Model Language for Internal Guidance

The following language incorporates many of the concepts identified in the Green Book, Roadside Design Guide, and Highway Safety Manual and could be incorporated in agency guidance or resource documents:

• This material is a guide. It is not a legal standard, nor is it a policy. It is intended to be used as a resource and beginning point for engineers and other transportation professionals. The materials should be used in combination with the engineering judgment, operational experience and objective engineering analysis of the user. Any recommendations herein are subjective and should be modified for each individual situation. Decisions that do not comply with the recommendations in this publication should be documented, and the documentation kept in a secure location that can be accessed by other professionals in the future.
• The information is intended to assist engineers and other transportation professionals in making knowledgeable decisions about the most appropriate engineering applications on individual projects. The guidance provided in this resource equips transportation professionals with tools to evaluate potential tradeoffs such as cost effectiveness and long-term performance of different design and operational alternatives.
• While new ideas, values and concepts may be included in this material, the incorporation of these concepts does not imply that existing roadways are unsafe, nor does it mandate any upgrades or changes to operational practices.

Model Language Specific to Use of Data

• This data can be used to guide engineering decisions. The agency is constrained by a limited budget and multiple competing needs. The fact that the analysis of this data is in progress does not require the agency to perform the work that is contemplated or may be suggested by the data. This data is protected by 23 U.S.C. § 407.

D. Section Wrap Up

This section includes selected agency and industry data-driven practices as well as other practices that have been found to be helpful to the governmental agency in defending legal claims against it. This section also provided model language that could be included in agency guidance.

IX. SURVEY AND DISCUSSION OF RESULTS

The researchers developed an online survey that they sent out to 44 state transportation agencies to determine what tools or legal theories, if any, their counsel were using to minimize liability risks associated with using cumulative collision data.

A. Methodology

The survey was developed to solicit information from state transportation attorneys regarding their experiences with:

1. Negligence cases based on a theory of “failure to improve” after a road had been identified for possible safety improvements by a proactive safety analysis;
2. Legal defensive strategies that might be used to mitigate risks to transportation agencies who were concerned about liability when collecting data for and later testing, selecting, and prioritizing proactive safety initiatives; and
3. Potential pre-emptive or defensive measures used to protect data and collection processes such as:
   1. The use, protocols, and efficacy of liability neutral language and
   2. Shielding cumulative collision data from disclosure to the public or litigants, which, if misinterpreted, could encourage or prolong litigation.

The recipient attorneys were identified by the Standing Committee on Safety, Risk Management and Tort Liability (AQL17). Out of 44 surveys sent out, 4 responses were received. Because response rate was low, and to deliver additional context to responses received, researchers supplemented the survey results with a comprehensive review of statutes, caselaw, and DOT websites to capture information that could inform this digest and give insight into legal defenses, or potential legal defenses in this emerging area of law.

B. Use, Protocols, and Efficacy of Liability Neutral Language

Transportation engineering documents are frequently used by litigants as evidence bearing on the standard of care to which transportation agencies are held. The agency can avoid the use of language that creates unreasonable ministerial duties or implies a lack of safety in its resource materials and manuals.

Liability neutral language is a writing style that avoids language and concepts that have negative legal implications. When asked about the protocol for reviewing documents to ensure language neutrality, two survey respondents advised that their agency has a protocol which requires a review of policy, guidance manuals, or other directive documents to ensure language is liability neutral. One state has had its protocol in place for over 3 years. For that state, documents reviewed include but were not limited to policy documents and technical guidance or instruction documents. The reviews take place when the documents are issued or updated.

One respondent has had the opportunity to test liability neutral language often during mediation, less often in trial, and never during arbitration. No respondent had briefs or case decision examples of how such language had been argued or impacted the outcome of a legal case, although respondents acknowledged that the use of the terms “hazardous” or “dangerous” or “slippery” when used to describe a highway or feature of the roads implied could lead the public or a jury to conclude that the road was not reasonably safe.

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¹⁵⁴ AASHTO, HIGHWAY SAFETY MANUAL (2010).

Researchers searched for the phrase “liability neutral” on all 50 state agency websites. Seven states had publicly available documents acknowledging the concept of liability neutral language and recognizing its utility. One state has training for the use of liability neutral language practices. The target audience for the training was for non-attorney agency staff.

Qualifying Language

Qualifying language is language that points to the need to use discretion, such as “this data is used to guide engineering decisions based on limited budget and multiple needs and does not include a requirement to perform the work that is recommended herein.” The incorporation of qualifying language in the agency’s resource documents can help the practitioner implement the priorities of the agency and conveys the need to incorporate those priorities—or the flexibility to incorporate other priorities—in the project at hand.

Two of the survey respondents indicated the use of qualifying language in their agency’s policy, guidance manuals, or other directive documents. In both cases these documents are reviewed by their Legal Department, with one adding that engineer managers or human resources may also conduct such reviews, depending on the document. A statement that limits or attempts to limit the use of data, can be helpful to the defense of a claim.

C. Shielding Cumulative Collision Data from Public Disclosure and/or Its Use in Litigation

Protecting cumulative collision data from public disclosure to prevent misinterpretation of the information is another means of minimizing risk for the agency and staff. This can be accomplished in a number of ways: by taking advantage of exceptions to an open records law, by exercising the deliberative process privilege, use of 23 U.S.C. § 407, or a combination of these ideas.

Open Records Acts

Three of the four responses to the Qualtrics survey indicated that cumulative collision data would be made publicly available as provided in their state’s public records act. The remaining response indicated the information would be permanently shielded from an open records request. None of the respondents were aware of any significant decisions under their open records statute involving developing or testing new approaches to transportation design, construction, traffic control, or maintenance. This included the collection and use of cumulative collision data.

Three of the four agencies responding offered training on how to respond to an open records request to ensure knowledgeable employees processed those requests. All four have documentation on such training, with two providing web links to their information and two indicating there is documentation.

States with open records laws preventing disclosure of certain research data include Idaho,¹⁵⁵ Indiana,¹⁵⁶ Kentucky,¹⁵⁷ Michigan,¹⁵⁸ and South Carolina.¹⁵⁹

Michigan law contains a disclosure exception for “Research data on road and attendant infrastructure collected, measured, recorded, processed, or disseminated by a public agency or private entity, or information about software or hardware created or used by the private entity for such purposes.”¹⁶⁰

Practice note: As of July 2025, there are 60 University Transportation Centers in 41 states which are funded in part by the US Department of Transportation. Among other areas of research, these centers assist transportation agencies in their work under 23 U.S.C. § 152. Transportation agencies that work in conjunction with these research facilities may benefit from a protocol that would flag information which is subject to release under open records laws so those agencies would be aware that the information should not be provided in response to public records requests.

Agency Use of 23 U.S.C. § 407

Three of the four DOTs had experience with the federal statute 23 U.S.C. § 407 and found it helpful to the agency during litigation. Attorneys were able to protect both data and studies/reports from use in litigation. As an example, one responding state collected crash information for the purpose of determining whether to add a traffic signal to an intersection. Attorneys were able to protect the data collected from repeated discovery requests. Another responding state changed its protocol after being required to provide such information under an open records request because the state was not in litigation at the time. The state now watermarks such documents, indicating they are not waiving their rights under the federal statutes in case litigation ensues.

Two survey responses indicated states had waived their rights under 23 U.S.C. § 407 because the documents were helpful to the states’ litigation position, one indicating the data showed how reasonable the state’s decisions were. None of the states, apart from Michigan, have a state statute which provides protection similar to those under 23 U.S.C. § 407 and may act as a shield to public inspection without assistance from any federal legislation.

Open Records Laws and Their Interplay with 23 U.S.C. § 407

While a comparison of the privilege relating to data and reports that are protected by federal law and its intersection with state public records law is beyond the scope of this digest, each of the 50 states’ open records laws were reviewed.

The review was done to determine the extent that laws relating to open records, which encourage the dissemination of

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¹⁵⁵ IDAHO CODE § 74-107 (20) (21) (2024).

¹⁵⁶ IND. CODE ANN. § 5-14-3-4(a)(6) (LexisNexis 2024).

¹⁵⁷ KY. REV. STAT. § 61.878 (1) (b) (1976).

¹⁵⁸ MICH. COMP. LAWS SERV. § 15.243 Sec. 13.(aa) (1976).

¹⁵⁹ S.C. CODE ANN. § 30-4-40 (A) (1978).

¹⁶⁰ See, MICH. COMP. LAWS SERV. § 15.231 et. seq.

information held by a public agency, contradict or expand the usefulness of 23 U.S.C. § 407.

The State of Utah litigated this issue in Miller v. Utah DOT,¹⁶¹ when a plaintiff sued UDOT based upon the agency’s failure to provide median barriers at the location of the accident. Plaintiff’s discovery request included a request for accident history data which had been compiled by UDOT to comply with their participation in federally funded highway projects.

UDOT attempted to prohibit the disclosure and use of the data pursuant to 23 U.S.C. § 407 (then 409) and for a protective order. At the same time, the plaintiff requested the data, using an open records request, from the University of Utah’s Intermountain Injury Control Research Center, which had obtained it from UDOT for another use. The court did not allow the use of the data during trial.

At the close of trial, plaintiff’s counsel submitted a jury instruction which would have informed the jury about the existence of 23 U.S.C. § 407 and directed it not to let the lack of evidence about accident history affect their deliberations. The instruction was rejected by the trial court. The court instructed UDOT that it could not imply that the “absence of accidents gives a reasonable inference of safety.”¹⁶² The trial court found the UDOT was not negligent. The Plaintiff appealed.

The Utah Supreme Court found that the jury instruction should have been allowed, noting that “the requested jury instruction was even-handed, directing the jury not to let the absence of accident history evidence affect their deliberations in any way. While the instruction would not have prejudiced UDOT, it would have lessened the prejudice the Millers suffered from their inability under Section 409 to introduce that evidence.”¹⁶³

Addressing the issue of the public records request, the court noted that even though the University had the accident history data, it had been made available by UDOT for ongoing research and should have been subject to the same protections that it had in UDOT’s hands. The court balanced the interests of public disclosure as follows:

With regard to the interpretation of open records laws visà-vis 23 U.S.C. § 407, Kentucky’s law prevents disclosure if that disclosure is contrary to a federal statute or regulation.¹⁶⁵ Other states with provisions preventing disclosure if contrary to another law or federal law include Hawaii,¹⁶⁶ Illinois,¹⁶⁷ Indiana,¹⁶⁸ Kansas,¹⁶⁹ Maine,¹⁷⁰ Maryland,¹⁷¹ Mississippi,¹⁷² Missouri,¹⁷³ Montana,¹⁷⁴ Ohio,¹⁷⁵ Oregon,¹⁷⁶ Rhode Island,¹⁷⁷ South Carolina,¹⁷⁸ Texas,¹⁷⁹ Utah,¹⁸⁰ Vermont,¹⁸¹ and Wisconsin.¹⁸²

Practice note: When asserting the protections under 23 USC § 407 counsel could file simultaneous motions, one to prohibit disclosure pursuant to discovery and another for a protective order in case there is an attempt to collect the same data from another source. The agency would also provide notice of the protective order to any other entity in possession of this information, particularly if it was provided by the transportation agency, so they will know to contact the agency should the entity get a request for disclosure.

Availability and Use of the Executive Deliberative Process and Self-Critical Analysis Privileges

The survey also included questions regarding the use of the executive deliberative process privilege.

The states of three of the survey respondents recognize the executive deliberative process privilege. Generally, that

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¹⁶¹ 285 P.3d 1208 (Utah 2012).

¹⁶² Id. at 1213.

¹⁶³ Id.

¹⁶⁴ Id. at 1216 (citations omitted).

¹⁶⁵ KY. REV. STAT. ANN. § 61.878 (1) (2025).

¹⁶⁶ HAW. REV. STAT. § 92F-13 (2) (2024).

¹⁶⁷ 5 ILL. COMP. STAT. 140/7 (1) (a) (2025).

¹⁶⁸ IND. CODE ANN. § 5-14-3-4 (a) (3) (LexisNexis 2024). But see Indiana DOT, Div. of R.Rs. v. Overton, 555 N.E.2d 510 (Ind. Ct. App. 1990) with regards to 23 U.S.C.S. § 409 [now 407], “. . . although it makes the enumerated documents inadmissible and unavailable for consideration by a factfinder during a trial for damages, it does not declare the documents privileged or require that they be kept confidential. Therefore, 23 U.S.C.S. § 409 is not a federal statute that would prohibit their disclosure during discovery.” Importantly, this was a pre-1995 decision.

¹⁶⁹ KAN. STAT. ANN. § 45-221 (a) (1) (2014).

¹⁷⁰ ME. REV. STAT. ANN. tit. 1 § 402 3. A (1975).

¹⁷¹ MD. CODE GEN. PROVISIONS § 4-301(a)(2)(ii) (2024).

¹⁷² MISS. CODE ANN. § 25-61-11 (2024).

¹⁷³ MO. REV. STAT. § 610.021 (2025).

¹⁷⁴ MONT. CODE. ANN. § 2-6-1003 (4) (2023).

¹⁷⁵ OHIO REV. CODE ANN. § 149.43 (A)(1)(v) (2025).

¹⁷⁶ OR. REV. STAT. § 192.355 (8) (2023).

¹⁷⁷ R.I. GEN. LAWS § 38-2-2 (E) (2024).

¹⁷⁸ S.C. CODE ANN. § 30-4-40(a)(4) (1978).

¹⁷⁹ TEX. GOV’T CODE § 552.101 (1993).

¹⁸⁰ UTAH CODE ANN. § 63G-2-107 (1) (a) (2024).

¹⁸¹ VT. STAT. ANN. tit. 1, § 317 (c) (1) (2025).

¹⁸² WIS. STAT. § 19.36 (1) (2024).

privilege is defined as a privilege which allows public officials to withhold documents when public disclosure would deter the open exchange of opinions and recommendations between government officials.¹⁸³

A review of open records laws determined that multiple states incorporated the deliberative process privilege into their open records laws, including California,¹⁸⁴ Connecticut,¹⁸⁵ Illinois,¹⁸⁶ Indiana,¹⁸⁷ Kansas,¹⁸⁸ Kentucky,¹⁸⁹ Michigan,¹⁹⁰ New Hampshire,¹⁹¹ New Jersey,¹⁹² Pennsylvania,¹⁹³ South Dakota,¹⁹⁴ Texas,¹⁹⁵ Vermont,¹⁹⁶ and Wyoming.¹⁹⁷ Other states accept a common law deliberative process privilege as a protection from public disclosure. States acknowledging the common law privilege include Alaska,¹⁹⁸ Colorado,¹⁹⁹ Washington,²⁰⁰ and West Virginia.²⁰¹ Hawaii²⁰² specifically ruled that the privilege is incompatible with their open records act, therefore deliberative information is not exempt from disclosure in that state.

Practice note: The deliberative process privilege can be helpful in shielding documents that might otherwise be subject to disclosure. It does not require that the parties be in litigation or limit protection to the discovery process. The protected information must be used to consider policies, decisions, or other actions that are not yet final. The purpose of the privilege is to allow frank and honest communication among agency staff. The Michigan statute has been interpreted as expanding the deliberative process privilege as it relates to “frank communications” allowing such information to remain protected even after a final action has been taken or a final decision has been made.²⁰³

D. Legal Defenses Used in Cases Involving Proactive Safety Improvement Efforts

The Qualtrics survey attempted to obtain an understanding of the way states plan to defend litigation involving proactive safety measures. The following includes information on specific tort defenses allowed in those states as well as a brief review of cases that incorporate the concepts of failure to warn and failure to improve.

Three of the four respondents reported that their state recognizes qualified immunity as a defense against tort liability. One respondent also indicated other defenses such weather immunities, temporary condition of a public road, and design of a highway if loss occurred more than twenty years after the road was designed.

A second respondent indicated defenses are found in the state’s Tort Claims Act. Those defenses included allowing a reasonable time to replace or repair a traffic or road sign after actual or constructive notice was given to the agency, the use of discretion in placing or removing traffic control signs and devices, failure to make an inspection or making an inadequate or negligent one when the inspection does not involve government property, weather or other temporary natural conditions unless the condition is affirmatively caused by the negligent act of the governmental entity, and any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.

In a review of cases that include an allegation of “failure to improve” a road feature or facility, the researchers found that many states do not hold that transportation agencies have a duty to improve a roadway but recognize there is a duty to repair a dangerous condition. Courts make a distinction between a duty to repair and a duty to improve. Roads that are maintained in such a way that they meet the engineering and design standards that were in place at the time the road was constructed are presumed to be reasonably safe.

If a road has deteriorated to the point where there is a known hazard, there is a duty to repair, but if a repair that cannot be accomplished within a reasonably short time is needed, the agency has a duty to warn of the condition.

Following is an abbreviated discussion of cases that illustrate the legal concepts discussed herein.

Design Practices

The general rule is that a reasonably safe roadway is determined by the generally accepted industry guidance in place at the time the design plan was approved by a professional engineer, or at the time of construction if there is a significant gap in timing.

Arizona

Title 12, section 820.03 of the Arizona Revised Statute provides an affirmative defense or “state of the art” defense to the governmental agency in cases alleging the presence of a

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¹⁸³ See Griswold v. Homer City Council, 428 P.3d 180 (Alaska 2018).

¹⁸⁴ CAL. GOV’T CODE § 7927.500 (2024) (adopts deliberative process privilege but requires a balancing of interest test).

¹⁸⁵ CONN. GEN. STAT. § 1-210 (a) (1) (2019).

¹⁸⁶ 5 ILL. COMP. STAT. 140/7 (1) (f) (2025).

¹⁸⁷ IND. CODE ANN. § 5-14-3-4 § 5-14-3-4 (a) (6) (LexisNexis 2024).

¹⁸⁸ KAN. STAT. ANN. § 45-221 (a) (20) (1984).

¹⁸⁹ KY. REV. STAT. § 61.878 (1) (i) (1976).

¹⁹⁰ MICH. COMP. LAWS SERV. § 15.243 Sec. 13. (1) (m) (1976).

¹⁹¹ N.H. REV. STAT. ANN. § 91-A:5 X (2024).

¹⁹² N.J. STAT. ANN. § 47:1A-1.1 (2024). See also Ciesla v. N.J. Dep’t of Health & Senior Servs., 57 A.3d 40 (N.J. Super. Ct. App. Div. 2012).

¹⁹³ 65 PA. CONS. STAT. § 67.708 (b) (10) (i) (A) (2008).

¹⁹⁴ S.D. CODIFIED LAWS § 1-27-1.7 (2014).

¹⁹⁵ TEX. GOV’T CODE § 552.111 (1993) and Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455 (Tex. Ct. App. 1996).

¹⁹⁶ VT. STAT. ANN. 1 § 317 (c) (24).

¹⁹⁷ WYO. STAT. ANN. § 16-4-203 (b)(v) (2024).

¹⁹⁸ Capital Info. Grp. v. Off. of the Governor, 923 P.2d 29 (Alaska 1996).

¹⁹⁹ COLO. REV. STAT. § 24-72-204 (3) (a) (XIII) (2018).

²⁰⁰ West v. Port of Olympia, 192 P.3d 926 (Wash. Ct. App. 2008)

²⁰¹ Daily Gazette Co. v. W. Va. Dev. Office, 482 S.E.2d 180 (W. Va. 1996).

²⁰² Peer News LLC v. City & Cty. of Honolulu, 431 P.3d 1245 (Haw. 2018) (citing Haw. Rev. Stat. § 92F-13 (3)).

²⁰³ Bukowski v. City of Detroit, 732 N.W.2d 75 (Mich. 2007).

defective design. To use the statutory defense, the agency must show “the plan or design, when created, conformed to generally accepted engineering or design standards and that warnings of any unreasonably dangerous hazards were given that were adequate to permit the public to take suitable precautions.” This defense is effective in Arizona “even if material changes to travel have rendered the roadway substandard.”²⁰⁴

Georgia

Section 50-21-24(10) of the Georgia Code not only exempts the DOT from liability for highway design deficiencies where the highway was initially designed in substantial compliance with existing design standards, it exempts DOT from liability “for its failure to upgrade a highway to meet current design standards.”²⁰⁵

Idaho

Section 6-904(7) of the Idaho Code allows governmental immunity for claims based on a plan or design for construction or improvement to the highways, roads, streets, bridges, or other public property if it is in substantial conformance with engineering or design standards in effect at the time of preparation.²⁰⁶

Louisiana

In Louisiana, it has been held that the failure of the DOTD to reconstruct the state’s highways does not establish the existence of a hazardous defect. In the case of Miller v. Bailey,²⁰⁷ discussed at length supra, the court held that a trial judge erred as a matter of law in holding that the narrow road shoulders were defective simply because they were narrow.

Minnesota

In Minnesota, a court found that immunity was available even though the state’s engineer admitted that the road did not meet current design standards. In explanation, the engineer testified that the county made decisions regarding road re-design based on economic, safety, and traffic concerns, and that it gave priority to roads with high traffic volumes.²⁰⁸

Maintenance Practices

The government has an ongoing responsibility to maintain its roadways, so that they do not fall into a “dangerous condition.”

In Michigan, the department of transportation has a statutory duty to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel,” according to section 691.1402(1) of Michigan Compiled Law.

Similarly, the State of Washington has a common law duty to exercise ordinary care in the repair and maintenance of its public highways. The DOT is required to keep its roads in a reasonably safe condition for “ordinary travel by persons using them in a proper manner.” This obligation can include posting warning signs if the state has actual or constructive knowledge that a condition exists that requires warning.²⁰⁹

Duty to Warn of Road Condition

This duty arises when the agency has actual or constructive notice of a condition in need of remediation. When these conditions are found to exist, a warning of the condition can be sufficient to release the agency from liability, but depending on the nature and magnitude of the condition, additional measures, such as signing or barricading, may need to be put in place until the condition is improved or alleviated. To meet this duty, the government must “adopt appropriate precautions—including warning of hazardous road conditions or temporarily closing roads—to prevent persons exercising due care from suffering injury.”²¹⁰

The following cases further describe some finer points of law:

Duty Limited to Reasonable Maintenance of Road Surface

In Estate of Deborah A. Patterson v. DOT,²¹¹ Plaintiff’s decedent alleged that M-124, a local road, should have been widened when a bike lane was established on it. The decedents were struck and killed by a vehicle as they rode in the designated bike lane. The vehicle was traveling in the same direction as the decedents and struck them when it crossed the fog line.

The state of Michigan enjoys discretionary immunity, although there are six exceptions, “one of which is for failure to keep the highways in reasonable repair . . . [O]nly the travel lanes are subject to the duty of repair.”²¹²

The Estate of Patterson court noted that governmental agencies in Michigan do not have a duty to improve or enhance highways, for example by widening lanes, and the only recoverable claim against the transportation agency was a claim relating to the surface of the road itself. The court did not find a causal connection between the condition of the road’s surface, the addition of the bike lane, and the deaths of the bike riders. Once the court found that the designation of a bike lane did not relate to the repair of the road, it affirmed the lower court’s summary disposition of plaintiff’s claim.

In Minnesota, the government’s duty is limited to reasonable maintenance or repair and does not have a duty to correct design defects or to correct defects arising from construction of the highways.²¹³

Minnesota courts define “maintain” as keeping the roadway “in a state of repair, efficiency, or validity: preserve[d] from failure or decline,” and define “repair” as “to restore to a good or sound condition after decay or damage; mend.”

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²⁰⁴ See Glazer v. State, 237 Ariz. 160, 347 P.3d 1141, 1143 (Ariz. 2015).

²⁰⁵ See DOT v. Cox, 540 S.E.2d 218 (Ga. Ct. App. 2000).

²⁰⁶ See Lawton v. City of Pocatello, 886 P.2d 330 (Idaho 1994) and Elce v. State, 716 P.2d 505 (Idaho 1986).

²⁰⁷ 621 So. 2d 1174, 1184 (La. Ct. App. 1993).

²⁰⁸ Barrett v. Itasca Cnty., C2-98-1122, 1998 Minn. App. LEXIS 1341 (Ct. App. Dec. 15, 1998).

²⁰⁹ See McCluskey v. Handorff-Sherman, 882 P.2d 157 (Wash. 1994).

²¹⁰ See Staat v. Ind. Dep’t of Transp., 177 N.E.3d 427, 430 (Ind. 2021) and Mixon v. Houston Cnty., 598 So. 2d 1317 (Ala. 1992).

²¹¹ No. 342514, 2019 Mich. App. LEXIS 374 (Ct. App. Feb. 28, 2019).

²¹² See Grimes v. Dep’t of Transp, 715 N.W.2d 285 (2006).

²¹³ Citations are not included herein for the purpose of brevity.