Addressing Liability Issues of Proactive Safety Improvements (2026)
Chapter: NCHRP LRD 95: Addressing Liability Issues of Proactive Safety Improvements
NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM
Addressing Liability Issues of Proactive Safety Improvements
This digest was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 27-05, Fine Points, Ltd., Jefferson City, MO, in conjunction with Pam Clay-Young and Rachel Catchings, University of Kentucky, Lexington, KY, prepared this digest. The opinions and conclusions expressed or implied in this digest are those of the researchers who performed the research and are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; or the program sponsors. The responsible senior program officer is Gwen Chisholm Smith.
Background
State departments of transportation have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will affect their operations.
Foreword
NCHRP Legal Research Digest 95: Addressing Liability Issues of Proactive Safety Improvements examines the legal considerations facing transportation agencies that adopt proactive, data-driven approaches to roadway safety. The research analyzes how predictive safety methods, used to identify roadway features and locations associated with elevated crash risk, may intersect with tort liability concerns. The findings are intended to assist state departments of transportation in understanding legal risks, available defenses, and strategies to manage liability while advancing safety objectives. The digest will be of particular interest to agency counsel, risk managers, and senior transportation officials.
Transportation agencies increasingly rely on proactive safety analysis to inform roadway design and improvement decisions before crashes occur. However, uncertainty regarding the potential use of proactive safety methodologies, manuals, and guidance in tort litigation has raised concerns about increased exposure to liability. Although federal law limits the admissibility of certain safety data and studies, those protections do not clearly extend to safety manuals or predictive analytical tools. Research was needed to assess whether and how tort liability concerns may affect the adoption of proactive safety approaches.
Under NCHRP Project 20-06/Topic 27-05, the Fine Points, Ltd. research team was asked to examine the legal landscape surrounding proactive safety improvements. This study reviews relevant statutes, case law, and agency practices; identifies litigation in which proactive safety concepts have been raised; evaluates defenses and outcomes; and documents strategies used by transportation agencies to mitigate liability concerns. Based on this analysis, the research explores potential legal, administrative, and policy approaches that may support the use of proactive safety methods while preserving established processes for prioritizing and funding roadway improvements.
