I. Guidance Existing at the Time of Construction

Roadways built in compliance with guidance existing at the time of construction are reasonably safe. Even though new guidance may suggest new roadway treatments or methods of addressing congestion, capacity, road geometry, or other features, existing treatments remain safe for use by the traveling public. The analogy can be made that a family does not buy a new oven every time a new model becomes available if the old oven still performs well. This concept is frequently acknowledged in the AASHTO guidance manuals and state technical guidance.

III. SUMMARY OF LEGAL CONCEPTS IN THE DIGEST

This section contains a summary of federal and state laws that can be used to defend liability claims involving data kept and used by the transportation agency, common methods used in the defense of claims, and a guide to tort principles.

Every transportation agency collects data and uses it to inform its decision-making process. To study the use of traditionally collected and predictive data in transportation law, the research team sought out litigated cases that discussed the use of engineering data in combination with generally accepted industry guidelines relating to highway design, construction, and maintenance. The publications relied upon in those cases included the Highway Safety Manual (HSM), the Manual of Uniform Traffic Control Devices (MUTCD), the Roadside Design Guide,¹⁴ and the Policy on Geometric Design of Highways and Streets (the Green Book),¹⁵ as well as other materials such as internal engineering guidance.

In general, the researchers noted that the agency’s accurate interpretation of the data and a reasonable plan for use of the data were relevant to the successful outcome of the case. The successful defense of a claim frequently related to the specific language used in agency guidance, the documented use of engineering judgment, and whether the finder of fact determined that the agency was in substantial compliance with its own and nationally accepted industry guidance. In short, to be defensible, the agency’s actions must make sense to the trier of fact.

A. Elements of a Tort Claim

The elements of a tort claim are the presence of a duty, breach of that duty, proximate (or actual) cause of damages, and monetary damages. In the context of a tort claim against a governmental agency, this means that the defendant governmental agency was required to take steps to prevent an injury from occurring, the governmental agency failed to take those steps, an injury occurred, and the agency’s failure to comply with the legal duty caused the injury. For example, the agency was required to erect a stop sign at an intersection, failed to erect the stop sign, a crash occurred because the drivers did not know which one was supposed to stop at the intersection, and people were injured.

In order to bring a successful tort claim against a government agency, a plaintiff must establish: (1) that a “dangerous condition” existed on the property at the time of the injury; (2) that the dangerous condition proximately caused the injury; (3) that the dangerous condition “created a reasonably foreseeable risk of the kind of injury which was incurred,” and (4) that either (a) the dangerous condition was caused by a negligent employee or, alternatively, (b) the public entity knew or should have known about the condition that caused the damage to occur.¹⁶

B. Use of a Theme

Many attorneys choose to frame their case theory by using a theme. Commonly used themes in transportation litigation are:

• Compliance with Rules. A state department of transportation could frame its defense by using a theme based on rule compliance. For instance: “Industry has developed rules for safety over the past 50 years. Those rules are found in the Highway Safety Manual and the Roadside Design Guide. The DOT followed the rules.”
• Prioritization of Resources. A governmental agency cannot do all the work that needs to be done immediately. There is not enough money in the world to accomplish that goal. Governments operate on limited budgets. The government can and does prioritize projects based on information and data available at the time it is considering an improvement. It uses a structured method to analyze and prioritize projects.
• A Safe Road Can Be Made Safer. A road that is reasonably safe can be enhanced to provide additional safeguards for the traveling public. The agency complied with its own and industry guidance at the time the road or road feature was developed and installed, and over time upgraded that road or feature to incorporate newer practices.

C. Federal and State Laws Control the Use of Transportation Funds

While state agencies are frequently bound by state statutes, regulations, and internal guidance mechanisms, any agency that relies upon federal funds for its operation must also operate

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¹⁴ AASHTO, ROADSIDE DESIGN GUIDE (4th ed., 2011).

¹⁵ AASHTO, A POLICY ON GEOMETRIC DESIGN OF HIGHWAYS AND STREETS (7th ed., 2018).

¹⁶ California’s law is just one example of this. See, CAL. GOV. CODE § 835 (West 1963) (Liability of Public Entities). Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
^(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

within the guidance provided by the United States Department of Transportation and the Federal Highway Administration.

D. 23 C.F.R. § 625.2

23 C.F.R. § 625.2 and other enabling or guiding regulations can be used as the basis of a legal defense. 23 C.F.R. § 625.2 contains the specifications of the Federal Highway Administration for geometrical and structural design of the National Highway System and identifies the priorities for those projects:

The concepts of flexibility and context sensitivity are integrated in the language of the regulations as indicated by the bolded words in the language (emphasis added).

In Rothrock v. United States,¹⁸ the Plaintiff sued to recover for injuries that were alleged to have been caused by a lack of guardrail on an interstate bridge. The Plaintiff argued that the language of the Code of Federal Regulations (C.F.R.) required guardrail at the location where the crash occurred. The court found that the C.F.R. did not contain mandatory language, noting that it explains “. . . part of the overall regulatory scheme involving policy decisions and competing considerations.”¹⁹ The court further noted that the implementing agency is directed to consider and balance many public policy factors in reviewing aspects of design and maintenance and granted a motion to dismiss in favor of the United States.

The Rothrock court relied on the provisions in 23 C.F.R. § 625.3(b) which states that “standards, policies, and standard specifications cited in § 625.4 . . . contain specific criteria and controls for the design of [highways]”²⁰ as the basis of its argument that any deviation from C.F.R. standards or specifications supported a claim under the Federal Tort Claims Act.

The court reasoned that while the C.F.R. section provided some specific criteria, the C.F.R. was not a mandatory standard, noting that “they are not prescribed mandatory standards . . . but are instead part of the overall regulatory scheme involving policy decisions and competing considerations,” citing Miller v. United States.²¹ The court further noted that the C.F.R. directed the agency to consider and balance many public policy factors in choosing a plan for design and maintenance.

Similar to the C.F.R. on design, the HSIP regulations contain language that is flexible, context sensitive, and reliant on the use of engineering judgment and discretion. While there is little flexibility in the requirement to conduct a safety analysis, the manner of analysis is to be chosen by the state. The states must identify and analyze highway safety problems and opportunities,²² implement a safety data system that will perform safety problem identification and countermeasure analysis,²³ and “improve the timeliness, accuracy, completeness, uniformity, integration, and accessibility of the safety data on all public roads.”²⁴

The states are further required to:

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¹⁷ 23 C.F.R. § 625.2 (Policy) (emphasis added).

¹⁸ 883 F. Supp. 333 (S.D. Ind. 1994).

¹⁹ Id. at 335.

²⁰ 23 C.F.R. § 625.3(b).

²¹ Miller v. United States, 710 F.2d 656, 666-67 (10th Cir. 1983).

²² See, 23 U.S.C. § 148(c)(1)(A).

²³ See, 23 U.S.C. § 148(c)(2)(A).

²⁴ See, 23 U.S.C. § 148(c)(2)(A)(i).

²⁵ 23 U.S.C. § 148 (c)(2)(B) (emphasis added).

E. Integration of Safe Systems Approach in Federal Law

The SSA is part of a proposed federal rule that would require the data-driven methodology to be used by recipients of federal funding.²⁶

A basic tenant of the SSA methodology is that all those who use the system share responsibility for the system. Using the principles of the SSA, the transportation agency is encouraged to build layers of protection into the road system by anticipating and accommodating human error. The agency is to identify areas of “risk” in the system and find opportunities to share responsibility along with others who design, build, manage, and use the system. While the use of the Safe Systems methodology is not yet incorporated by federal regulation, the concept can be used as guidance by the states. See the emphasis-added language in this section.

Some of the specifics of the SSA are as follows: ²⁷

• Removing severe conflicts involves the elimination of specific high-risk conditions. This concept involves separating road users who are moving at different speeds or different directions to minimize conflicts with other road users. Strategies that might be used are removing intersection crossing conflicts, removing fixed objects along the roadside, or eliminating railway-highway crossings. Strategies may also include providing physical separation between motorized and non-motorized users to remove conflicts.
• Reducing vehicle speeds. Implementing design features and speed management strategies to reduce vehicle speeds effectively reduces the injuries in a crash should it occur. These speed management strategies may include setting speed limits, such as by self-enforcing roadways, traffic calming measures, and cameras. Self-enforcing roads involve the use of road and roadside design elements, such as lane narrowing, intersection channelization, and horizontal and vertical deflection, to elicit lower travel speeds of motor vehicles along the roadway. Treatments include features for pedestrians and bicyclists, such as median islands, raised crosswalks, and buffered bicycle lanes.
• Manage time conflicts. This strategy separates the roadway users in time using traffic control devices, such as traffic signals or hybrid beacons, to minimize vehicle conflicts. Providing discrete and alternating opportunities for users to navigate the roadway environment is not only a safety strategy, but also one that relates to user comfort and convenience, especially for non-motorized users.
• Increase attentiveness and awareness. This concept involves alerting roadway users to certain types of conflicts so that appropriate action can be taken consistent with the SSA.

Examples that fall into the last category include crossing visibility enhancements, backplates with retroreflective borders, and rumble strips/stripes.²⁸

Practice note: Regarding incorporation of the SSA in the defense of a road condition claim, no reported cases specifically addressed or included the SSA as an element of a claim against a governmental agency. However, as the law becomes more robust, and the SSA becomes more integrated into state practices, case law will develop. In practical terms, the SSA is flexible and includes many different methods and strategies to address road conditions. In order to show compliance with the methodology, the agency can introduce evidence of its analysis of appropriate countermeasures and inclusion or discussion of the proposed strategies in its documentation of its engineering decisions. Washington State has adopted an SSA that varies slightly from FHWA guidance, adding a component of “safer land use” and incorporating text in its guidance that states “The Safe System will take time to achieve, it is important to have a means to prioritize projects and strategies for reducing crash potential and very important how to communicate the process.”²⁹

State Law

States may incorporate flexibility and prioritization methodology in state law. For example, Washington State’s Priority Programming for Highway Development reads (in pertinent part):

While Washington State has given the transportation agency broad direction and discretion, other state laws are very specific in the manner which terms of art are defined, and practices are outlined. The following case illustrates the importance of familiarity with state law during the implementation of agency practices.

F. Definition of Terms in Internal Guidance

In Lafeyette City-Parish v. Lucile Randol Heirs, LLC.³¹ the court considered the definition of the phrase “best modern practice” in the context of the acquisition of property by the parish for a public improvement. Louisiana statute required the

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²⁶ See notice of proposed rulemaking (89 Fed. Reg. 13000) (Feb. 21, 2024) (to be codified at 23 C.F.R. pt. 924).

²⁷ See FHWA, The Safe System Roadway Design Hierarchy, HSIP FUNDS SAFE SYSTEM SOLUTIONS, https://highways.dot.gov/sites/fhwa.dot.gov/files/2024-11/fhwa-sa-24-059_508.pdf (last visited Dec. 7, 2024).

²⁸ FHWA, SAFE SYSTEM ROADWAY DESIGN HIERARCHY, https://highways.dot.gov/sites/fhwa.dot.gov/files/2024-01/Safe_System_Roadway_Design_Hierarchy.pdf (last visited Dec. 1, 2024).

²⁹ Michelle Deng, Breland Gowan, Darren Torbic, and John Milton, The Power of Clear Language in Highway Safety Documentation, Presentation for TRB Webinar, Transportation Research Board, Washington, D.C. (2026).

³⁰ § 47.05.010 (Declaration of purpose).

³¹ 362 So. 3d 639 (La. Ct. App. 2022).