Addressing Liability Issues of Proactive Safety Improvements (2026)
Chapter: X. CONCLUSION
Duty to Monitor Contractor’s Activities and Keep the Roadway in Reasonably Safe Condition During Construction
In Slavick v. State, Dep’t of Transp., Div. of Highways,214 the court considered the duty of the department of transportation in the context of a major road construction project performed by an outside contractor. The accident occurred during the reconstruction of Route 94, a straight, flat two-lane road. The road contained one segment that had a slight dip which created a blind spot that was large enough to hide a motor vehicle. During construction, the top layer of the road was removed, and the solid yellow lines that indicated a no-passing zone were also removed.
The parties agreed that plaintiff Slavick was operating his vehicle in a reasonable and safe manner and traveling the posted speed limit of 35 miles per hour in the construction zone prior to the crash. Slavich was traveling behind another vehicle which did not accelerate when the speed limit on the road increased to 55 miles per hour, and Slavick began to pass the vehicle. No markings on the road identified a “no passing” zone and no warning signs advised of the lack of striping. A head-on crash occurred in the area described above as a “blind spot.”
The court found that the DOT breached its duty to the traveling public when it failed to require a contractor to comply with industry and DOT guidance, which required the placement of temporary pavement markings or the use of warning signs with language such as “Do Not Pass” or “No Passing” signs to warn travelers of the dip in the roadway or lack of sight distance.
Common Law Duty to Improve
Several reported cases discussed the common law duty to improve roadways. As previously noted, the court in Estate of Deborah A. Patterson v. DOT,215 commented that governmental agencies have no duty to improve or enhance highways. Similarly, in Tomassi v. Union,216 after opining that a safe road can always be made safer, the court held “[t]he liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered, fiscal practicality and a host of other criteria.”
Ohio
In Risner v. Ohio Dep’t of Transp.,217 the court considered a fatal collision at an intersection, and the agency’s duty to improve it. After its review of the evidence, the court noted the intersection did not contain any traffic signals when the highway was first constructed. Over time, and in response to public concerns regarding the intersection, the Ohio Department of Transportation (ODOT) installed advance-warning signs and red and yellow flashing lights at the intersection.
The court found that ODOT had immunity for the discretionary decisions it made regarding the whether or not to improve an intersection or highway, which portions of the highway to improve, and what type of improvements to make. In reversing and remanding for further review, the court noted that ODOT has a duty to ensure that it acts in accordance with current construction standards, and it may be subject to liability if it failed to meet those requirements.
E. Survey Wrap Up
The information derived from the survey suggests that negligence actions involving proactive safety improvements can be successfully defended using strategies that have already been determined to be legally sound. The use of cumulative or predictive data has not yet been featured in many reported legal cases, which the researchers believe account for the low survey response. As parties to tort litigation begin to incorporate cumulative data in the framing of their cases, their themes, and their allegations relating to “dangerous conditions” it is likely that cases will become available for further review and analysis.
X. CONCLUSION
Because every governmental agency has limited funds, those agencies must make informed, deliberate decisions on projects and other improvements based on the best and most accurate information available to them at the time the decision is made. Predictive and cumulative data can inform and improve the decision-making process. Rapidly evolving data collection practices can provide the transportation agency with a heightened ability to use its limited resources to make decisions that benefit the transportation system and the traveling public.
The key to the successful defense of a “dangerous condition” claim lies in the documentation of financial and technical decisions of the agency. When the agency can explain, or defend, its decisions by providing a reasonable explanation of its actions, it can successfully defend a claim.
The legal issues relating to collecting, storing, and using data collected by the state transportation department are analyzed in this digest. The digest is intended to provide guidance to transportation professionals who use cumulative, proactive, and predictive data to guide their asset management decision-making process. While few legal cases analyze the concepts of predictive or cumulative data at this time, this is an emerging area of the law and research that expands upon these concepts would benefit the transportation community in the future.
___________________
214 540 N.E.2d 748 (Ohio Ct. App. 1988).
215 No. 342514, 2019 Mich. App. LEXIS 374 (Ct. App. Feb. 28, 2019).
216 385 N.E.2d 581, 582–83 (N.Y. 1978).
217 46 N.E.3d 687 (Ohio 2015).
This page intentionally left blank.
This page intentionally left blank.
