Potential Liability Associated with Unstable Slope Management Programs (2020)

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NCHRP LRD 82 47 that the plaintiffs failed to show that the New York State DOT had actual or constructive notice of a soil slope failure hazard at the time of the 2006 incident, and thus the New York State DOT was not liable.608 Presumably the outcome would have been less favorable to the New York State DOT if the plantiffs had been injured by a rockfall rather than a mudslide, given the New York State DOT’s failure to show that it had performed routine main- tenance to address rockfall concerns. Likewise, if the New York State DOT’s slope rating procedure accounted for soil failure modes (slides) in addition to rock failure modes (falls), the New York State DOT might have been charged with notice of the soil slope failure hazard, subjecting it to liability. Following that reasoning, it is reasonable to question whether State DOTs are exposing themselves to liability by, for example, enhancing their unstable slope management programs to in- clude soil slopes in addition to rock slopes. Similarly, State DOTs may be concerned that they are taking on liability by upgrad- ing their “worst-first” unstable slope management programs to geotechnical asset management programs that consider a wider range of mitigation measures instead of just full remediation. Following the logic of Gray, if the State DOT’s existing unstable slope management program does not perform soil slope hazard ratings, or does not consider interim mitigation measures short of full slope remediation, then perhaps the State DOT cannot be charged with notice and can escape liability on that basis. However, a contrary view is that if the technology is avail- able to consider alternate failure modes and alternate mitiga- tion measures, the State DOT could be negligent by failing to upgrade its unstable slope management program to consider a wider range of alternatives. Although State DOTs are not re- quired to implement geotechnical asset management programs, FHWA has recommended that they do so, and plaintiffs may argue that failure to follow FHWA’s recommendation indicates negligence by the State DOT. Merely because the geotechnical asset management program allows the State DOT to consider a wider range of slope mitigation options does not obligate the State DOT to mitigate every unstable slope in its inventory. As long as the State DOT actually uses the geotechnical asset man- agement program to make rational decisions with respect to selecting slope mitigation projects (e.g., based on a benefit-cost analysis and considering limited funding), supplemented with a routine maintenance program at the operational level, the State DOT should be able to demonstrate that it was not negligent and avoid liability for injuries due to slope failure. VI. CONCLUSION State DOTs are generally subject to statutory waivers of gov- ernmental immunity, subjecting the State DOT to potential tort liability when individuals suffer personal injury or property damage as a result of highway slope failures. Although most immunity waivers contain a discretionary function exception, retaining immunity for certain State DOT decisions such as the decision to locate a highway in an area prone to slope failure, the 608 Id. at 1170, 72 N.Y.S.3d at 212. made improvements over the programs used by other State DOTs, such as the Washington State DOT’s inclusion of soil slopes or the New York State DOT’s calculation of total rela- tive risk, discussed in Section II.A. The question naturally arises whether State DOTs can incur liability by failing to adopt im- provements or make upgrades to their unstable slope manage- ment programs. In 2018, in Gray v. State,599 the New York State DOT avoided liability for personal injury to travelers who were seriously in- jured by the “soil veneer failure” of a slope included in the New York State DOT’s rock slope rating inventory. The slope in question had previously experienced rockfalls in the 1980s and 1990s, which had resulted in traffic accidents and vehicle dam- age.600 The slope ranked 361st using the New York State DOT’s rock slope rating procedure, with a New York State DOT geolo- gist testifying at trial that “the slope’s relevant risk rating indi- cated that it was at less of a risk of slope failure than 360 other slopes in the state.”601 The court observed that, under New York law, the New York State DOT’s “duty to maintain its roadways in a reasonably safe condition” extends to “conditions adjacent to the highway” such as the slope, and the New York State DOT “may be found liable where it has actual or constructive notice of a hazardous [or dangerous] condition and fails to take reason- able measures to remedy the danger.”602 There was some ques- tion whether the New York State DOT adequately performed its routine maintenance obligations to guard against rockfall hazards, such as regular inspections or other rockfall mitigation measures.603 However, the slope failure that injured the plaintiffs was a soil veneer failure or “mudslide,” not a rockfall.604 This was not a failure mode that was considered in the New York State DOT rockfall rating procedure. The case went to trial in 2016, nearly 10 years after the ac- cident and more than 7 years after the plaintiffs filed a lawsuit against the New York State DOT. At trial, the New York State DOT geologist testified that “a rock fall inspection would not have provided any information relevant to whether the subject slope was at risk of a potential mudslide.”605 A New York State DOT geotechnical engineer testified that, although the New York State DOT “had never inspected the subject slope for soil stability,”606 potential rockfall remediation measures that the New York State DOT might have taken such as installing wire mesh on the slope “would not have reduced the risk of a mudslide.”607 Therefore, the New York Court of Claims ruled, and the Appel- late Division of the New York Supreme Court affirmed in 2018, 599 159 A.D.3d 1166, 72 N.Y.S.3d 208 (2018). 600 Id. at 1168, 72 N.Y.S.3d at 211. 601 Id. at 1170 n.4, 72 N.Y.S.3d at 212 n.4. 602 Id. at 1167, 72 N.Y.S.3d at 210. 603 Id. at 1170, 72 N.Y.S.3d at 212. 604 Id. at 1168, 72 N.Y.S.3d at 211 (explaining that the plaintiffs’ expert witness used the term “soil veneer failure” because “mudslide” was a “nontechnical term”). 605 Id. at 1170, 72 N.Y.S.3d at 212. 606 Id. 607 Id. at 1169–70, 72 N.Y.S.3d at 212.

48 NCHRP LRD 82 rock scaling and installation of protective devices, in order to show that it was not negligent. Courts will consider whether the State DOT’s mitigation activity or inactivity was reasonable and conformed with the State DOT’s duty to maintain the highway in a reasonably safe condition. As unstable slope management programs evolve into geo- technical asset management programs, they can help State DOTs consider a range of mitigation measures, and help make deci- sions regarding allocation of slope maintenance resources. Al- though maintenance decisions will typically not qualify for the discretionary function exception, evidence that the State DOT used its unstable slope management program to ade quately bal- ance the risks and advantages of potential slope hazard mitiga- tion measures will help the State DOT demonstrate that it was not negligent, and ultimately avoid liability on that basis. On the other hand, where the State DOT adopts a program to help determine slope hazard mitigation measures, but fails to act on the analysis by undertaking the suggested mitigation measures, that inaction can be used by plaintiffs as evidence of the State DOT’s negligence. Whether used to avoid liability on the basis of discretionary immunity or fulfillment of the duty to maintain highways, unstable slope management programs are only useful to the extent they are actually used by State DOTs to balance the risks and advantages of slope hazard mitigation. State DOT has a recognized duty to maintain the highway in a reasonably safe condition for travel. In tort claims arising from highway slope failure, liability will typically depend on whether the State DOT fulfilled its duty to maintain the highway or was negligent. Unstable slope management programs such as the Rockfall Hazard Rating System used by a number of State DOTs can be useful tools to reduce liability for slope failures. They pro- vide a framework for State DOTs to identify hazardous high- way slopes most in need of remediation, supporting decision- making regarding allocation of limited resources for capital improvements. These programs will become more useful over time as they evolve into geotechnical asset management pro- grams, allow ing State DOTs to consider a range of mitiga- tion measures, accounting for life-cycle maintenance costs, in order to op timally allocate slope maintenance resources across the state highway system to minimize the risk of personal in- jury or property damage due to slope failure. To the extent that unstable slope management programs help State DOTs avoid catastrophic slope failures, they certainly reduce the State DOT’s liability. However, all highway slope failures cannot be prevented. When there is personal injury or property damage due to high- way slope failure despite the use of an unstable slope manage- ment program, the State DOT’s use of the program can still play a role in reducing its liability. State DOTs can typically take advantage of the discretionary function exception for decisions grounded in social, economic, and political policy, which in- volve a conscious balancing of risks and advantages of various alternatives. Selecting slope remediation projects given lim- ited resources is the type of decision that is generally under- stood to be within the State DOT’s discretion, warranting im- munity. Unstable slope management programs, like Statewide Transportation Improvement Programs, provide a rational decision-making framework to assist State DOTs in selecting highway improvement projects (in this case, slope remediation projects), demonstrating that the State DOT actually exercised its discretion. However, State DOTs should not presume that the adoption of an unstable slope management program will absolve them from liability in tort for highway slope failures. If the State DOT does not actually use the unstable slope management program to make decisions regarding slope remediation (e.g., when the State DOT fails to remediate slopes with the highest hazard rat- ings), it may be unable to demonstrate that it exercised its dis- cretion. Furthermore, even though the State DOT may be enti- tled to discretionary immunity for its decision not to remediate the slope, the State DOT still must demonstrate that it fulfilled its duty to maintain the highway in a reasonably safe condition. The State DOT will need to demonstrate that it performed rou- tine maintenance at hazardous slopes, such as regular inspec- tion and debris removal, which is generally understood not to qualify for the discretionary function exception. Depending on the facts, the State DOT may need to demonstrate that it con- sidered and undertook additional mitigation measures, such as