agency to prove that the agency’s acquisition of public property was necessary according to the “best modern practices.”³²

In pertinent part, the statute reads:

In support of the petition seeking the authority to acquire property, the parish engineer testified that the location and design of the proposed detention ponds were in accord with “best modern practice,” and sound engineering principles. However, on cross examination the witness admitted that the agency did not define “best modern practice” within its guidance.

The engineer testified that the term meant that “he should analyze the project using state of the art technology and data and then design using his best engineering judgment in accord with up-to-date drainage practices.”³⁴ In its written opinion, the court defined best modern practice as “relating to design and construction of highways in accord with best engineering practices and experiences as well as minimum safety standards approved by AASHTO.”³⁵

Practice note: The agency is responsible for its own guidance and the language within it. In this case, the court settled on a definition that followed industry guidance, and the agency was not harmed by its application.

G. Section Summary

A comprehensive review and understanding of federal and state law is essential to the success of the agency in litigation. Integration of the concepts identified herein can assist the transportation agency in defending claims against it. Federal law, and the concepts outlined therein such as the use of engineering judgment and liability neutral language, can be used as the core of the agency’s defense. State transportation agencies may have similar laws, administrative rules, or internal guidance, as discussed supra and later in this digest.

IV. BASIC TORT PRINCIPLES

This section describes the basic tort principles of the duty of care of both the governmental agency and a motor vehicle driver, foreseeability, and notice.

A. Standard of Care or “Duty” of State Transportation Department

The state department of transportation is charged with providing a reasonably safe road to the traveling public and taking reasonable actions to keep its roads in that condition. In many states, the requirement for a road to be “reasonably safe” is found in state law.

The legal concept of a “reasonably safe” road does not change with the implementation of the predictive data or systemic analyses required by the Highway Safety Improvement Program. Whether an agency has fallen below the required standard of care with the improvement or lack of improvement at a particular location “is a fact-intensive inquiry for which the various . . . guidelines, as well as available funds and cost effectiveness, may be considered.”³⁶

Evidence of compliance with generally accepted industry guidance can be used to show that an agency has met the legal duty of providing a reasonably safe road for the traveling public.³⁷

The government is not required to anticipate and design for all imaginable acts.³⁸ The government’s duty of care is described in Washington as the duty to exercise reasonable care to design and maintain public highways which are “reasonably safe for ordinary travel.”³⁹

Practice note: If an agency becomes aware of a location that has pavement with reduced friction in wet weather, the agency can install a “slippery when wet” sign much more quickly than it can program a paving project or design an infrastructure change. If the agency presents proof that it took incremental or inexpensive steps to address a known condition of its system, a trier of fact will likely consider that to be a reasonable short-term response.

B. Driver Conduct and Duty of Care

The driver of a motor vehicle is required by law to operate his or her vehicle with the “highest degree of care” in Missouri.⁴⁰ Other states, such as California, require drivers to use “reasonable care.”⁴¹ An application of this legal standard can be found in the case of Allyson v. Dep’t of Transp.,⁴² where the court found that the California Department of Transportation

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³² La. Rev Stat. § 19:139.1 (2009).

³³ Id., emphasis added.

³⁴ 362 So. 3d 639 (La. Ct. App. 2022), at 647.

³⁵ Id., at 649.

³⁶ Commonwealth, Transp. Cabinet v. Babbitt, 172 S.W.3d 786 (Ky. 2005), at 795.

³⁷ Dahl v. State, 820 N.Y.S. 729 (N.Y. Ct. Cl. 2006).

³⁸ See, Stewart v. State, 597 P.2d 101 (Wash. 1979).

³⁹ Nestor v. State, 30 Wash.App.2d 1032, (Wash. Ct. App. 2024) at 10 (citing Keller v. City of Spokane, 44 P.3d 845 (2002)).

⁴⁰ See MO. REV. STAT. § 304.012 (2025).

⁴¹ See California Jury Instruction CACI 700.

⁴² 62 Cal. Rptr. 2d 490 (53 Cal Ct. App. 4th, 1997) (described as “due care” in Section 831 of the California Government Code, as referenced in Allyson v. Dep’t of Transp.).

(Caltrans) had no duty to perform snow removal operations on an icy stretch of highway, since the plaintiff admitted to being aware that there was snow on the highway and could not show that the icy conditions were not reasonably apparent to a person exercising due care.

If the road is not designed or maintained in accordance with the practices or guidelines of the agency, a plaintiff, even a passenger in the vehicle of an impaired driver, may prevail in a negligence claim. In Canfield v. State,⁴³ the court noted that a claimant might have acted unreasonably, or even criminally during the sequence of events that prompted a crash, but the governmental agency has a separate duty to provide a reasonably safe road. The court explained that a reasonably prudent driver can exceed the speed limit or be inattentive for a short period of time and the law requires the road to be in a reasonably safe condition, regardless of the state of mind of the driver of a vehicle.

In Canfield, the plaintiff argued that a guardrail was a hazard and should not have been in place along the roadway. The plaintiff alleged that the presence of the guardrail made the roadway unsafe, and that the guardrail was a substantial cause of his injuries (ignoring the fact that he grabbed the steering wheel of the vehicle causing it to suddenly leave the roadway).

The government’s design expert testified that guardrail was necessary due to the presence of a sign, the steepness of the slope of the road, and the existence of a fixed object. The court found the state’s explanation for the presence of the guardrail to be reasonable and stated that “the determination to place a guide rail in this vicinity was reasonable and based on a study of the conditions,”⁴⁴ referring to an engineering study which was contained in the record. The court, however, found fault in the method that the agency used to calculate the length of the guardrail, and found in favor of claimant on that issue.

Practice note: The Canfield court relied heavily upon the documentation of the agency to determine that the guardrail should have been present, commenting that “. . . the documentation clearly indicates . . . substantial and extensive study”⁴⁵ on the part of the department of transportation.

One of the basic requirements of the SSA is the evaluation of the effectiveness of countermeasures identified in the Highway Safety Manual. If the agency can show that it implemented and evaluated the merits of countermeasures, that study or information can be used to defend a claim that an accident history should have prompted an infrastructure or other improvement.

In Taylor-Rice v. State,⁴⁶ an impaired driver, who had been speeding and driving erratically, left the roadway and hit the turned-down end of a guardrail, causing the vehicle to travel through the air and strike a utility pole. The driver was convicted of negligent homicide after two passengers in the car died. Their families sued the State of Hawaii, claiming that the guardrail, which had been installed in the 1970s, caused the ramping of the vehicle. The roadway plans showed that a geometric improvement project had occurred in the area where the crash occurred in 1990, and that the original guardrail was left in place at that time. Internal guidance during the period of reconstruction provided that “any replacement or upgrading made to . . . highways . . . should conform, where practical . . .”⁴⁷ to the Roadside Design Guide and the Green Book, which recognized the potential for the buried end treatments to vault or roll vehicles when struck.

The state defended the claim, arguing that it had a duty only to those who exercise ordinary care. Because the evidence showed that the driver was traveling 5 miles over the speed limit, the court reasoned that the same consequences could have occurred with an unimpaired driver. The court determined that since an upgrade of the road had occurred, and the standards at the time of the upgrade required the removal of the turn-down end treatment, the road was not reasonably safe. The court noted that one of the factors it considered in its evaluation of the claim was the agency’s failure to comply with its own guidance.

C. Foreseeability

When evaluating the foreseeability of harm, the trier of fact is asked to consider how likely a reasonable person (or in the context of this digest, a reasonable governmental agency) would be to anticipate the specific potential or actual results of the actions taken by the agency.

This concept is frequently incorporated during the engineering study phase of a project, when data can be used to predict the usefulness of a particular engineering treatment. For example, the transportation agency might anticipate that a driver could stray from the paved road as much as 30 feet. But that agency cannot plan to add 200 feet of shoulder or traversable area to accommodate an errant driver, because the agency has to balance the cost of the addition with its knowledge that most drivers can correct or stop a vehicle in the distance of 200 feet. In that example, the benefit of providing the additional traversable area is negligible and difficult to quantify, and the cost for that sort of improvement is high.

The transportation agency can expect a driver to slightly deviate from a roadway on occasion, whether from distraction, weather, or other foreseeable circumstances such as an obstacle or animal in the road or a work zone.⁴⁸

D. Notice

There are two types of notice: actual notice, which means the agency knew about the condition in time to address it, and constructive notice, which means that the agency is presumed to know about a condition because information about the condition was available to the agency. Constructive notice of a

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⁴³ 15 Misc. 3d 113 (N.Y. 2007) at 5.

⁴⁴ Id. at 5.

⁴⁵ Id. at 8.

⁴⁶ 979 P.2d 1086 (Haw, 1999).

⁴⁷ Id. at 67.

⁴⁸ See Trahan v. State, Dep’t of Transp. & Dev., 536 So. 2d 1269 (La. App. 3 Cir.1988) (where the court held that the DOT’s duty of care extended not only to prudent and attentive drivers but also to motorists who slightly exceed the speed limit or are momentarily inattentive).