Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies (2020)

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8 NCHRP LRD 83 a. State A discusses the legal standard of care that the DOT must use in its Traffic Engineering Manual. The manual reads: [The state] MUTCD has been adopted by the State … through a Commissioner’s Order and applies to all public roads and private roads open to public travel in [the state]. As regulated, this require- ment has the full force and effect of the law… a failure by govern- ment personnel in [state] to conform to the requirements of the state MUTCD may be sufficient to establish negligence (and therefore li- ability) should a crash result from failure to conform. On the other hand, as the state MUTCD only sets forth minimum requirements, compliance may not in itself be sufficient to establish reasonable care. If more than a “minimum” is required by a specific situation, it should be done. b.  In a State B construction document, the DOT stated that it would “ensure” that a contractor’s work environment was safe, and that it would make sure the contractor’s employees followed safety rules, laws, and procedures. The family of an employee of the contractor involved in the construction project sued the state after the employee died in an accident in a construction work zone. The law- suit that followed relied upon the documentation. A state employee had observed the decedent minutes before the accident occurred and failed to warn her that she was in a dangerous situation or remove her from the situation. Analysis: The State A passage may create unintended liability for the agency by requiring it to exceed the usual “reasonable- ness” standard of care and should be deleted from the manual. As illustrated in the State B example, in some situations, an agency may be held to a stricter legal standard than the law in the state usually permits or a new duty of care may be estab- lished through the documentation and statements produced by the agency. III. RECOMMENDATIONS FOR LIABILITY NEUTRAL DOCUMENTS AND COMMUNICATION STRATEGIES A. Choosing Each Word Carefully The intent of this digest is to encourage the use of liability neutral language in safety studies, research papers, and DOT policies and manuals. Phrases such as “hazardous” and “danger- ous” tend to create the potential for liability due to the implica- tions of the words that are used. The words “dangerous” or “un- safe” when used to describe a condition of the road imply that if the specified feature of the transportation facility is improperly maintained or in need of imminent repair, the road, rather than driver error, is at least partially at fault for an accident. Those words can imply that an agency is careless or negligent if it has not remedied the condition before an accident that may relate to the condition occurs. While this guidance should provide flexibility to the practi- tioner, there are times that “shall” or “should” or “required” are appropriate and can be used to emphasize the importance of the provided instruction. applied to all state highways, found that failure by the city to follow the manual was negligence per se. The court in Bingham v. Idaho Department of Transporta- tion25 emphasized the importance of the Idaho Department of Transportation’s (IDOT) compliance with its manual (and state law) during its discussion of the methodology the agency used to determine a speed limit.26 At issue was whether the speed limit was reasonable on a route that plaintiff alleged to be dan- gerous and the cause of injury. IDOT had obtained a summary judgment in the district court. Plaintiffs did not accuse IDOT of negligence per se in the pleadings, but merely claimed that the DOT failed to follow its own policy. The Supreme Court of Idaho stated that “the [district] court erroneously determined that it was discretionary for the Transportation Department to determine the speed limit and place traffic signs and other sig- nals along” the highway. 27 “The Transportation Department’s placement of a sign along a highway or the determination of a safe speed limit is not a policy setting activity; it is an implemen- tation of regulations and policies that already exist. There are activities for which the department may be held liable if it fails to exercise ordinary care in carrying out these activities.”28 The court further commented that the district court should have evaluated whether the specific provisions of IDOT’s manual had been followed before deciding whether the claim against the agency could be dismissed, rather than assuming that the manual had been followed simply because signs had been erect- ed along the route that was the subject of the lawsuit. Analysis: Negligence per se is the legal theory that if a violation of a law or regulation that is meant to protect the public, such as a speed limit or building code has occurred the person who committed the violation is at fault as a matter of law. If the agen- cy violates internal policies which have been adopted as regula- tions, a court may find it to be negligent per se and responsible for an injury as a matter of law. In Idaho, as in other states, where the MUTCD has been specifically adopted by statute, a plaintiff is entitled to make the argument that a violation of the manual is negligence per se. Other DOTs, such as the Missouri Depart- ment of Transportation (MoDOT), have adopted a manual or guideline that is in substantial compliance with the MUTCD. If the manual is “guidance” rather than a directive required by state law, an agency such as MoDOT can use its discretion and engineering judgment in implementing the manual. 2. Potential Expansion of Established Standard of Care An agency may unknowingly or unwillingly accept addi- tional responsibility and liability through its actions, correspon- dence, or publications. 25 117 Idaho 147, 786 P.2d 538 (Id. 1990). 26 The court discussed Idaho Code § 49-201(3) which required the department to adopt a manual in reasonable compliance with the MUTCD. 27 Id. at 150, 786 P.2d at 541. 28 Id. at 150-51, 786 P.2d at 542.

NCHRP LRD 83 9 Example A: American Traffic Safety Services Association (ATSSA) ATSSA provides a work zone podcast series 29 titled “Work Zone Hazard Assessment: Identifying and Maintaining the Work Zone Clear Zone.” The stated purpose of the podcast is to “focus on raising practitioners’ awareness of how to remove, shield, or otherwise mitigate hazards within the clear zone.” Excerpts from that podcast are printed below: Due to the dynamic nature of the work zone environment, recover- able designs are achieved first by not allowing unprotected hazards created by construction activities (such as drop-offs) within the work zone clear zone area and second by shielding unavoidable hazards like utility poles with positive protection devices. Traversable designs are achieved by maintaining the minimum allowable side slope of 1 to 3 in a hazard-free location that usually requires a significant roadside width for high-speed roadways. So, what are the options for treating hazards in the work zone clear zone? Generally, you have three choices: relocation, mitigation, or shielding. Relocation refers to hazards that can be moved. This would include stockpiled materials, parked equipment and vehicles, post-mounted signs, and other fixtures… For longer duration activities and for times when these hazards must remain in the clear zone because they are needed for work zone activities or because the location allows no other place to put them, it will be important to consider protection like portable concrete or steel barriers. When relocation is not possible, mitigation, or doing things to make a hazard less dangerous, can be a good compromise between main- taining the work zone clear zone and shielding hazards. However, there are limitations that must be considered, including constructa- bility, time duration, and roadway width and length. For example, constructing a 4 to 1 wedge of compacted surfacing material to smooth drop-offs may be possible with shoulder delineation and proper signing of the drop-off condition. The longer the duration of work, the more practical this approach becomes. Additional mitiga- tion examples include: Planned work operations that make use of existing barriers, wide shoulders, and an accessible roadside to eliminate the potential haz- ards of stockpiled material or equipment. Work zone strategies that shift traffic away from existing or new haz- ards. For example, temporary lanes shifted onto an existing shoulder or temporary widening may create enough distance to provide for the clear zone. Lastly, shielding, or applying protective devices to make a hazard less dangerous, is very common in work zones since the work zone itself often creates hazards. In addition, existing hazards in work zones must be shielded when relocation and mitigation are not possible… Drop-offs, equipment, and fixed obstacles such as lamp posts or large trees are just a few hazards that can have a dangerous impact on ve- hicles that accidentally intrude into the work area. Analysis: ATTSA is an organization that provides the transpor- tation industry with roadway safety training programs, certifi- cation opportunities, and instructional publications. Many state 29 Work Zone Hazard Assessment: Identifying and Maintaining the Work Zone Clear Zone, reviewed August 2, 2019, https://www. workzonesafety.org/training-resources/fhwa_wz_grant/atssa_wz_ clear_zone_pcast/. The following list of words is comprehensive, but does not include all the words that can create unintended liability or re- sponsibility for an agency: Better Insufficient Clearly Is needed Concern Mandatory Danger/Dangerous Obstacle Deficient Poor Edge/Shoulder Drop off Problem Ensure Require Essential Risk/Risky Excessive Shall Hazard Should Hot Spot Trap Imperative Unsafe Inadequate Worse Liability Neutral Words and Phrases Even some “liability neutral” words may create liability for the agency, given the context in which they are used. Therefore, neutral words must be considered in context to determine the risk of liability with their use. A list of illustrative words that provide flexibility is provided below: Application of engineering judgment Guideline As soon as practicable May Criteria/factors that may be considered Normal Consider Potentially contributing factors Can Roadside “feature” or “condition” or “object” or “device” rather than “hazard” or “risk” Candidates for shielding Strategy Could Toolbox Difference in elevation rather than edge or shoulder drop off When/Where feasible Factors that contribute to the probability

10 NCHRP LRD 83 since the work zone itself often creates hazards. In addition, existing hazards objects or conditions in work zones must be shielded when relocation and mitigation are not possible. … Drop-offs Differences between road and shoulder elevation, equipment, and fixed obstacles objects such as lamp posts or large trees are just a few hazards items that can have a dangerous impact on vehicles that accidentally in- trude into the work area. Example B: Guardrail Advertisement. The DR-46 Motorcycle Barrier sold by Lindsay Corporation is intended to protect motorcyclists from injury if they strike the guardrail. It attaches to standard roadside guardrail and can protect errant motorcyclists from the guardrail post during a fall or collision. The following text is found on Lindsay’s website:30 The use of the DR-46 MBA under guardrail reduces the risk of the motorcyclist impacting dangerous guardrail posts. Analysis: The word “dangerous” should never be used in the description of a product, especially one that is being marketed to highway agencies for use on their guardrail systems. Lindsay Corporation also sells guardrail, so in effect it is admitting that the use of one of its products can make another of its products dangerous. The sentence could be revised in the following man- ner: The use of the DR-46 MBA under guardrail reduces the risk likeli- hood of the motorcyclist impacting dangerous guardrail posts. Example C: Guardrail Installation and Length of Need. A study from a transportation research facility regarding guardrails as well as a joint project between State C and others are discussed below. Changes to the language used in the study and projects are suggested below. Some agencies no longer use the term “guardrail” and use the term “guiderail” instead, as the word “guiderail” is considered to be more descriptive of the pur- pose of the hardware. In 2014, a study of the appropriate length of need for guard- rails was conducted by a research facility. The purpose of the study was to determine whether the recommendations of the Roadside Design Guide (RDG) relating to appropriate guardrail length were in fact, appropriate, or whether RDG calculations produced guardrails that were too long. Throughout the report, reference is made to “hazards” on or off the roadway that re- quire shielding or protection such as culverts, poles and steep slopes. For example, in the summary, the following sentence can be found: [b]oth impacts with the shielded hazards involved secondary hazards only; the primary hazard which warranted shielding was never im- pacted. Analysis: The word “hazard” is used hundreds of times in the report. This aspect of the document is not helpful for the agency, as it reinforces the idea that guardrails are or can be dangerous. To make this document more liability neutral, each time, the word “hazard” is used it could be replaced with the word “ob- ject” or “feature” or “item.” If “object” doesn’t fit the context, an- 30 Barriersystemsinc.com. (Last visited July 23, 2019). and local DOTs use ATTSA materials and training courses as the basis for their employee training and in addition, require the contractors who work on their roads to have certifications that can be obtained from ATTSA. Their publications and training programs are considered authoritative in the industry. The words “dangerous” and “hazard” suggest that if a feature or condition of the road is not properly maintained, the road may be at fault for an accident. Those words can further imply that an agency is careless or negligent if it has not remedied the condition before an accident that is potentially related to the condition occurs. When an organization such as ATTSA admits on behalf of the industry that work zones create a dangerous condition of the roadway, it creates a liability risk for transpor- tation agencies. Those words could be replaced with “liability neutral” words such as “conditions” or “objects” as identified below. In the example below, the intent of the guidance does not change, but the language in the new guidance is liability neutral. The podcast could be reworked as shown below: Due to the dynamic nature of the work zone environment, recover- able designs are achieved first by not allowing unprotected hazards conditions created by construction activities (such as drop-offs) (such as a differential between the elevation of the roadway and the shoulder of more than two inches) within the work zone clear zone area and second by shielding unavoidable hazards conditions like utility poles with positive protection devices. Traversable designs are achieved by maintaining the minimum allowable side slope of 1 to 3 in a hazard-free location that usually requires a significant roadside width for high-speed roadways. So, what are the options for treating hazards objects or devices in the work zone clear zone? Generally, you have three choices: relocation, mitigation, or shielding. Relocation refers to hazards features that can be moved. This would include stockpiled materials, parked equipment and vehicles, post- mounted signs, and other fixtures. … For longer duration activities and for times when these hazards features must remain in the clear zone because they are needed for work zone activities or because the location allows no other place to put them, it will be important to consider protection like portable concrete or steel barriers. When relocation is not possible, mitigation, or doing things to make a hazard shield a feature or condition less dangerous, can be a good compromise between maintaining the work zone clear zone and shielding hazards objects in the work zone. However, there are limitations that must be considered, including constructability, time duration, and roadway width and length. For example, constructing a 4 to 1 wedge of compacted surfacing material to smooth drop-offs differences in elevation between the road and shoulder may be pos- sible with shoulder delineation and proper signing of the drop-off condition. The longer the duration of work, the more practical this approach becomes. Additional mitigation examples include: Planned work operations that make use of existing barriers, wide shoulders, and an accessible roadside to eliminate the access of the motorist to potential hazards of stockpiled material or equipment. Work zone strategies that may include shifting traffic. away from ex- isting or new hazards. For example, temporary lanes shifted onto an existing shoulder or temporary widening may create enough distance to provide for the clear zone. Lastly, shielding, or applying protective devices to make a hazard less in the area of work dangerous, is very common in work zones

NCHRP LRD 83 11 5. Vertical objects within the guardrail system’s design deflection. 6. Nearby guardrail that could be connected with another guardrail run. 7. Termination of guardrail within 200 feet of a cut slope. 8. Regrading or shaping of the slope. Example D: Clear Zones. The clear zone is generally considered to be a roadside area that is free of fixed objects that can provide an area for an out- of-control driver to regain control of the vehicle. The concept is used to determine an appropriate “clear” distance from the edge of a traveled lane of the roadway. It can also be used for roadway design purposes and determining an appropriate area for work- ers in a work zone. City A states as follows in their policy: ROADWAY CLEAR ZONES On rural local streets the clear zone shall be 6 feet, and on rural col- lectors the clear zone shall be 11 feet. Where hazards are within the clear zone, guardrail or barrier wall shall be provided at least 6 feet off the traveled way. For urban sections the clear zone is 4 feet from face of curb. On urban local streets the clear zone may be reduced to 2.5 feet under unusual conditions. Analysis: The use of the word “hazard” provides the reader with the suggestion that a condition or feature is unsafe, and that con- dition may become the target of litigation, as discussed above. The use of “shall” and “should” terms is an important judg- ment decision to be made by the agency as some conditions merit the strict adherence to a guideline. Those words could be replaced with “may” if the agency chooses to allow flexibility but believes it must require a clear zone. The terms “should” and “shall” are mandatory and require the agency to perform or implement the identified actions or guidance. If the enumerated actions are not done, the agency is out of compliance with its policy or guidance and will be presumed negligent. The decision to use a “shall” condition in the guidance should be made only with an application of engineering judgment. “Under unusual conditions” is a vague phrase and leaves the reader to determine what types of conditions are unusual. A technique is shown below where the text is changed to suggest that the practitioner use engineering judgment to de- termine the optimal clear zone width. The language could be modified in this way: ROADWAY CLEAR ZONES GUIDANCE On rural local streets and rural collector routes the clear zone shall provides a benefit to the driver. be 6 feet, and on rural collectors the clear zone shall may be 11 feet. Rural local streets have a clear zone of 6 feet, subject to the geometrics of the road and engineering judgment. Rural collector routes have a clear zone of 11 feet, subject to the geo- metrics of the road and engineering judgment. other word such as “condition” could be used. Descriptive words such as “pole” and “culvert” and “slope” could also be used. The example sentence from the study could be rewritten as follows: [b]oth impacts with the shielded hazards objects involved secondary hazards objects only; the primary hazard condition which warranted shielding was never impacted. State DOT C’s Roadside Safety Field Guide is a guide that combines sections of a design manual and a construction man- ual to assist field employees in installing roadside hardware. It poses questions presumably to assist in evaluating conditions and determining what actions should be taken. The technique is as follows: When reviewing proposed and existing barrier installations in the field, we need to ask ourselves the following questions: 1. Is the guardrail system more hazardous than the condition that is being shielded? 2. Is an existing guardrail installation still warranted? 3. If the guardrail is installed as originally planned, is there a pos- sibility of the motorist still reaching the hazard? 4. Can the guardrail be extended to shield a secondary obstruction? 5. Are there any vertical obstructions within the guardrail system’s design deflection? 6. Is the guardrail ending within 200 feet of another guardrail run that could be connected? 7. Is the guardrail terminating within 200 feet of a cut slope? 8. Does the slope need regrading? Analysis: The question and answer methodology can elicit help- ful information for the practitioner to consider. If the agency uses this methodology, question one could be rewritten as fol- lows: Would the consequence of striking the guardrail be less severe than striking an object next to the roadway? In question three, the word “hazard” could be replaced with “object that is being shielded” or simply “the culvert” or “signpost.” However, even with the wordsmithing, the guidance is still not entirely clear, because there is no direction about the action that should be taken if all the questions are answered with a “yes.” Factual information and descriptions that allow the prac- titioner to use engineering judgment to make a decision are useful to the technical writer and allow the use of discretion in the performance of the work. The passage could be rewritten as statements or conditions to be considered, as follows: When reviewing proposed and existing barrier installations in the field, we need to ask ourselves the following questions the following items may be considered, and changes made to the plans if warranted by the application of engineering judgment: 1. The potential severity of striking the guardrail vs. the potential severity of striking the object next to the roadway. 2. The likelihood of a motorist reaching the object if the guardrail is installed as originally planned. 3. Extension of guardrail to shield a secondary object. 4. Whether the guardrail continues to be warranted.

12 NCHRP LRD 83 C. Negligence Per Se The legal doctrine of negligence per se should be considered in the evaluation of manuals, research studies, and policies. An act of an agency employee may be considered negligent because that act violates a rule, regulation, or law. If a policy or manual has the effect of a rule within an agency or has been adopted as a regulation, violation of the policy language may equate to negli- gence per se, which subjects the agency to liability as a matter of law if policy language or the regulation is not followed. Example A: State E Traffic Engineering Manual. The traffic engineering manual was adopted by the state through a Commissioner’s Order. According to the text of the manual, it has the full force and effect of law. It contains a six- page section on tort claims, including a discussion of the basic characteristics of a tort, legal duties, immunities, and negligence. This discussion, for the most part is informative on the law and does not impact the liability of the agency. The last sentences, however, reads as follows: A failure by government personnel [the state] to conform to the re- quirements of the MUTCD may be sufficient to establish negligence (and therefore liability) should a crash result from failure to conform. On the other hand, as the MUTCD only sets forth minimum require- ments, compliance may not in itself be sufficient to establish reason- able care. If more than a “minimum” is required by a specific situa- tion, it should be done. Compare the State E passage to the federal MUTCD,31 which states the following: The Manual on Uniform Traffic Control Devices (MUTCD), by set- ting minimum standards and providing guidance, ensures unifor- mity of traffic control devices across the nation. Further compare the following passage that is found in the State F design manual: The geometrics of a roadway consist of its horizontal alignment, ver- tical alignment, and cross section elements. The [DOT] has accepted the American Association of State Highway and Transportation Of- ficials (AASHTO) A Policy on Geometric Design of Highways and Streets (Green Book) as its standard for geometric design. For proj- ects on the interstate system, AASHTO’s A Policy on Design Stan- dards - Interstate System supplements the Green Book. Designers are directed to the above-referenced documents for geo- metric design criteria. This chapter does not attempt to restate criteria contained in the Green Book; rather, it provides criteria specific to the DOT where it is different or more limiting than what AASHTO al- lows. In instances where these criteria cannot be met, Chapter 210 of the Design Manual describes [the DOT’s] documentation procedures for design exceptions and design variances. Analysis: The language used in the State E manual requires the agency not only to comply with the language of its internal MUTCD but to exceed it on occasion. The law merely requires reasonable behavior or “ordinary care” as noted in section II D. The manual language puts an additional and unnecessary burden on the employees who are obligated to comply with it, whether or not they are aware of it. The language used in the 31 MUTCD Overview, https://mutcd.fhwa.dot.gov/kno-overview. htm, (last visited June 15, 2019). Where hazards objects are within the clear zone, guardrail or bar- rier wall shall be provided should be considered at least 6 feet off the traveled way. For urban sections, the clear zone is 4 feet from face of curb. On ur- ban local streets the clear zone may be reduced to 2.5 feet under un- usual conditions as determined with the application of engineering judgment. Documentation of any departure from this guidance by the roadway designer should be kept with the project file. B. Scheduled Policy Reviews Instructional manuals should be subjected to scheduled comprehensive reviews. The agency should look for informa- tion that is confusing or inaccurate and ensure that the process- es that were in place at the time the guidance was initially writ- ten are still in place. Technical documents should be reviewed by engineering or other technical staff to verify compliance with generally accepted engineering practices. In addition, staff who implement the policy should be involved with its review to ensure that the guidance, as contemplated, can be or has been implemented in the field. Legal counsel should also be actively involved in revisions of policy, especially when the agency is considering changing descriptions of techniques, guidance or concepts that are frequently the subject of litigation. Example A: Irrelevant Content. This text is taken from State D’s construction manual: The same inspector should generally not be utilized on successive jobs with the same contractor. Certain personal relations and prece- dence can be established which may not be in the best public interest. However, it is sometimes desirable to assign the same inspector on successive jobs with the same contractor because of the inspector’s availability, knowledge, experience, and capacity for handling suc- cessively similar types of work. Such assignment, if made, should be based on the individual inspector’s record of unqualified integrity and ability to provide firm, fair, equitable and proficient engineering in- spection. Analysis: A plaintiff ’s attorney could frame his or her entire theory of a case around this passage. Issues related to “personal relations” should be addressed by the Human Resources depart- ment rather than found in a policy manual. The passage reads as if the state assumes that its inspectors are going to or already have developed close relationships with their contractors and that the professional judgment of their employees is compro- mised due to those relationships. The passage could be modified as follows: The same inspector should generally not be utilized on successive jobs with the same contractor. Certain personal relations and prece- dence can be established which may not be in the best public interest. Construction inspectors are not typically assigned to perform inspec- tion functions for a contractor on successive jobs. However, it may benefit the state to assign the same inspector on successive jobs with the same contractor because of the inspector’s availability, knowledge, experience, and capacity for handling successively similar types of work. Such assignment, if made, should be based on the individual inspector’s record of unqualified integrity and ability to provide firm, fair, equitable and proficient engineering inspection.

NCHRP LRD 83 13 STATE H FENCING POLICIES Purpose: To establish a policy for the Department of Transportation for the proper construction and maintenance of right-of-way fence. Fully Controlled Access Highways: Continuously fence all fully controlled access highways (Freeways) unless it can be definitely established that a fence is not necessary, such as in areas of precipitous slopes, other natural barriers or sound walls placed adjacent to the right-of-way line. The Department owns and maintains all fencing installed on this type of roadway. Use the lowest cost of the types shown on Department Fence and Gates (FG) Series Standard Drawings or in the Plan Set in other areas of development within the State that fulfill the following purposes: a. Prevent animals from entering upon the highway right-of-way. b. Keep children and pedestrians off the highway. c. Prevent vehicles from entering or leaving the right-of-way at un- authorized locations. Compute the lowest cost considering the cost of installation, future maintenance, and the likelihood of future changes in the use of the adjacent property. All fencing provided on uncontrolled access highways, except spe- cial fencing, becomes the property of the adjacent landowner and is maintained by that owner. Place fences that are to be maintained by someone other than the Department directly on the right-of-way line. Place this fencing one foot inside the right-of-way line if for some reason the Department agrees to the maintenance of fencing in uncontrolled access areas. Place the fencing in accordance with the policy of the local authority on local governmental agency projects. The Department, when fencing, regardless of specific ownership, is damaged by an errant vehicle that has left the pavement of a State Highway and livestock is present, is authorized to give notice to the property owner; notify HP; complete a temporary repair while the owner is responding; and repair the fence if the situation seems too dangerous. The property owner or damaging party will be billed for the repairs. Repairs made to non-Department fence will meet the minimum Department standards. STATE I MAINTENANCE MANUAL. Inspection and Repair of Fences and Gates 1. Activity Description. This activity includes maintaining or replac- ing fence posts, top rails, and gates of department-owned fences. Interstate fencing is the responsibility of DOT. All other fences are the landowner’s responsibility unless a right-of-way agreement states otherwise. Cleaning dirt and materials from state-owned fences is included in this activity. 2. Purpose. The purpose of this activity is to protect the safety of the public by keeping livestock off the highway and ensuring that controlled access is maintained. 3. Timing of Maintenance. Fences should be inspected twice a year and needed repairs and maintenance scheduled. Fence and gate damage should be scheduled for repair as soon as practical. Analysis: The aspects of these policies which may put the agencies at risk are three-fold: determination of which highways must have fencing; timing of the maintenance of the fence; and phrases which may be vague or difficult to understand. The pol- State F design manual and the MUTCD are simply explanations that do not carry any obligations for staff or the agency other than to comply with the generally accepted industry practices. State E creates a legal standard for the employees of the agency to follow that may be unattainable. It should be deleted and lan- guage that provides options, based on engineering judgment, should be used if the passage is to remain in the guidance at all. D. Vague Phrases Should Not Be Used Phrases such as “consideration should be given” and “wher- ever possible” may appear to provide flexibility to an agency. Even though they seem to simply emphasize the importance of the instruction, they also in essence require action to be taken. Factual information and descriptions that allow the practitioner to use engineering judgment to make a decision are more useful to the writer and allow the use of discretion in the performance of the work. Example A: Fencing Many states require their miles of interstate to have state- maintained fencing while highways such as freeways or rural routes may but are not required to have fencing. Fencing is used primarily to restrict access to the roads by unauthorized vehi- cles, pedestrians or animals. The state exposes itself to potential liability if it publishes guidance or standards that require it to install and maintain fencing in a particular manner and then fails to comply with its own directive. Excerpts of the internal fencing policies of three different states are compared and ana- lyzed below, illustrating the possibilities for liability, followed by a proposed model policy. STATE G HIGHWAY FENCING POLICY PURPOSE Fencing is one means of delineating and preserving the acquired control of access for a highway. It should be noted that right of way markers or controlled access signs may also be used with or without fence to identify the access control line. POLICY Access control fencing fence shall be placed along the access control line as may be shown on highway plans for Interstate highways and other full-access control highways where it is determined to be nec- essary to preserve access control. Fencing may be placed on the access control line for other partial ac- cess control highways where it is deemed appropriate to delineate access control. Any changes in the fencing, after the fencing review, shall be docu- mented and maintained in a permanent record. Access Control fence is owned and maintained by DOT only for the purpose of delineating access control. Although adjacent property owners are permitted to pasture livestock against this fence, DOT as- sumes no responsibility for constructing or maintaining a livestock- tight fence.

14 NCHRP LRD 83 and pedestrians from entering or leaving the highway at unauthor- ized locations. Right of way markers or controlled access signs may also be used with or without fencing to identify the property lines. Any portion of a highway may be fenced, although fencing is not required in areas of precipitous slopes, natural barriers or in other areas fencing is not required to preserve access control. Fencing is usually located at or near the right of way line. In areas where frontage or outer roads are present, the fencing is typically placed in the area between the highway and outer road. Fencing for access control is usually owned by the agency so that the agency can control the type and location of the fence. Inspection of the fence line by DOT staff should occur on a regular basis. Maintenance and repairs should be scheduled for repair as soon as practicable. Example B: Bicycle Warning Signs. State J’s traffic manual contains instructions about the proper placement of bicycle warning signs and reads as follows: To have maximum effect, these signs are to be used with discretion only at locations that have a problem and only where one or more of the following criteria are met: safety problems when the road cannot be improved for bicycle features; where there is high bicycle volume; where there is a conflict or obvious courtesy problem between car and bicycle sharing the road. Analysis: The agency has admitted it has a “problem” at certain locations. In the legal world, this statement is akin to admit- ting that a location with a “bicycle warning” sign is not safe. The word “problem” itself is vague because the reader is left to her or his own interpretation of what kind of “problem” can be expected in this situation. Similarly, the meaning of the phrase “obvious courtesy problem” is open to speculation. Instead of using the word “problem,” the first part of the passage could be modified to specifically identify the situations, perhaps with a list, in which the bicycle sign could be used. The phrase “obvious courtesy problem” should be removed and replaced with exam- ples of the behavior that can cause the issues that are identified in the section. The passage could be modified as follows: The bicycle warning sign is used to indicate to the driver that there may be bicycles in the road. Bicycles may be crossing or entering the roadway. Bicycle warning signs may be considered, in conjunction with the application of engineering judgment, at locations that meet one or more of the following criteria: • The average daily count of bicycles exceeds X; or • There is a documented history of collisions involving bicycles and vehicles which exceeds X; or • Shared use of roadway by bicyclists and vehicles may occur. E. Protections Under 23 U.S.C. § 409 Studies which contain information that an agency has gath- ered to evaluate highway safety appurtenances may be helpful to the agency in identifying areas that require attention such as improperly placed guardrail posts or guard cable that has not been properly maintained. However, studies that identify sub-standard conditions (or conditions that may benefit from an improvement) of the roadway are pure gold to a lawyer rep- resenting a plaintiff in a negligence case against a government icy of state G provides the DOT with flexibility regarding initial placement, based upon a decision of whether fencing is needed for access control. The policy does not require fencing on any particular type of highway, such as interstate or freeway. The language makes it clear that the fence is used for access control purposes only “where it is determined to be necessary,” but does not explain how to determine where it is necessary. State H, on the other hand, commits to fencing all freeways and commits to the maintenance of all its fencing. State I sets a specific schedule for fence inspection (twice a year), but provides flexibility with- in the policy to allow repairs to be done “as soon as practical.” State H instructs its staff to repair a fence “if the situation seems too dangerous.” When the word “dangerous” or “hazard- ous” is used, maintenance staff is left to determine how danger- ous is “too dangerous.” And who has to decide when it’s “too dangerous?” How and when is that decision made? State H’s policy contains language that is not clear: “[t]he Department, when fencing, regardless of specific ownership, is damaged by an errant vehicle that has left the pavement of a state Highway and livestock is present, is authorized to give notice to the property owner; notify HP; complete a temporary repair while the owner is responding …” This sentence is criti- cally important to the process and should be changed to identify the parameters of the agency’s responsibility. Fencing can be difficult for staff to maintain, especially when a DOT is responsible for thousands of rural miles that are not frequently traveled by its staff. State H accepts maintenance re- sponsibility only for interstate and requires the adjacent proper- ty owner to maintain any fencing that is placed on non-freeway right-of-way. That state must make sure that the adjacent prop- erty owners are informed of their obligations if the passage is to be enforceable. The policy also states that the property owner is not responsible for maintenance if “for some reason, the De- partment agrees to the maintenance of fencing.” This phrase in- dicates a departure from the established practices and creates potential confusion for maintenance staff. Unless the depart- ment has established a plan to document all locations where it has agreed to maintain non-interstate fencing, those locations may be overlooked and not maintained as contemplated. Two of the policies contain documentation requirements. One requires documentation of the decision to make fencing changes and another contemplates the possibility of a right-of- way agreement that may shift the responsibility of maintenance of the fence from an adjacent landowner to the state. Documen- tation requirements in the policies create a need to keep the documentation in a place that can be located and reviewed on a frequent basis. Because DOTs are subject to frequent staffing changes, it is important for the agencies to find a way to make sure that new staff is aware of the maintenance obligations that stem from policy language. These policies could be rewritten as follows: MODEL POLICY: Fencing on the right-of-way line accomplishes several purposes: pre- vention of encroachment, access control, and preservation of the gov- ernment’s property lines. Access control is used to prevent bicyclists

NCHRP LRD 83 15 mendations, such as additional guidance and training, can be made, but specific examples of non-compliance with industry guidance should never be used in a report that is intended to be released outside the agency. Example B: Guard Cable Evaluation Report The guard cable evaluation report prepared by a research department of State K addresses the issue of soil, footings, and repair response times. In the “recommendations” section, the following information can be found: Footing Concrete Pours: A better method for placing the concrete in the augured holes should be developed … it is likely that the sides of the hole are collapsing … the footing will not have the expected resistance to rotation on impact. Anchor Footings: Based on the problems encountered during the re- pair of the end section, a detail should be developed … to maintain clear access to shear bolt holes … instead of an individual foundation for each anchor point, a single block be cast. This would have to be accepted by the manufacturer, to assure that the crashworthiness of the system is not negatively affected. Repair Response Time: Given the current intervals between an ac- cident and the repair of the damaged section it is suggested that a departmental policy for a time frame to repair the guardrail be put in place . . . While damage that does not involve the end sections does not prevent the system from serving its intended purpose, the effectiveness can be reduced, especially in locations more prone to impacts. Analysis: This document contains important information that is useful to the agency, although words such as “problem” and “better” should be avoided since they are vague and suggest the opinion of the writer. A study that contains data such as appro- priate soil conditions and corrosion systems can be beneficial to the agency in order to improve the function and operation of the system. The document itself, the information contained within it, and the recommendations are all protected by 23 U.S.C. Section 409 and should not be released to the public. This analysis is subject to the review of each state records disclosure law as data, but not the report itself. F. Surplus Language Surplus language can be words that are redundant or du- plicative or words that seek to explain a concept that does not require explanation. Surplus language can impact the clarity of an idea or provide a plaintiff ’s lawyer with a theory of negli- gence that would not have been apparent from a clearly written s entence. Example A: Shoulder Width. Highway shoulders have a substantial impact on roadway operations and the safety of the road. Shoulder width is one of the Green Book’s ten “controlling criteria” for interstate and other high-speed roads such as freeways. Because shoulders im- pact the ability of the motorist, pedestrians and bikers to use the road, the selection of the appropriate shoulder width is an im- portant planning component during the design phase of a road as well as during the consideration of a rehabilitation project. agency. 23 U.S.C. § 409 protects reports, surveys, schedules, lists, or data that has been compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railroad-highway crossings. Even though a study or report itself is protected from admission into evidence in litigation, the data found in the report could be independently verified by plain- tiff’s expert. Therefore, safety studies in the custody of a DOT should not be published or allowed into the public domain. Example A: Cable Barrier Policies and Research Studies. Cable median barrier is widely used around the county to prevent errant vehicles from crossing medians and striking vehicles in opposing lanes of traffic. It is credited with saving thousands of lives since DOTs started using it in the mid-2000s. Several publications which relate to the maintenance aspects of cable barrier were reviewed for this report. The publications in- cluded in-service evaluations and DOT maintenance policies. A study commissioned by a state DOT and performed by its state research university are analyzed below, as is a research report prepared by state K’s research and technology section. The research study was performed by staff at the university in response to a request by DOT officials to compare the in- service functions of cable barriers purchased from three dif- ferent manufacturers. The stated purpose of the report was to “increase the safety and effectiveness of [the DOTs] barrier sys- tem.” Multiple deficiencies of the installed barrier systems were identified in the report. For instance, the following summary is found in the text: The primary CMB (cable median barrier) installation deficiencies by brand include: Briften: Insufficient post spacing for in-line posts Insufficient post spacing for end posts Rope heights exceed tolerance Insufficient weakening cuts for the end treatment posts Gibralter: Insufficient post spacing for in-line posts Insufficient post spacing for end posts Analysis: Wordsmithing cannot fix this report. These com- ments from the research report create a roadmap for liability if a median crossover accident occurs. Non-compliance with in- stallation guidance provided by the manufacturer is fatal to the defense of a median crossover failure claim. The report should not have simply concluded that there were “insufficiencies.” In- stead, it should have described each of the “insufficiencies” with objective measurements that would have informed the DOT of the specific conditions that were identified in the field. If the agency required an evaluation of the barrier cable that could be released to the public, the entire perspective of the report should be changed. A report that is published on an agency website should contain only facts and recommendations that are based on the objective measurements discussed in the report. Recom-

16 NCHRP LRD 83 Partial shoulders are sometimes used when full shoulders are undu- ly costly, as on long span bridges or in mountainous terrain. Regard- less of the width, a shoulder should be continuous where feasible. Left shoulders are preferred on all divided highways. The desirable median shoulder width on a 4 lane and 6 to 8 lane highway is 5 feet and 10 feet respectively. The minimum left shoulder width on land service highways is 3 feet and on a freeway is 4 feet. Shoulders on structures should have the same width as the usable shoulders on the approach roadways, both right and left. This design is essential on freeways and is desirable on all arterials where shoul- ders are provided. Long span, high cost structures usually warrant detailed special studies to determine feasible dimensions. Wherever practicable, full shoulders should be included, but as has been indicated, for some cases, it may be judged proper to use only partial width shoulders. Analysis: This passage has multiple examples of surplus and vague language that could create liability for the agency. The agency defines the term “practical,” which has a commonly ac- cepted meaning of “reasonable” or “sensible.” The definition it- self does not create liability for the agency, but the agency does not need to define commonly used words. The passage also contains several “shall” and “should” conditions. The agency must carefully consider its use of those words. It is feasible to construct its new roads with the shoulder widths outlined in the passage above, but if those words are used in instructions to staff, all new shoulders must have the enumerated widths or the agency will have fallen below the standard of care outlined in its guidance. To address the vague and surplus words, the passage could be rewritten as follows: Width of Shoulders. Desirably, A vehicle stopped on the right shoul- der should clear the pavement edge by at least 1 foot, preferably by and 2 feet if permitted by roadway geometry. If 2 feet are not available due to the limitations of the road, engineering judgment should be used to determine an appropriate width. On land service highways, in difficult hilly or rugged terrain, or in areas where right of way is restricted due to roadside development or environmental factors, a minimum 8-foot-wide shoulder may be provided. On 3R projects, the existing shoulder width may be reduced to 8 feet to provide wider lanes. New or reconstructed shoulders on heavily traveled and high- speed land service highways, especially those carrying large numbers of trucks (250 DHV), where turning volumes are high or dualization is anticipated, should have usable shoulders of at least 10 feet and preferably 12 feet wide if permitted by roadway geometry. Shoulders should be provided adjacent to all new acceleration and deceleration lanes at interchanges, where practical, in major new construction or reconstruction projects along major land service highways having an AADT of 10,500 per lane (DHV of 1,500 per lane) or greater, for the project design year. “Practical” “Engineering judgment” is defined as given consideration to social, economic, and environmental impacts in concert with safe and overall efficient traffic operations and the application of engi- neering education and experience. Shoulder widths on freeways and Interstate highways shall be 10 feet minimum. However, where truck traffic exceeds 250 DDHV, a 12-foot shoulder should be provided if permitted by roadway geometry. A 10-foot shoulder shall be provided adjacent to all new or recon- structed auxiliary lanes. Where no right shoulder exists, the existing auxiliary lane width may be maintained on Interstate and freeway resurfacing, restoration and rehabilitation (3R) projects. However, The policies of State M, State N, City B and State O are consid- ered below. State M’s policy reads as follows: Shoulder Width • For higher speed, high volume roads, the DOT has adopted ten feet as the normal shoulder width. • For low-volume roads, a minimum shoulder width of two feet is required, though six feet to eight feet is preferable. • Where bicycles and/or pedestrians are to be accommodated on shoulders, the minimum usable width (i.e., clear of rumble strips and gutter pan width) is four feet. Analysis: This policy is short and provides appropriate and easy to understand guidance to the designer. For this analysis, it is assumed that low and high volume are defined elsewhere in the policy. The passage would benefit, however, from this change: For low-volume roads, a minimum shoulder width of two feet is required, though six feet to eight feet is preferable typically used as allowed by roadway geometrics. If six feet are not available due to the limitations of the road, engineering judgment should be used to determine an appropriate width. State N’s policy is found below: Width of Shoulders. Desirably, a vehicle stopped on the right shoul- der should clear the pavement edge by at least 1 foot, preferably by 2 feet. On land service highways, in difficult terrain, or in areas where right of way is restricted due to roadside development or environ- mental factors, a minimum 8-foot-wide shoulder may be provided. On 3R projects, the existing shoulder width may be reduced to 8 feet to provide wider lanes. New or reconstructed shoulders on heavily traveled and high-speed land service highways, especially those car- rying large numbers of trucks (250 DHV), where turning volumes are high or dualization is anticipated, should have usable shoulders at least 10 feet and preferably 12 feet wide. Shoulders should be pro- vided adjacent to all new acceleration and deceleration lanes at inter- changes, where practical, in major new construction or reconstruc- tion projects along major land service highways having an AADT of 10,500 per lane (DHV of 1,500 per lane) or greater, for the project design year. “Practical” is defined as given consideration to social, economic, and environmental impacts in concert with safe and overall efficient traf- fic operations. Shoulder widths on freeways and Interstate highways shall be 10 feet minimum. However, where truck traffic exceeds 250 DDHV, a 12-foot shoulder should be provided. A 10-foot shoulder shall be provided adjacent to all new or recon- structed auxiliary lanes. Where no right shoulder exists, the existing auxiliary lane width may be maintained on Interstate and freeway resurfacing, restoration and rehabilitation (3R) projects. However, whenever practical, a 10-foot desirable or a 6-foot minimum shoul- der should be provided on Interstate and freeway 3R projects. Shoulder widths for specific types of highways are enumerated as part of the typical sections illustrated at the end of this section. Although it is desirable that a shoulder be wide enough for a vehicle to be driven completely off the traveled way, narrower shoulders are better than none at all.

NCHRP LRD 83 17 port 783, Evaluation of the 13 Controlling Criteria for Geometric De- sign. The research results indicate that shoulder width should remain as a controlling criterion for rural two-lane highways, rural multilane highways, and rural and urban freeways. Furthermore, the research indicates that shoulder width has the largest effect on crash frequency of any of the controlling criteria for rural highways, and that shoul- der width has the largest effect on traffic speed of any of the control- ling criteria for rural two-lane highways. The Department’s policy on roadway shoulder width is published in Chapter 6.5 of the DOT Design Policy Manual. The normal shoulder width for collectors and arterials with design speeds greater than or equal to 50 mph is 10-ft wide. The normal shoulder widths for multilane freeways and interstates with design speeds greater than or equal to 50 mph is 14-ft overall outside shoul- ders with 12-ft paved, and 12-ft overall inside shoulders with 10-ft paved. These dimensions have been adopted as standard by the De- partment and are consistent with the preferable dimensions recom- mended by AASHTO for higher speed, higher volume, and heavy truck type facilities. Recommended shoulder widths for all other roadway functional classifications and design speeds are listed in the AASHTO Green Book. To ensure decisions on shoulder widths are carefully considered, this letter is to clarify that any decision to use a shoulder width that does not meet the values adopted by the Depart- ment will require the prior approval of a Design Variance from the Chief Engineer. A decision to use a shoulder width that does not meet the “minimum values” recommended by AASHTO will require the prior approval of a Design Exception. Analysis: State O does not have to explain the purpose of its policy to its staff. Language such as “ shoulder width has the largest effect on crash frequency of any of the controlling criteria for rural highways, and … shoulder width has the largest effect on traffic speed of any of the controlling criteria for rural two- lane highways” can be problematic in a lawsuit if the roadway in question does not have shoulders on a rural road that is the subject of the litigation. The language is excessive and provides information that is unnecessary for the practitioner to review. Instead of providing an explanation about the purpose of the policy, the agency could simply provide guidance as to how shoulders should be constructed and at which locations. Redundant or surplus language should be removed during the revision process. An example is found in State O’s policy as follows: “These dimensions have been adopted as standard by the Department and are consistent with the preferable dimen- sions recommended by AASHTO for higher speed, higher vol- ume, and heavy truck type facilities.” Since the dimensions are adopted in the policy, clearly, they are preferable. Example B: Vision Zero. Vision Zero is a concept that has been accepted by hundreds of cities in the United States. The agencies work towards the goal, based on data-driven strategies, of achieving zero serious injuries and deaths on their roadway systems. City C makes this statement on its website: The primary responsibility of the City government is to ensure the safety and well-being of all of the cities’ residents. One death on our streets is one too many. whenever practical, a 6 to 10-foot desirable or a 6-foot minimum shoulder should be provided on Interstate and freeway 3R projects. Shoulder widths for specific types of highways are enumerated as part of the typical sections illustrated at the end of this section. Although it is desirable that a shoulder be wide enough for a vehicle to be driven completely off the traveled way, narrower shoulders are better than none at all. Partial shoulders are sometimes used when full shoulders are unduly costly determined to not be cost effective after a cost-benefit analysis has been conducted as on long span bridges or in mountainous ter- rain. Regardless of the width, a shoulder should be continuous where feasible. Left shoulders are preferred to provide a benefit on all divided high- ways. The desirable Where feasible, the median shoulder width on a 4 lane and 6 to 8 lane highway is 5 feet and 10 feet respectively. The minimum left shoulder width on land service highways is 3 feet and on a freeway is 4 feet. Shoulders on structures should have the same width as the usable shoulders on the approach roadways, both right and left. This design is essential provides a benefit on freeways and is desirable on all ar- terials where shoulders are provided. Long span, high cost structures usually may warrant detailed special studies to determine feasible dimensions. Wherever practicable, full shoulders should be included, but as has been indicated, for some cases, it may be judged proper to use only partial width shoulders. City B states as follows in its land development procedure manual: ROADWAY SHOULDERS Outside shoulders shall be provided on all rural roads. Rural local streets should desirably have a 6-foot shoulder, and rural collectors should desirably have a 10-foot shoulder. Where right-of-way is lim- ited, the shoulder widths may be reduced to a minimum of 2 feet for locals and 6 feet for collectors. Where significant bicycle and/or pe- destrian traffic is expected, consideration should be given to paving 4 feet or more of the shoulder. Analysis: This policy could be modified as follows to provide the agency with more flexibility: ROADWAY SHOULDERS Outside shoulders shall be provided on all rural roads. Rural local streets should desirably have a 6-foot shoulder and rural collectors should desirably have a 10-foot shoulder. Outside shoulders provide a benefit to the driver on rural roads. Where feasible, and subject to engineering judgment, 6-foot shoulder widths on rural local streets are used. Where feasible, and subject to engineering judgment, 10- foot shoulders are used on rural collector routes. Where right of way is limited, shoulder widths may be reduced to a minimum of 2 feet for locals and 6 feet for collectors in conjunction with the application of engineering judgment. Where significant bicycle and/or pedestrian traffic is expected, consideration should be given to paving 4 feet or more of the shoulder where feasible. State O’s policy letter on the “Standard Design Criteria for Shoulder Width” is reproduced below: This letter is to clarify the Department’s policy on roadway shoulder width for new construction, widening, and reconstruction projects. In 2014 the Transportation Research Board published NCHRP Re-

18 NCHRP LRD 83 State P prioritizes repair of components that provide for the safety of the traveling public into categories such as priority one, two, and three. It also provides sub-categories within its priority one system for guardrail, concrete median barriers, and crash attenuators. Those levels of service are: Desirable. Maintain all safety appurtenances to original design stan- dards; all hardware functional; no noticeable appearance defects. Acceptable. Maintain all safety appurtenances to original design stan- dards; all hardware functional; few noticeable appearance defects. Tolerable. Maintain all safety appurtenances to original design stan- dards; all hardware functional; readily noticeable appearance defects. Analysis: The words “desirable,” “acceptable,” “tolerable” and “defects” are all expressions of the author’s opinion. They do not convey directions, examples, or a clear message. Instead of opin- ion words, a list of examples or photographs could be used to convey the message intended by the author. Another option is to exclusively use a priority system, such as priority A, priority B, and priority C and give examples of those situations. Regardless of the priority system used, care must be taken by the agency to make sure that the conditions or features of the road that are identified within the priority system are in compliance with the written expectations of the agency. County A’s website provides instructions to the public on how to report conditions that may require maintenance. Per- tinent parts of the website are set out below, along with recom- mendations for changes to it. Maintenance Requests If a County road is damaged, a sign is down/missing and/or there is an apparent need for maintenance or repair (i.e., pothole, drainage ditch, etc.) contact the County Highways Division … or fill out our Maintenance Request Form. Drainage Ditches Approximately 65 miles of ditch-work is performed by highway maintenance crews annually … ditches are provided for the con- trolled removal of surface water from the right-of-way. … It is rec- ommended that roadside ditches be cleaned on a minimum eight (8) year cycle and following major storm events. …. Our goal is to limit the number of flooding incidents by keeping drainage-ways clear with regular maintenance and cleaning. Shoulder Maintenance A shoulder is the portion of the roadway adjacent/contiguous with the paved travel-way and may be composed of gravel, crushed rock, bituminous, surface treatment, or grass on native soil. An integral part of the DPW&T maintenance program is the inspection … of roadside shoulders. This activity is typically performed twice a year; between April 1st to July 1st and September 1st to November 1st. Well de- signed and properly maintained shoulders are also extremely ad- vantageous and necessary on rural roads because they: essentially serve as structural lateral support for the roadway surfacing; provide space for the occasional motorist who needs to stop for mechanical reasons; provide lateral clearance for signs and guardrails; allow space for oversized farm vehicles, pedestrians, bicyclists and mail vehicles use; help to discharge drainage away from pavement to minimize pavement breakup; ease performance of maintenance operations Analysis: This language suggests that the government itself is “ensuring” the safety of all its residents. This is not an appropri- ate legal standard of care. The sentence could be eliminated entirely or replaced with a sentence that simply sets out the facts, such as In the last ten years, there have been 74 deaths and 542 serious in- juries on our roads. Our goal is to reduce the number of deaths and serious injuries every year. Language on the City D Vision Zero website reads as follows: The status quo is unacceptable. The City must no longer regard traffic crashes as mere ‘accidents’ but rather as preventable incidents that can be systematically addressed. No level of fatality on city streets is inevitable or acceptable … the city will use every tool at its disposal to improve the safety of our streets. Analysis: This language could be used by a plaintiff in a per- sonal injury suit based on a dangerous condition of a road or sidewalk in a number of ways. If the incident that spurred the lawsuit occurred prior to the implementation of the Vision Zero policy, plaintiff can logically make the argument that the city could have taken more and different steps in the past to prevent injuries on its roads and sidewalks and that it was negligent for failing to take those steps at an earlier time. Or, if the incident that spurred the lawsuit occurred after the implementation of the Vision Zero policy, plaintiff could take the position that the injury was preventable, the city had notice of the issues, and the problems they should have been addressed before it occurred. On its website, the city E of invites citizens to use its online tool to “identify and report transportation hazards and danger- ous traffic behaviors that could lead to fatalities or life changing injuries on our streets.” Analysis: Once it has received these reports, the city presumably has notice of conditions that the public has alleged are danger- ous and must act on that information. Use of these phrases can lead to unintended liability if the city requests comments and information such as this and does not act in a timely manner to address the reported conditions. G. Match Field Conditions to Language in Guidance A conflict between written policy and the application of the policy in the field will usually be resolved in favor of the plaintiff rather than the DOT. Language in the policy or guidance must match the practices in the field and all instructions should be written so that they are easy to understand and interpret. Lan- guage should be reviewed periodically for liability issues and to make sure that the written guidance is aligned with current practices. Example A: Timing of Repairs. Some roadway conditions, like a missing or damaged stop sign, require immediate attention, while other items such as a damaged chevron in a series of twelve can be part of a scheduled repair. The repair prioritization policies of State P and County A are analyzed below.

NCHRP LRD 83 19 Medium & Routine Priorities Normal priority items can be phoned in … e-mailed to our Highway Maintenance Division Manager or simply fill out our Maintenance Request Form. Pothole and guardrail repairs Pavement surface maintenance Sidewalk and shoulder damage Street sweeping and vacuuming Removal of non-dangerous items from roadways or rights-of-way Analysis: The county is educating its population about roadway conditions, but in the process of education, it provides informa- tion that could expose it to litigation risk. Much of the informa- tion is interesting and informative regarding the inner workings of the agency, but it is surplus to the information that is relevant to the needs of the traveling public and sets up expectations for maintenance of the roadway which may not be attainable. The explanations of road operations and characteristics provide a multitude of opportunities for plaintiff. A discussion about the consequences which may occur when a vehicle leaves the roadway should not be found in a maintenance policy or on an agency’s website. The statements made in the passage dimin- ish the role of driver error in the sequence of events. The passage explains that the agency plans to clean its ditches on an eight-year cycle and identifies a regular schedule for main- tenance. If these actions do not occur in the field, the agency has opened itself up to potential liability for its failure to comply with its policy. Additionally, the agency has admitted that it has a list of “problem” sidewalks that it has not fixed. The passage also contains a lengthy discussion of shoulder maintenance that contains surplus language such as “properly maintained shoulders are extremely advantageous and neces- sary on rural roads … they serve as structural lateral support for roadway surfacing …” The purpose of the website is to provide information to the public about how and when to contact the agency to report road conditions, not provide an explanation of the reasons that roadways have been constructed. This passage should be rewritten instead of revised. The pas- sage could be reduced to simply provide contact information for the departments that perform repairs during and after business hours and give examples of the conditions of the road that merit reporting as follows: Maintenance Requests Please contact the agency via e-mail or phone during regular busi- ness hours if you observe any of the following conditions: Trees or shrubs blocking the view of oncoming traffic; Debris on shoulders or near the road; A pothole or sinkhole; A clogged drainage ditch; Damaged pavement markings/striping/stop bars; Shoulder conditions where there is a difference in elevation between the traveled way and the shoulder in excess of two inches; A settled or broken sidewalk. such as snow removal; and can improve sight distance. For this rea- son, shoulders on low volume roads are often constructed of gravel. Accidents are likely to occur where drivers are called on to make decisions under circumstances where their vehicles are unable to respond properly. When a vehicle leaves the roadway, the driver no longer has the ability to fully control the vehicle. Maintaining use- able shoulders along rural roads helps to provide a clear recovery and maneuver room (“space”) to escape potential accidents or reduce their severity. The two (2) basic maintenance problems we face are: shoulder “drop-offs” which should be scheduled for maintenance and immediate repair if the “drop” from the edge of pavement is greater than 2 inches; and shoulder “build-up” which is handled by cleaning the shoulders, especially after the winter season, and berm removal operations prior to paving. Drainage Structures Approximately 3,000 linear feet of deteriorated metal cross pipes are replaced by our Highway maintenance crews each year. Inlets require continual maintenance attention due to clogging with leaves, under- brush, sediment, debris and even ice. If not unplugged immediately, the resulting water ponding can create a traffic hazard on the road- way, soft ground conditions beneath the pavement or wet conditions within yards on private property. Water infiltration into the sub-grade can create a myriad of structural problems/failures within the pave- ment surface. Potholes and Sinkholes It is the goal of the Highway Maintenance Division to maintain County streets in good repair, including repair of potholes and sinkholes. Once County Roads Maintenance staff are notified of a pothole, a crew is dispatched to repair the defect. … During the win- ter months, even though Public Works may fill a pothole, the water underneath can freeze up that night and push the “cold patch” right back out again. This is just a condition of the winter storm season and cold temperatures. Sidewalks The County Highways Division keeps a list of sidewalk problem lo- cations that have been reported by residents. If the sidewalk is settled, but not broken, the sidewalk will be temporarily patched with asphalt if there is a tripping hazard. Maintenance Priorities Please call 911 for dangerous roadway or pedestrian emergencies such as: Dangerous obstructions in roadways (debris, trees or large animal carcasses); downed utility lines such as electric and phone; Accidents; Roadway(s) flooding; Snow and ice conditions; Hazmat spills (i.e. gasoline, oil, etc.); Traffic or pedestrian signal malfunction; Traffic control (stop and speed limit, etc.) signs missing or damaged. High Priorities During normal working hours, please call … or fill out our Mainte- nance Request Form. After normal working hours or on weekends, please telephone ... Communications dispatchers will then call out repair crews for high priority items. Examples are: Traffic visibility problems resulting from trees or shrubs blocking the view of oncoming traffic; Missing stop signs, speed limit signs and advisory signage; Sinkholes; damaged pave- ment markings/striping/stop bars; Animal carcass obstructing travel lanes; Flooding in roadside ditches or in/across roadways; Debris re- moval after severe weather events and snow removal.

20 NCHRP LRD 83 with catchwords that begin with “c” that promote clarity in writing. The suggestions therein can be a helpful reference to the technical writer. Once the purpose of the policy or standard is determined, the audience must be considered. Technical guidance is typi- cally intended for technical writers such as engineers. However, the following suggestions to the technical author are equally ap- plicable to technical and non-technical writing: a. Possess a comprehensive understanding of the subject before drafting a policy about it. b. Allow sufficient time to draft and rewrite the document. c. Know the audience. If the reader is likely a college graduate and engineer, technical words can be used if they are defined or commonly used. However, it is im- portant to provide guidance in language that is easy to understand for the average person. d. When possible, sentences should be short, containing one idea per sentence. This is for ease of comprehension. e. Edit so the passage does not contain unnecessary or du- plicative words. f. Use short, simple words when possible. g. Use the active voice. It is more interesting to read. h. Use words that do not suggest a bias or preference. In- stead, use a neutral, objective, impartial tone. i. Provide information and education on a topic, not con- clusions or opinions, using words that can be verified through evidence and facts. j. Provide the reader with solutions, options and alterna- tives, or instructions that can be carried out, rather than using the words “must”, “should” or “shall.” k. During and at the end of the process, read the passage out loud to make sure the passage makes sense. l. Ask a colleague to review the document for accuracy of content and clarity. m. Request legal counsel to review document for legal suf- ficiency. Many agencies require counsel to review and approve changes. 3. Starting the Revision Process When an agency decides to review and revise its technical guidance, it is taking on a potentially lengthy process. Ideally, the department or division that is most familiar with the guid- ance will develop a schedule to review it all. This review should occur at least every other year. The review should necessarily include the department or division responsible for the guidance as well as other departments or divisions that implement or con- tribute to the work that is described in the policy. For instance, if a policy on adequacy of highway fencing is under review, the departments responsible for the initial installation of the fenc- ing as well as those responsible for the maintenance of the fenc- ing should be involved in the review of that policy. Legal counsel should also be involved in a review, especially if the guidance has been scrutinized in a lawsuit or is likely to be the basis of a lawsuit. Please call 911 for roadway conditions such as: Objects in roadways such as debris, trees or large animal carcasses; Downed electric or phone lines; A collision; Roadway(s) flooding; snow and ice conditions; Liquid such as gasoline, oil, on or near the roadway; Traffic or pedestrian signal malfunction; Missing or damaged red traffic control signs such as stop and speed limit signs; Animal carcass obstructing travel lanes; Flooding in roadside ditches or in/across roadways. H. Development of Liability Neutral Guidance Technical writing can be easy to understand and provide clear and accurate guidance to the reader who needs to absorb and use the information. The following information is intended to be a starting point for drafting and revising manuals and poli- cies, safety studies, and research papers. 1. Determine Purpose of Document As a preliminary consideration, it is important to understand the purpose of the document that is being drafted or revised. Many of AASHTO’s published works such as the Green Book and the RDG are used as guidance by DOT engineering and technical staff. These publications` are generally accepted by the transportation industry as reliable, accurate, and authoritative. Before a decision is made to supplement those periodicals with information applicable only to the DOT itself, the agency must first decide that the supplementation is necessary and that the changes will assist staff in interpreting the intent of the guid- ance. Care should be taken to keep from conflicting with or ex- ceeding the requirements of generally accepted guidance based on engineering judgment. If the decision is made to exceed the generally accepted guidance, documentation of those explana- tions should be kept. For instance, the MUTCD32 does not recommend a set dis- tance from the lane of travel of a road for a stop sign at a wide throat intersection. It merely provides that the sign should be identifiable and placed a minimum distance of between six and twelve feet from the adjacent roadway. If a state DOT institutes a prescribed minimum or maximum distance from the road for a stop sign which is different from the MUTCD guidance, it should have a well-documented good reason, based on engi- neering judgment since it removes flexibility from the agency. 2. Guidance for Drafting Technical Documents In response to the survey, Iowa provided the “5 C’s” method- ology which can be found in Appendix B.33 It is a methodology 32 MUTCD, Figure 2A-2, Chapter 2, https://mutcd.fhwa.dot.gov/ kno-overview.htm, (last visited June 15, 2019). 33 The 5 C’s are a methodology used by Iowa DOT in its Style Guides for Writing Specifications. The concepts are the use of concise, clear, complete, correct, and consistent terms. It is another excellent resource and is included as Appendix 2.