonable professional engineering judgment.â327 Although the court affirmed that these findings supported the countyâs immunity from liability for negligent design, the same findings could have supported a ruling that the countyâs design was not negligent. Highway design and safety standards change over time, and highway conditions deteriorate over time, so a highway that was originally constructed according to accepted design standards might fail to conform to current design standards. This raises the question whether the State DOTâs original design remains adequate, or whether the State DOT must upgrade the highway to current design standards. Some cases conclude that when a highway is considered to be in a dangerous condition after its 320 39 Ohio App. 3d 126, 529 N.E.2d 1283 (1987). 321 Id. at 127, 529 N.E.2d 1285. 322 Id. 323 178 Cal. App. 4th 536, 100 Cal. Rptr. 3d 494 (2009). 324 Id. at 539, 100 Cal. Rptr. at 497. 325 Id. at 550â51, 100 Cal. Rptr. 3d at 506. 326 Id. at 555, 100 Cal. Rptr. 3d at 510. 327 Id. at 554, 100 Cal. Rptr. 3d at 509.
28 NCHRP LRD 82 2. Damage to Adjacent Real Property Apart from cases such as Moloso where personal injury oc- curs during construction, most slope failure cases against high- way departments involving ânegligent constructionâ (or ânegli- gent excavation,â ânegligent compaction,â etc.) tend to be older cases relating to property damage alleged by owners of real prop- erty adjacent to the highway. Real property owners are differ- ently situated from travelers on the highway, to whom the State DOT owes a duty to maintain the highway in a reasonably safe condition for travel, which is one reason that these plaintiffs al- lege negligent construction rather than negligent maintenance. Also, many of these cases might be more accurately classified as negligent design cases, as the State DOT is alleged to have failed to adequately protect against damage to adjacent property in the construction of the highway as designed. However, cases involving damage to adjacent property due to highway slope failure rarely consider whether the design was reasonable. One reason for failing to distinguish between design and construc- tion is that these cases typically sound in inverse condemnation, or similar âtakingsâ theory, for which the government is not en- titled to immunity.342 In fact, under an inverse condemnation theory, where the construction of a highway results in landslide or rockfall damage to adjacent property, the government is typi- cally subject to strict liability, regardless of whether either the design or the construction was negligent.343 In the cases that 342 Ellis v. State of California ex rel. Depât of Transp., 48 Cal. App. 4th 1334, 1343, 51 Cal. Rptr. 2d 458, 464 (1996), review granted, 54 Cal. Rptr. 2d 42, 917 P.2d 1165 (1996), and review dismissed, 67 Cal. Rptr. 2d 1,941 P.2d 1121 (1997) (âTort law and inverse condemnation are not the same. Inverse condemnation is constitutionally based.â). 343 See, e.g., Albers v. Los Angeles Cty., 62 Cal. 2d 250, 255, 398 P.2d 129, 132 (1965) (holding county liable in inverse condemnation for landslide damage resulting from excavation by county highway depart- ment, despite finding âan absence of negligenceâ); N. Pac. Ry. Co. v. Morton Cty., 131 N.W.2d 557, 565â66 (N.D. 1964) (holding that North Dakota State Highway Department and county would be jointly liable in inverse condemnation for landslide damage to plaintiff âs property, if the landslide was caused by the Highway Departmentâs construction of a county road, and that the tort theory of concurrent cause did not apply); Ellis v. State of California ex rel. Depât of Transp., 48 Cal. App. 4th 1334, 1337, 51 Cal. Rptr. 2d 458, 460 (1996), review granted, 917 P.2d 1165 (Cal. 1996), and review dismissed, 941 P.2d 1121 (Cal. 1997) (concluding that negligence concept of comparative fault did not apply to inverse condemnation case where âlandslide was caused in part by road cuts made by Caltrans to build and widen Pacific Coast Highwayâ and âwas also caused in part by road cuts made by the City,â so that Caltrans and City were jointly and severally liable for damage to real property); Blau v. City of Los Angeles, 32 Cal. App. 3d 77, 83â85, 107 Cal. Rptr. 727, 732â33 (Ct. App. 1973) (reversing judgment in favor of city, and concluding that tort concepts of concurrent cause and con- tributory negligence did not apply, where plaintiffs proceeded on inverse condemnation theory for landslide damage and expressly aban- doned their allegations of negligent construction of streets and high- ways); Commonw. Depât of Highways v. Widner, 388 S.W.2d 583, 585â 86 (Ky. 1965) (affirming judgment against Kentucky Department of Highways for landslide damage to adjacent property resulting from highway construction and maintenance, and rejecting argument of Department of Highways that its liability should have been analyzed under a negligence standard). State DOT had knowledge of the dangerous condition (in order to invoke the duty to maintain the road in a reasonably safe condition for travel), and thus alleged negligent maintenance (rather than negligent construction) becomes the supervening or proximate cause of injury. 1. Injury During Construction When slope failure occurs while the construction work is in progress, the above considerations do not really apply, and a negligent construction allegation is more viable. In Moloso v. State,334 construction workers were killed by a rockfall on an AlaskaÂ DOT&PF highway project.335 There was evidence that the contractorâs slope excavation was steeper than provided on the plans specified by a state geologist, resulting in the project engineerâs issuance of a stop-work order.336 However, the stateâs senior construction engineer overruled the stop-work order, and allowed construction to proceed by issuing a change order accepting the contractorâs alternative excavation plan as a value- engineering proposal.337 Overturning the trial courtâs directed verdict in favor of AlaskaÂ DOT&PF, the Supreme Court of Alaska concluded that the AlaskaÂ DOT&PFâs decisions to ac- cept the contractorâs value-engineering proposal, ârequiring a steeper excavation of the west bank; .Â .Â . the decision to go ahead with the steep slope cut after the stop-work order; and .Â .Â . the decision to cut at this steeper slope without adopting other precautions,â were not âdesign decisionsâ338 entitled to discre- tionary immunity. There was evidence of additional negligence during construction, including the AlaskaÂ DOT&PFâs failure to follow the recommendations of its geotechnical engineer to conduct a pre-bid conference to inform potential contractors of the âconstruction hazards of the areaâ and to have a stability ex- pert onsite during excavation âto evaluate the rock conditions, to advise of unsafe conditions, and to take appropriate action.â339 Further, there was evidence that the contractorâs construction methods, including âthe removal of talus material; seismic ac- celeration by blasting; the vibration of the caterpillar; .Â .Â . the lack of stabilizing methods, such as rock-bolting; the steep angle cut into the slope; excavating from the bottom rather than from the top down; and failure to identify and remove the overhang- ing rock,â340 contributed to the rockfall. Because it was unclear whether the AlaskaÂ DOT&PF had taken reasonable precau- tions, or whether the AlaskaÂ DOT&PF could and did delegate that responsibility to the contractor, the Alaska DOT&PF was not entitled to immunity and the plaintiffs were entitled to a determination whether the Alaska DOT&PFâs activities during construction constituted negligence.341 334 Moloso v. State, 644 P.2d 205, 208 (Alaska 1982). 335 Id. at 208. 336 Id. at 210. 337 Id. 338 Id. at 219. 339 Id. at 215. 340 Id. at 215â16. 341 Id. at 221.
NCHRP LRD 82 29 Pennsylvania statute waives immunity for both dangerous con- ditions of streets and dangerous conditions of real property under the governmentâs care, custody, or control.354 Although holding the county liable in negligence, the court did not ap- pear to consider whether the work was performed negligently, concluding instead that âit seems that the removal of eight tons of material was the cause of the landslide,â355 which sounds more like strict liability, or at least res ipsa loquitor, than traditional negligence analysis. Although there is a relatively low bar for adjacent land- owners to hold the State DOT liable for ânegligent constructionâ where the State DOT has engaged in construction activities on the slope that subsequently fails, that is not the case when the link between the slope failure and the alleged ânegligent con- structionâ is more attenuated. For example, a number of cases involve allegations that a slope failure or rockfall is caused by water diverted to the slope as a result of highway construction. Again, these cases rarely discuss whether the stormwater design for the project was reasonable, as the plaintiffs tend to focus on the fact that the slope failure occurred after the road was con- structed and (as in Jordan) ask the court to âconnect the dotsâ and conclude that the road construction must have caused the slope failure. However, in this situation, the courts tend to re- quire plaintiffs to prove that the highway agency actually caused a diversion of water that resulted in the slope failure, which is often difficult for plaintiffs to do.356 For example, in DiBlasi v. City of Seattle,357 a landowner claimed property damage due to a âlandslide caused by sur- face waters that are collected and channeled on a city street and thrust onto the property of another in a manner different from the natural flow.â358 Summary judgment in favor of the land- owner was reversed, with the Supreme Court of Washington rejecting the notion that the duty to maintain streets imposed on highway owners was âa broad tort duty to exercise reasonable care toward the general publicâ such as adjoining land owners, as opposed to the traveling public.359 The court concluded that the city could be liable in negligence in that situation, but re- manded to the trial court to determine âwhether the Cityâs street did in fact act to collect, channel and thrust surface waters onto DiBlasiâs property in a manner different from the natural flow.â360 Similarly, in Klein v. City of Keokuk,361 the Iowa Court of Appeals affirmed a trial court judgment in favor of a city, where 354 Id. 355 Id. at *13. 356 See, e.g., Hansch v. Los Angeles Cty., 201 Cal. App. 3d 1242, 247 Cal. Rptr. 809, 811â812 n.5 (Ct. App. 1988) (awarding costs to Caltrans, where plaintiffs alleged property damage due to a landslide âtriggered by high subsurface water levelsâ and where âPlaintiffsâ claim against the State was based on hillside cuts made by the State in constructing, widening, and maintaining Pacific Coast Highwayâ). 357 136 Wash. 2d. 865, 969 P.2d 10 (1988). 358 Id. at 867-68, 969 P.2d at 10. 359 Id. at 881-82, 969 P.2d at 18. 360 Id. at 867-68, 969 P.2d at 10. 361 438 N.W.2d 22 (Iowa Ct. App. 1989). are evaluated on a negligence theory, where a highway slope or embankment fails, resulting in damage to adjacent property, the landowner plaintiff has a relatively low bar to show that it is en- titled to recover due to the State DOTâs ânegligent constructionâ of the highway, without being required to distinguish between design, construction, or maintenance activities. For example, in Patton v. State,344 landowners who lived âon the top of a steep hill some 100 feet back from the highway known as U.S. Route 24â alleged that the Illinois Division of Highways, âwhile constructing this highway in 1954, was negli- gent in cutting back the hillside in front of claimantsâ house,â345 and âthat the negligent acts of the Division of Highways caused the property to become valueless.â346 Undisputed testimony in- dicated that âthere had been no landslides for half a century on the claimantsâ property and other property in the vicinity prior to cutbacks in the base of the hillsides,â347 but after construc- tion there were landslides in 1958, 1961, and 1964.348 The Illinois Court of Claims found the following: [T]he Division of Highways was negligent in some, if not all, of the following ways: when it represented to the claimants that it would not cut into the hillside; when it gave no notice of the cut which was made in the spring of 1954; when it failed to compact or tamp down the raw earth exposed by the cut; when it failed to shore up the hillside, or put up any sort of retaining wall; and when it failed to anticipate that its cut might cause a landslide in front of the claimantsâ house.349 Although some of these activities were almost certainly attribut- able to design, or perhaps to negligent maintenance after each landslide, the court simply held the Division of Highways liable to the landowners for ânegligent excavation.â350 Similarly, in Jordan v. Pennsylvania Department of Transportation,351 a county was held liable for negligence, where the county had excavated 8 tons of soil at the base of a previously stable hillside to widen the right-of-way of a county road, and the following year a landslide occurred. The court opinion does not discuss any evidence of negligent conduct by the county, and in fact includes the testimony of engineers on behalf of the county opining that the countyâs road construction activities did not cause the landslide.352 There is no discussion in the court opinion of either negligent design or failure of the construction work to conform to the design, and whether the county might have been entitled to discretionary immunity.353 The court did conclude that the excavation activities triggered Pennsylvania statutory waivers of governmental immunity, regardless of whether the excavated slope was part of the road, because the 344 27 Ill. Ct. Cl. 140 (1971). 345 Id. 346 Id. at 141. 347 Id. at 148. 348 Id. at 143â44. 349 Id. at 146â47. 350 Id. at 146. 351 No. 2450 C.D. 2010, 2011 Pa. Commonw. Unpub. LEXIS 530 (July 1, 2011). 352 Id. 353 Id.
30 NCHRP LRD 82 identify a âmanageableâ number of high-risk locations to pro- actively mitigate.370 Considering the high cost of initiating such a system, including the cost of inspections, the experts opined that the city acted reasonably by not initiating an unstable slope management program such as an RHRS.371 The trial court granted summary judgment to the city, leaving only the State of Montana as a defendant.372 Although the Montana DOT did have an RHRS in place at the time, it likely did not include the Rimrocks site because Highway 3 was located along the ridge, rather than below it, and thus travelers on the highway were not at risk of being impact- ed by rockfall. Instead, the Montana DOTâs experts (âvarious Montana Department of Transportation employees, engineers, hydrologists, geologists, and water resources specialistsâ373) testified primarily that the 1963 relocation of HighwayÂ 3, and specifically the placement of the culvert, âwas not a substantial factor in causing the rockfall.â374 Montana DOT engineer Paul Ferry testified that âthe department does extensive research prior to construction on the flow of water and the path highways should take.â375 A jury ultimately determined that the Montana DOT was not negligent.376 Further, the jury determined that the Montana DOT contributed 0%, and the plaintiffs contributed 100%, to the cause of the plaintiffsâ damages377 (possibly because the destroyed home had been constructed in the 1970s, and purchased by the plaintiffs in the 1990s,378 both long after con- struction of HighwayÂ 3 and the culvert in question). Therefore, although the Montana DOT need not have been negligent to be liable for inverse condemnation, the Montana DOT was not liable because the plaintiffs, and not the Montana DOT, were the 370 Report or Affidavit of George Machan, P.E., Benjamin A. George, P.E., Deschner v. City of Billings, No.Â DV5620100001800 (Mont.Â Dist. MayÂ 6, 2015). 371 Id. 372 Deschner, 386 Mont. at 343, 390 P.3d at 154. 373 Id. 374 Id. at 343â44, 390 P.3d at 154. See also Ashley Nerbovig, Geolo- gist: Water Flow Did Not Cause Rock to Fall on House, Billings Gazette, Sept.Â 1, 2015, available at https://billingsgazette.com/news/ state-and-regional/crime-and-courts/geologist-water-flow-did-not- cause-rock-to-fall-on/article_6a56dc87-b380-5aac-b2f0-a66ca4f11ea5. html. 375 Ashley Nerbovig, Man Who Survived Rock Smashing into House Says Disaster Was Caused by Road Construction, Billings Gazette, Aug.Â 25, 2015, available at https://billingsgazette.com/news/state-and- regional/crime-and-courts/man-who-survived-rock-smashing-into- house-says-disaster-was/article_49856022-48d1-53a0-97a9- d8018b26f0de.html. 376 Deschner, 386 Mont. at 345, 390 P.3d at 155. See also Ashley Nerbovig, Jury Rules Against Homeowners on All Counts in Rimrocks House Damage Trial, Billings Gazette, Sept.Â 3, 2015, available at https://billingsgazette.com/news/state-and-regional/crime-and- courts/jury-rules-against-homeowners-on-all-counts-in-rimrocks- house/article_a87933f2-ebf8-5255-b91d-6a48d4dd0e2d.html. 377 Deschner, 386 Mont. at 345, 390 P.3d at 155. 378 Id. at 343, 390 P.3d at 153. the plaintiffs alleged that the cityâs negligent construction of a curbing and paving project resulted in the diversion of storm- water runoff onto the plaintiffsâ property, causing a mudslide.362 However, evidence in the record indicated that the mudslide was triggered by a heavy rainfall, and the trial court concluded (and the Iowa Court of Appeals affirmed) that âthe plaintiffs had failed to prove causation.â363 In Deschner v. State of Montana, Department of Highways,364 the Montana DOT avoided liability for property damage where a jury determined that the Montana DOTâs construction of a highway along a ridge did not cause a rockfall that occurred downslope from the highway, damaging property below. The plaintiffs sued the State of Montana for both negligence and inverse condemnation, alleging that the Montana DOTâs 1963 relocation of HighwayÂ 3 closer to the edge of the slope (known as the âRimrocksâ), and specifically the installation of a drain- age culvert under the highway, resulted in an âunnatural water- wayâ which prematurely eroded the slope and caused the 2010 rockfall that destroyed their home at the foot of the slope.365 The plaintiffs also sued the City of Billings, which owned the Rimrocks slope property from which the rockfall occurred, for negligent maintenance.366 Professional engineers acting as expert consultants for the city testified that it would have been âunreasonable and infea- sibleâ for the city to have engaged in âproactive rockfall main- tenanceâ of the slope.367 The experts testified that there is no standard for rockfall hazard ratings of residential areas, as there is for highways. The RHRS method used by State DOTs âwould only be partially applicableâ to assessing residential risk, and the city would have to modify it âto make the assessment meth- odology relevant to the risk related to the residential and park environment associated with the Rimrocks, as opposed to the risks to transportation infrastructure and vehicular traffic.â368 Further, citing Rockfall: Characterization and Control,369 the ex- perts testified that an RHRS could not have predicted rockfall events, and likely would not have allowed the City of Billings to 362 Id. at 23. 363 Id. at 24. 364 386 Mont.Â 342, 390 P.3d 152 (2017). 365 Ashley Nerbovig, Coupleâs Civil Suit Against City, State Opens in Case of Falling Rimrocks, Billings Gazette, Aug.Â 24, 2015, available at https://billingsgazette.com/news/state-and-regional/crime-and- courts/couple-s-civil-suit-against-city-state-opens-in-case/article_ df826615-e99c-5e72-99db-b11ea63d12e6.html. See also Deschner v. State of Montana, Depât of Highways, 386 Mont. at 343, 390 P.3d at 154 (Plaintiffs âcontended that the Stateâs construction and placement of Highway 3 and Culvert 239 caused an unnatural increase in the amount of water that ran off the highway onto the rockfall site, ultimately caus- ing the slab to fall onto their home.â). 366 Nerbovig, supra note 365. 367 Report or Affidavit of George Machan, P.E., Benjamin A. George, P.E., Deschner v. City of Billings, No.Â DV5620100001800 (Mont.Â Dist. MayÂ 6, 2015). 368 Id. 369 Transportation Research Board, Rockfall: Character- ization and Control (A. Keith Turner & Robert L. Schuster eds., 2016).
NCHRP LRD 82 31 elementsâ384 only if the State DOT âhad actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dan- gerous condition.â385 The trial court granted summary judgment in favor of the Pennsylvania Department of Transportation (PennDOT) because the plaintiff failed to allege or show proof that PennDOT had actual written notice of the dangerous con- dition. However, the Commonwealth Court reversed, holding that PennDOT could be liable under a separate section of the sovereign immunity statute, which applied to dangerous con- ditions of âCommonwealth real estateâ and did not contain a notice requirement for dangerous conditions created by natu- ral elements.386 Under this dangerous condition of real estate, PennDOT could be liable under the plaintiff âs allegation âthat DOT was negligent in its maintenance of the hillside area adja- cent to RouteÂ 11.â387 Holding that the plaintiff had a viable negli- gence claim against PennDOT for failing to maintain the slope, the court concluded that âit could not be said that the damage resulted from a dangerous condition of roadwayâ but rather âthe dangerous condition was of the land itself.â388 That same year, in Schlitters v. State,389 the Colorado Court of Appeals concluded that the duty to maintain the highway includes the duty to maintain adjacent slopes. A boulder fell from a rock slope adjacent to the highway and collided with the vehicle of the plaintiffs, who alleged that the Colorado DOT had knowledge of the dangerous condition and ânegligently failed to install devices that would have prevented boulders from this unstable slope from falling onto the travelled portion of the highway.â390 The trial court dismissed the lawsuit, agreeing with the Colorado DOT that its âduty of care was limited to physical defects in the paved highway surface and .Â .Â . did not extend to boulders falling onto the highway.â391 The Colorado Court of Ap- peals reversed, concluding that failure to maintain the highway in a reasonably safe condition could include âfailure to main- tain the roadside so as to avoid the presence of obstructions on the traveled portion of a state highway.â392 Thus, the Colorado court reached the same conclusion as the Pennsylvania court, i.e., that the State DOT could be liable for failing to maintain the adjacent slope. However, the Pennsylvania court reached that conclusion by finding that the adjacent slope was not part of the highway, while the Colorado court reached that conclusion by finding that the adjacent slope was part of the highway. A few years after Schlitters, the Colorado Court of Appeals reaffirmed that the State DOTâs duty to maintain the highway in a reasonably safe condition for travel extends to slopes adja- cent to the highway, even if the adjacent property is owned by 384 Id. at 505, 560 A.2d 287. 385 Id. at 503, 560 A.2d at 286. 386 Id. at 505, 560 A.2d at 287. 387 Id. at 502, 560 A.2d at 286. 388 Id. at 506, 560 A.2d at 288. 389 787 P.2d 656 (Colo. App. 1989). 390 Id. at 658. 391 Id. at 657. 392 Id. at 658. sole cause of the plaintiffsâ damages.379 This decision was upheld by the Montana Supreme Court in 2017.380 D. Highway Maintenance 1. Injury to Travelers State DOTs have a well-recognized, nondiscretionary duty to maintain the highway in a reasonably safe condition for travel. Therefore, when a traveler on the highway suffers personal injury or property damage as a result of rockfall or landslide, liability to the State DOT is most likely to arise from a failure of its duty to maintain, i.e., negligent maintenance. The mere fact that damage to a traveler arises out of a slope failure does not mean that the State DOT is strictly liable; the plaintiff still must establish that its injury was caused by the State DOTâs negligence, or its failure to discharge a duty owed to the traveler. The duty to maintain entails keeping the highway in the âgeneral state of being, re- pair, or efficiency as initially constructed,â to maintain the same general level of safety or ârisk of injuryâ as âthat deemed to be acceptable during the design stage.â381 Routine maintenance ac- tivities include regular slope inspections, clearing debris from the highway, and clearing catchment ditches. When the State DOT is deemed to have notice of a dangerous condition on the highway (either actual notice or constructive notice arising out of its inspection obligation), failure to take timely action to cor- rect the dangerous condition will subject it to liability for dam- ages arising from the condition. These corrective measures (e.g., where erosion has made the slope more dangerous than initially constructed) may include rock scaling or excavation of loose material, and the installation of protective devices such as rock bolts, soil nails, barriers, and netting. Depending on the degree of the hazard, the State DOT may have an obligation to close the road until the corrective measures are taken, in order to protect travelers. Both the routine maintenance activities and the more extensive corrective measures (where there is notice of a danger- ous condition) are widely viewed as ministerial and not covered by discretionary immunity. In slope failure cases, it is widely recognized that the duty to maintain the highway in a reasonably safe condition in- cludes a duty to maintain the slopes adjacent to the highway in a reasonably safe condition to prevent danger to travelers from slope failure. In 1989, in Trenco, Inc. v. Commmonwealth, Department of Transportation,382 the Commonwealth Court of Pennsylvania concluded that a State DOT could be liable for landslide damage to vehicles on the highway, despite the fact that ârock slides are natural phenomenaâ383 and the State DOT did not have actual notice of the landslide prior to the accident. Under Pennsylvania statute, sovereign immunity was waived for âdangerous condition[s] of highways .Â .Â . created by natural 379 Id. at 348, 390 P.3d at 157. 380 Id. at 349, 390 P.3d at 158. 381 Medina v. State, 35 P.3d 443, 457 (Colo. 2001). 382 126 Pa. Commw. 501, 560 A.2d 285 (1989). 383 Id. at 505, 560 A.2d 288.
32 NCHRP LRD 82 2. Damage to Adjacent Real Property Where highway slope failure results in damage to adjacent real property, the adjacent landowner typically asserts negligent maintenance in its lawsuit against the State DOT. It is important to understand that the duty to maintain the highway in a rea- sonably safe condition for travel is a duty owed to the traveler on the highway, and not a duty owed to the adjacent land owner.400 However, courts regularly rely on the waiver of sovereign im- munity for dangerous highway conditions in order to find State DOTs liable for damage to adjacent property caused by negli- gent maintenance of the highway. Similar to the landowner cases in which State DOTs are sued for negligent construction (which often involve stormwater diversion, as discussed in Sec- tion IV.C.2), the negligent maintenance cases often involve the State DOTâs allegedly negligent maintenance of stormwater drainage systems. However, although plaintiffs alleging negli- gent construction have a difficult time proving that construc- tion of the highway caused diversion of water resulting in slope failure, it is typically easier for plaintiffs to prove negligent main- tenance of stormwater drainage devices and thus prevail against the State DOT. For example, in Commonwealth, Department of Transpor- tation v. Consolidated Rail Corp.,401 a railroad owner alleged that PennDOTâs negligent maintenance of its drainage struc- tures caused a landslide, which shifted the adjacent railroad tracks resulting in âa train wreck involving substantial property damage.â402 Testimony at trial from eyewitnesses and experts indicated that the landslide âwas caused by an accumulation of water which flowed from a steep hillside above,â and âthat this water should have flowed through DOTâs cross-drain under neath the state highway but that DOTâs conduits had been blocked for some time prior to the train wreck.â403 The trial court entered judgment against PennDOT, and PennDOT appealed, asserting that under the Pennsylvania statutory waiver of sover- eign immunity, PennDOT was only liable for a dangerous high- way condition caused by ânatural elementsâ if PennDOT âhas received prior written notice.â404 However, the Commonwealth Court affirmed, holding that the prior written notice require- ment was not applicable to âcomplaints alleging damage caused by negligently maintained highway drainage facilities.â405 Similarly, in Hamilton v. State,406 the Oregon Court of Appeals concluded that a city could be liable for negligent maintenance 400 DiBlasi v. City of Seattle, 136 Wash. 2d 865, 882, 969 P.2d 10, 18 (1998) (âFurthermore, the distinction between the duty owed to the traveling public versus the adjoining landowner is logical considering that streets are constructed to benefit those who use them, not those who simply live alongside them (although it can be assumed, of course, that adjoining property owners use the streets to come and go from their homes).â). 401 102 Pa. Commw. 611, 519 A.2d 1058 (1986). 402 Id. at 612, 519 A.2d at 1059. 403 Id. at 616, 519 A.2d at 1061. 404 Id. at 616, 519 A.2d at 1060. 405 Id. at 616, 519 A.2d at 1061. 406 42 Or. App. 821, 601 P.2d 882 (1979). others and even when the dangerous condition on the adjacent property is created by others. In Belfiore v. Colorado State De- partment of Highways,393 a vehicle on InterstateÂ 70 was hit by a boulder, injuring the plaintiff. The plaintiff âs complaint against the Colorado DOT alleged that the dangerous condition was caused by the adjacent landownerâs blasting activities.394 The Colorado DOT moved to dismiss, arguing that blasting on the adjacent property was not a dangerous condition of a state high- way for which sovereign immunity is waived.395 The trial court dismissed the complaint, because the dangerous condition was alleged to have been caused by the adjacent landowner, and not by the Colorado DOT.396 The Colorado Court of Appeals re- versed, concluding that the allegation of blasting adjacent to the highway sufficiently alleged âa dangerous condition of a public highway.â397 Further, the complaint alleged that the Colorado DOT âhad notice that the blasting activities on the property ad- jacent to the highway created a potentially dangerous condition affecting the safety of the motorists using the highway and that appropriate steps were not taken to avoid the danger.â398 There- fore, âthe complaint sufficiently stated a claim for injuries result- ing from the dangerous condition and negligent maintenance of a public highway.â399 It is now widely understood that the State DOTâs duty to maintain the highway encompasses a duty to maintain the ad- jacent slopes, which entails routine inspection and clearing of debris from the roadway and catchment ditches. If the State DOT can be charged with notice of a dangerous condition, either actual notice or constructive notice arising from its in- spection obligation, the State DOTâs maintenance duty requires it to take additional steps as required to make the highway rea- sonably safe for travel, which may include excavation or rock scaling and the installation of protective devices. Cases involving injured travelers also often allege that the State DOT failed to satisfy its âduty to warn.â Depending on the circumstances, the duty to maintain the highway in a reasonably safe condition for travel may include the installation of warning signs or signals at certain locations. However, in slope failure cases involving injury to travelers, the courts rarely find the State DOT liable solely for negligent failure to warn, independent of its broader duty to maintain. Likewise, where the State DOT has knowledge of a dangerous condition, it typically cannot avoid liability simply by posting warning signs. The State DOTâs ob- ligation under its duty to maintain is to take such steps as are necessary to make the highway reasonably safe for travel, which may require temporary or even permanent closure of the road. 393 847 P.2d 244 (Colo. App. 1993). 394 Id. 395 Id. at 245. 396 Id. 397 Id. 398 Id. at 246. 399 Id.
NCHRP LRD 82 33 In negligent maintenance cases, State DOTs will typically attempt to distinguish between routine maintenance activities and capital maintenance decisions, arguing that the latter are entitled to discretionary immunity. However, while courts rec- ognize that funding is limited and that maintenance improve- ments requiring capital investment involve policy decisions that are entitled to discretionary immunity, the State DOT is not ab- solved of its duty to maintain the highway in a reasonably safe condition. For example, in Vokoun v. City of Lake Oswego,419 the Supreme Court of Oregon held that a city was not entitled to discretionary immunity when its failure to maintain a storm drainage system for a city street caused a landslide that dam- aged the plaintiffsâ property adjacent to the street. The storm drain transported stormwater from the street to a ravine near the border of the plaintiffsâ property, and the evidence at trial indicated that there had been âextensive erosionâ at the storm drain outlet, which âneeded some significant attentionâ at least a decade before the landslide, according to the testimony of a city engineer.420 Because the cityâs storm drain maintenance program was a âcomplaint drivenâ system, the city did not take any action until a few years later, when the plaintiffs notified the city about an 8-foot-deep hole at the outlet.421 In response to the plaintiffsâ complaint, âthe cityâs maintenance staff filled the hole with asphalt debris left over from a street project in another area of the city,â422 but did not conduct further inspections. The maintenance staff âs backfill project did not stop the erosion, and the landslide occurred about 7 years afterward.423 The plaintiffs sued in both negligence and inverse condemnation, arguing that the city should have either backfilled with compacted soil or extended the drainage pipe further to prevent erosion of the hillside.424 The jury returned verdicts in favor of the plaintiffs as to both counts, and the city appealed on the basis of discretion- ary immunity.425 Either of the repair projects requested by plaintiffs would have cost more than $25,000, constituting a capital improve- ment that must be included in the cityâs capital management plan, or otherwise budgeted.426 The Oregon Court of Appeals reversed the jury verdict, holding âthat the cityâs choice about which capital improvement projects exceeding $25,000 to under take, which did not include inspection, maintenance, or repair of the drainage outfall at issue in this case, was âprecisely the sort of discretionary policy decision that is subject toââ427 the discretionary function exception. However, the Supreme Court of Oregon reversed again, finding that the city did not actually exercise its discretion to consider improvements to the storm 419 335 Or. 19, 56 P.3d 396 (2002) 420 Id. at 22, 56 P.3d at 398. 421 Id. 422 Id. at 23, 56 P.3d at 398. 423 Id. 424 Id. at 24, 56 P.3d at 399. 425 Id. at 25, 56 P.3d at 399. 426 Id. at 24, 56 P.3d at 399. 427 Id. at 32, 56 P.3d at 403 (quoting Vokoun v. City of Lake Oswego, 169 Or. App. 31, 43, 7 P.3d 608, 615 (2000)). of its storm drain, where the obstructed storm drain precipi- tated a landslide that damaged the plaintiff âs property, despite the fact that the city had no actual knowledge of the storm drain obstruction caused by vandals. The storm drain was located on a steep embankment for an Oregon DOT highway, and the plaintiffs sued both the city and the State of Oregon.407 The trial court granted summary judgment in favor of both government defendants on the basis of discretionary immunity.408 On ap- peal, the Oregon Court of Appeals agreed with the trial court that the âplanning, design and construction of highways are dis- cretionary functions, the negligent performance of which de- fendants are not liable for.â409 However, discretionary immunity did not apply to the plaintiff âs allegations of negligence âwith failure to adequately maintain and inspect the storm drain.â410 The Oregon DOT denied any responsibility for the storm drain, and the city admitted that the storm drain was located on city property and the city had the duty to maintain it, so the court affirmed summary judgment in favor of the State of Oregon.411 However, the cityâs affidavits in support of summary judgment did not allege the type or frequency of inspection to which the sewer was subject, or indeed whether the sewer had ever been routinely in- spected for obstructions in its 58 years of existence before the over- flow. Further, from the complaint and the affidavits it is impossible to determine for what length of time the sewer had been obstructed prior to the overflow, a fact which is critical to the determination of the efficacy of a reasonable inspection to disclose the obstruction.412 Therefore, the court reversed summary judgment for the city, remanding for trial as to the cityâs negligence in inspecting the storm drain.413 In ABC Builders, Inc. v. Phillips,414 the Supreme Court of Wyoming affirmed a cityâs liability for failing to maintain a drainage ditch along âthe unopened proposed extension of Main Street,â415 where the ditch became overgrown and clogged, resulting in a landslide that damaged the plaintiff âs property. The court deemed the city to have notice of the dangerous condition because of a study performed by the Wyoming De- partment of Transportation regarding the proposed street ex- tension, which identified the drainage ditch as contributing to a groundwater problem at the site.416 Following that study, the city declined to construct the street extension âbecause of the risk of landslides.â417 Therefore, the court affirmed the judgment against the city, concluding that the risk of landslide was a fore- seeable risk of the cityâs failure to maintain its drainage ditch.418 407 Id. at 823, 601 P.2d at 884. 408 Id. at 827, 601 P.2d at 886. 409 Id. 410 Id. 411 Id. at 825, 601 P.2d at 885. 412 Id. at 831, 601 P.2d at 888. 413 Id. at 832, 601 P.2d at 889. 414 632 P.2d 925 (Wyo. 1981). 415 Id. at 940. 416 Id. at 943. 417 Id. 418 Id.