Effect of MUTCD on Tort Liability of Government Transportation Agencies (2014) / Chapter Skim
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Pages 37-50
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37 exit ramp)
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38 The term design is included many times in Standards in the 2009 MUTCD, as well in guidance, support, and option statements. In Section 1A.07(01)
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39 to a former design during reconstruction,460 a decision on whether to use barriers,461 or a decision on setting speed limits.462 In Sexton, an Illinois court agreed with the City that "the plaintiff's claim was based upon a theory of negligent design in the traffic control preemption system," for which the governmental defendant had absolute immunity.463 However, as held by the Supreme Court of South Carolina in Summer v. Carpenter,464 design immunity does not immunize decisions that were not made; that is, "the injury-producing feature must have been a part of the plan approved by the governmental entity" for design immunity to be applicable.465 In New York, the courts have held that public entities may not claim immunity when there was inadequate study of a plan or design, or when the approval of a plan or design was arbitrary or unreasonable.466 B
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40 or improvement by the legislative body or governing authority of a governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval, and where such plan or design is in conformity with engineering or design standards in effect at the time of preparation of the plan or design. 471 Even though the defendants failed to show that they had complied with the necessary elements for plan or design immunity,472 the court affirmed the dismissal of the case on a second basis -- the defendants Delta State University and the City had immunity under the discretionary function exemption of the Mississippi statute.473 As stated in Sadler v.
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41 ligence of a driver will not defeat a claim based on a negligent design theory. Instead, the evidence will only allow MHTC to apportion fault between itself and the driver."485 Nevertheless, the authors concede that [a]
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42 nance. A guidance statement in Paragraph 01 states that [p]
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43 as well as guidance, option, and support statements.506 In Johnson v. Alaska,507 one issue was whether the City was negligent in the signing of a railroad crossing where an accident occurred.
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44 "within the scope of a ‘public road' as defined in the applicable statute."520 Of course, a public entity is not "responsible for all injuries resulting from any risk posed by the roadway or its appurtenances, only those caused by an unreasonable risk of harm to others."521 Nevertheless, in many states there is a duty to provide traffic control devices at the location of a dangerous condition of which a transportation department had or should have had notice.522 A transportation department may have immunity as long as a sign, signal, marking, or other device was not necessary to warn of a dangerous condition that would not have been reasonably apparent to and would not have been anticipated by a person exercising due care.523 Likewise, in many states a statutory exemption in a tort claims act for discretionary acts does not relieve a public entity of liability for failing to give adequate warning of or to correct a condition known to be dangerous to the traveling public.524 Of course, the absence of a sign must have been the proximate cause of the accident in question.525 520 Shope v. City of Portsmouth, 2012 Ohio 1605, at P22 (2012)
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45 "[w] hen the City first installs a traffic signal is no less discretionary than whether to install it."531 Thus, the toll road authority "retained discretion regarding when to install warning flashers" that were at issue in the case.532 Immunity extends beyond the decision whether and when to install or provide traffic control devices.
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46 F The MUTCD and Liability for Stop Signs and Speed Limit Signs The MUTCD includes in Chapter 2 numerous provisions concerning stop signs, including Standards that are applicable.543 For example, in Section 2B.04 regarding the right-of-way at intersections, the Manual includes a Standard that states in part that stop signs shall not be used in conjunction with any traffic control signal operation, except in the following cases: A
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47 power to install a stop sign on a private road."555 The court held that "[i] f the municipality proceeds in direct contravention, or ignorance, of all legitimate interpretations of the law, its plan of action is inherently unreasonable."556 As for speed limit signs, likewise, it has been held that a decision to post a speed limit sign is a protected planning-level activity rather than an unprotected operational-level activity.557 In Kolitch v.
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48 design and application of traffic control devices, this Manual should not be considered a substitute for engineering judgment." 566 There are other cases holding that a public entity has immunity for its decisions regarding pavement markings.567 It has been held that special pavement markings may not be required at an intersection when the evidence does not establish that a hazardous or dangerous condition existed.568 On the other hand, there are precedents holding a transportation agency liable for improper, inadequate, or misleading pavement markings.569 In addition, in some jurisdictions the courts may regard some decisions on pavement marking as operational-level activities that are not protected by a discretionary function exemption.570 In Dispenza v. State of New York,571 the plaintiffs alleged that the transportation department was negligent in failing to post warnings that there was wet paint on the highway as a result of pavement striping operations.
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49 cessfully defended cases on the basis that decisions involving barriers or guardrails are discretionary in nature as planning-level decisions.578 Thus, it has been held that the failure to erect a guardrail did not constitute a dangerous condition of commonwealth realty;579 that the failure to erect a guardrail was not a "dangerous condition of the streets" for purposes of the "streets exception" to governmental immunity under a tort claims act;580 and that there was no liability for failing to provide a median barrier, particularly when there was no showing of changed conditions between the time of the reconstruction of the roadway and the accident.581 Similarly, in Helton v. Knox County, the court held that "the decision not to install guardrails despite the recommendations of state inspectors falls within the discretionary function exception."582 In Dahl v.
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50 as well as when they design roads and streets that the devices complement. Although transportation departments have concerns regarding some of the changes that were made to the 2009 MUTCD, it appears that in most states that the departments have immunity when exercising their discretion, particularly at the planning level, in the application of traffic control devices.
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