National Academies Press: OpenBook
« Previous: V. RECOMMENDATIONS FOR LIABILITY NEUTRAL DOCUMENTS AND COMMUNICATION STRATEGIES
Page 22
Suggested Citation:"VI. CONCLUSION." National Academies of Sciences, Engineering, and Medicine. 2020. Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies. Washington, DC: The National Academies Press. doi: 10.17226/25894.
×
Page 22
Page 23
Suggested Citation:"VI. CONCLUSION." National Academies of Sciences, Engineering, and Medicine. 2020. Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies. Washington, DC: The National Academies Press. doi: 10.17226/25894.
×
Page 23

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

22 NCHRP LRD 83 While they emphasize the importance of the instruction, they also in essence require action to be taken. The use of the terms “strategies” or “guidelines” or “toolbox” do not have the same legal effect as the words “standards” and “policy” and should be considered as substitutes for those words. E. Protections Under 23 U.S.C. § 409 Studies that contain information that an agency has gathered to evaluate highway safety appurtenances may be helpful to the agency in identifying areas that require attention such as im- properly placed guardrail posts or guard cable which has not been properly maintained. 23 U.S.C. § 409 provides for the pro- tection of reports, surveys, schedules, lists, or data 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. This law provides that the data gathered for these purposes shall not be subject to discovery or admitted into evidence in a court pro- ceeding or considered for other purposes in any action for dam- ages arising from an occurrence at a location that is mentioned or addressed in those reports, surveys, schedules, lists, or data. Safety studies in the custody of a DOT should not be published or allowed into the public domain. F. Surplus Language Surplus language can be words that are redundant or dupli- cative or words that seek to explain a concept that does not re- quire explanation. Surplus language can impact the clarity of an idea or provide a plaintiff ’s lawyer with a theory of negligence that would not have been apparent from a clearly written sen- tence. G. Match Field Conditions with 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. Policy or guidance language must match the practices in the field and all instructions should be written so that it is easy to understand and interpret for all employees. Language should be reviewed periodically for liability issues and to make sure that the written guidance is aligned with cur- rent practices. H. Internal Communications of the Agency Emails are frequently and commonly used at the time policy changes are under consideration. Texts, emails and other com- munications should include only facts that are presented in an understandable, factual and neutral manner. They may be a good source of documentation of the thought process of staff as they review and revise policies. VI. CONCLUSION A state department of transportation is charged with keep- ing its highways in a reasonably safe condition when the roads Hazard Should Hot Spot Trap Imperative Unsafe Inadequate Worse 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 Can Normal Candidates for shielding Potentially contributing factors Consider Roadside “feature” or “condition” or “object” or “device” rather than “hazard” or “risk” Criteria/factors that may be considered Strategy Could Toolbox Difference in elevation rather than edge or shoulder drop off When/Where feasible Factors that contribute to the probability B. Scheduled Policy Reviews Instructional manuals should be subjected to a scheduled comprehensive technical review to search for guidance and phrases that are confusing or inaccurate. Agency personnel who implement the policy must be involved with its review. Counsel should be actively involved in revisions of policy. C. Negligence Per Se An act of an agency employee may be considered negligent because that act violates a rule 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 is not followed. D. Vague Phrases Should Not Be Used Phrases such as “consideration should be given” and “wher- ever possible” seem to provide flexibility to agency staff with responsibilities of reading and interpreting policy. The phrase “wherever possible” and similar phrases should not be used.

NCHRP LRD 83 23 are used as intended by the agency. In a lawsuit, a plaintiff must prove that a roadway agency was negligent in order to show that the agency is responsible for his or her injuries. One of the easi- est and most effective ways to prove the negligence of an agen- cy is to show that it did not comply with its own standards or guidelines or those of a commonly used industry publication. During the course of litigation, the language of any policies and the practices of the agency that are relevant to the litigation will be closely examined. If counsel for the plaintiff finds that a poli- cy or guideline was not followed, it will be easy for a jury to find some fault on the agency. If the guidance is hard to understand or unclear in any way, uses language that does not appropriately describe the actions that should have been taken or the method- ology that was intended to be used, the agency has opened itself up to unintended liability.

Next: APPENDIX A SURVEY LETTER AND QUESTIONS »
Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies Get This Book
×
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

In the legal system, transportation engineering documents drafted by the transportation industry include manuals, studies, research documents, memoranda, and email. These documents are frequently used by litigants and courts as evidence bearing on the standard of care or duties for transportation agencies sued for alleged negligence in operation of transportation facilities.

The TRB National Cooperative Highway Research Program's NCHRP Legal Research Digest 83: Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies contains a writing guide for technical and non-technical authors and those employees who interact with the public and the media. This digest will assist authors in avoiding concepts and language that have legal implications by promoting clear, direct, objective, and fact-based expression.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!