In tort liability, agencies are faced with defending their actions such as design decisions in the face of lawsuits stemming from traffic crashes. Six principle issues must be resolved in court.

Tort Liability, Design Exceptions, and Risk Management

Most state DOTs and local agencies must deal with the issue of tort liability. Agencies are faced with defending their actions such as design decisions in the face of lawsuits stemming from traffic crashes on their system. Given that a certain number of crashes is inevitable, and laws permit such suits, the number of lawsuits filed and increasing sizes of awards to plaintiffs are a source of great concern among many personnel of transportation agencies. An agency's management structure and project development processes, including use of design criteria, design decision making, and documentation practices, are all important aspects of good risk management.

Overview of Tort Issues

Technical staff of agencies and consultants responsible for roadway design should understand basic concepts of tort law as they apply to highway planning and design. For the most part, states have similar common law of torts. If there is a legal duty that is breached (negligence), and it caused injury or damages, then the injured party can be compensated by the negligent party through the courts.

The courts do not expect public officials, including staff of the transportation agency, to be perfect, nor to make the best possible decisions. It is simply asked that the decisions made and actions taken be reasonable under the circumstances. In many cases in which a transportation agency is found negligent and the plaintiff receives a large award, it is because either someone in that agency was found to have simply failed to exercise ordinary, reasonable care, or the decision making process was so poorly documented that it could not be shown to be reasonable in court.

When negligence is claimed, there are usually six principle issues that must be resolved in court.

Did damages occur? It must first be proven that the plaintiff suffered damages.

Did a potentially dangerous defect exist? The courts do not expect transportation agencies to guarantee that their roads are absolutely safe under all possible conditions. However, drivers should be able to expect that a highway is reasonably safe for usual and ordinary traffic and road users who are exercising reasonable and prudent care, both in the daytime and at night. "Defects" may be conditions or objects that are extraordinary in nature that drivers cannot see or anticipate or have not been warned about.

Was the defect a "proximate" cause of the damages? The fact that a defective condition existed does not necessarily mean that the governmental agency was negligent. The defect must be found to be a proximate cause of the plaintiff's damages.
Did the agency have knowledge of the defect? Negligence requires knowledge of a problem. Once a governmental agency has received notice of a defect, a duty may arise to repair the defect or at least to warn drivers until it can be repaired. Simply ignoring a safety problem, or failing to document and study it, does not shield an agency from tort claims.

Was the transportation agency acting in a "discretionary" or "ministerial" role? Discretion means the power and duty to make a choice among alternatives. Agencies exercise discretion through the independent judgment of how to allocate available resources, what impacts to accept, and which priorities to address. Planning, design, policy, and legislative actions are typically considered discretionary. In the absence of obvious defects, some courts may provide protection for discretionary decisions. In other words, a plaintiff may not be able to challenge a decision that was discretionary in nature. The concept is that judges and juries should not substitute their judgment for those of professionals in technical matters.

Ministerial functions are considered distinctly different in some jurisdictions from discretionary functions. These generally involve clearly defined tasks performed with minimal leeway for personal judgment. Roadway maintenance functions (filling potholes, replacing signs, plowing snow) are typically considered to be ministerial in nature.

Did the plaintiff contribute to the crash through negligent behavior? Contributory negligence is considered conduct which falls below the standard of care which individuals must exercise for their own safety and which contributed to the injuries. In most states, the relative negligence of all parties is compared, and any award to the plaintiff may be reduced proportional to the plaintiff's relative contribution to the crash. The concept of "joint and several liability," used in many, but not all states, means that all defendants have a joint responsibility to the plaintiff. If one defendant cannot afford to pay their share of the award to the plaintiff, then the other defendants must increase their payments to fully compensate the plaintiff.

As was noted above, roadway planning and design are by their nature discretionary processes, involving professionals assessing trade-offs among operational efficiency, costs, safety, environmental impacts, and community concerns. Such trade-offs are inherent to CSD. In general many courts will support the role of the designer in making such discretionary decisions. Discretionary decisions can enjoy protection from claims of negligence as long as the designers can show that, in fact, they exercised this discretion by carefully evaluating alternatives and weighing the important trade-offs. (Note that in some jurisdictions courts may apply tests of reasonableness to decide whether a design action is discretionary and thus immune from challenge. Adherence to accepted practices (e.g., consistency with the AASHTO policy) may serve as proof of reasonableness.) However, immunity has been held not to apply to decisions made without prior study or conscious deliberation; in other words, when there is a failure to exercise "due care" in the planning and design process. (Note that the ability to prove that "due care" was exercised will more often than not depend on the availability of required documentation.)

In order to be successful in a claim of negligence in the design of a roadway, a plaintiff must show that there was a "defect" in the design and that the defect was a "proximate cause" of the injuries suffered. Further, to overcome "design immunity" the plaintiff may have to show that the transportation agency failed to exercise discretion in the design process by preparing the design without adequate care, by making arbitrary or unreasonable design decisions, or by creating a design that contained an inherently dangerous defect from the beginning of use.