pothole, for instance, can be presumed if the pothole is on the driveway to the DOT maintenance building. In theory, if an agency knew about a condition that needed to be addressed in time to address it before the action or crash that caused injury occurred, the agency may have been able to prevent harm from occurring. While a plaintiff may theorize that since an agency had constructive notice, action should have been taken, such a theory is frequently disproved by the agency.

V. DATA INTERPRETATION IN LEGAL CASES

The following cases involve the use of crash data and other cumulative data that is collected by or in the possession of the transportation agency. The cases analyze the issues of whether accident history alone can constitute notice of a dangerous condition, reasonable responses to a known high crash location, and the actions of the agency in response to the data it had available to it.

A. History of Multiple Accidents Does Not Necessarily Constitute Notice of a Dangerous Condition

The transportation agency collects accident history and statistics. Details such as accident location, frequency, severity, traffic counts, and typical speed of the driver are available for the engineer to review. All this information is used to determine whether any improvements are necessary, and if the determination is made that improvements should be made, which ones are appropriate for the location. The studies and data are developed and collected by the agency in the normal course of their work and may be used in litigation.

In Wymbs v. Twp. of Wayne,⁴⁹ a passenger in a crash sued the township and the State of New Jersey after sustaining serious injuries when the driver of the car he was in failed to negotiate a curve in the road, claiming lack of signing that warned of the condition contributed to the severity of his injuries. Plaintiffs attempted to introduce evidence of multiple previous crashes on the roadway to show that the agency knew the road was dangerous and should have taken steps to prevent further injury. Evidence of the prior crashes was limited by the trial court.

On appeal to the state supreme court, the court found that prior accident history may be used as substantive evidence of a dangerous condition only where plaintiff could establish “(1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.”⁵⁰

B. Notice Requires “Statistically Aberrant” Rate of Accidents

Some courts will review detailed accident statistics to determine if an agency should have been on notice of a dangerous condition of its property. In Wyckoff v. State,⁵¹ plaintiff alleged that the lack of a median barrier on state route 85 caused his injuries and that the accident history in the corridor should have provided notice to Caltrans that the road was in a dangerous condition. The state’s expert testified that the crash data did not qualify the location for a median barrier installation, according to the agency’s criteria. The court considered the following accident history:

The Wyckoff court compared the crash ratio in that case to the ratio discussed in Compton v. City of Santee.⁵³ In Compton, the court considered evidence that four accidents had occurred in less than 5 years at the allegedly dangerous intersection. The evidence was that traffic counts each year were over 4 million through the intersection, while approximately 136,649 vehicles negotiated a left turn in the intersection. The court found that “. . . to prove that this accident history put City on ‘notice’ of the ‘dangerous condition,’ it was incumbent on Compton to show this rate was statistically aberrant, i.e., unusual or excessive in some respect.”⁵⁴

Based upon the Compton case, and other similar fact patterns which were detailed within the opinion, the Wyckoff court was not persuaded that nine cross-median accidents over a 24-mile section of freeway during a 21-month period was sufficiently “statistically aberrant” to put the state on notice of a dangerous condition that required improvements.⁵⁵

C. Delay as a Basis for Liability

The court in Friedman v. State,⁵⁶ considered plaintiffs’ claim that the New York DOT’s delay in implementing a plan to remediate the highway was a source of liability. The DOT had studied the location of plaintiffs’ crashes for several years before formulating and implementing its plan to install a median barrier and additional signing. The court consolidated multiple claims and suits for the purposes of this opinion, and only the pertinent parts of the claims are discussed in the following.

A 1973 engineering plan, along with other similar plans, proposed a median barrier, electronic signs, and directional signals that would redirect traffic in the event of lane closures. The plan was proposed in response to multiple crossover accidents in the general location. In 1973, the Authority publicly stated that the project was necessary to improve traffic flow and reduce the severity of crashes in the area, but the court found the Authority took no meaningful steps to implement its plan until 1977.

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⁴⁹ 163 N.J. 523 (750 A.2d 751, N.J. 2000).

⁵⁰ Id. at 759.

⁵¹ 90 Cal. App. 4th 45 (Cal. App., 2001).

⁵² Id. at 51.

⁵³ 12 Cal. App. 4th 591 (1993).

⁵⁴ Wyckoff, 90 Cal. App. 4th at 61.

⁵⁵ See Marshall v. State, 675 N.Y.S.2d 695 (1998) for a similar analysis and holding.

⁵⁶ 493 N.E.2d 893, 502 N.Y.S.2d 669 (1986).

In its review, the court noted that lack of funding for a construction project could be a legitimate reason for delay, stating “that is not to say that, . . . the study and resolution of issues surrounding the concurrent installation of a traffic control system and the optimum location of the barrier, the ostensible cause of the delay, was not warranted. Indeed, a reasonable delay justified by design considerations, as with one resulting from a legitimate claim of funding priorities, would not be actionable.”⁵⁷ However, the court found that the project delay was not budget or design related based on testimony by the parties.

The court found that the 4-year delay in implementing the Authority’s plan to alleviate the dangerous condition was unjustified, and a breach of its duty to the public. The court found that liability for delay was actionable, stating “when . . . analysis of a hazardous condition by the municipality results in the formulation of a remedial plan, an unjustifiable delay in implementing the plan constitutes a breach of the municipality’s duty to the public just as surely as if it had totally failed to study the known condition in the first instance.”⁵⁸

Practice note: The facts of this case are relevant to the agency defense of “reasonable delay” and that concept that incremental steps can be a reasonable response to data that show a need for an improvement at a particular location. The language of the opinion indicates that this court could have found that funding or budget restrictions were a legitimate explanation for the delay.

Specifically, the court found that because the government failed to prove: “1) the five-year delay between the DOT’s recognition of the hazardous condition . . . was necessary in order to study and formulate a reasonable safety plan; 2) that the delay was itself part of a considered plan of action taken on the advice of experts, or 3) the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding.”⁵⁹ The court also noted that there was testimony that construction could have been completed within 18 months of the agency’s approval of the plan.

Policy considerations such as fund securement, design decisions, purchase of land, consideration of competing projects, and interests align with the principles of SSA and the need to study applicable data in a timely manner in order to implement improvements.

The appellate court in Lamaire v. Motor Convoy Inc.⁶⁰ considered the issue of delay in implementation of an improvement, after the trial court granted a directed verdict to the DOT. The city of Lafayette and the DOT planned for the installation of traffic signals at the intersection of Goudchaux, Middlepark, and Sears Drive roads due to the crash history at that location. The signalization plan was prompted in part by fatal crashes that occurred in 1984 and 1985 at that location, 2 years prior to the 1987 accident which spurred the Lamaire suit.

Two city representatives testified that installation typically occurs within 18–24 months of scheduling, and that installation may occur as long as 2 or 3 years after the initial scheduling, due to the need for programming the project, offering it for bid, and the construction process.

The court considered the testimony of the city’s traffic engineer regarding the city’s engineering study. The engineer testified that he followed the guidelines of the MUTCD and accepted procedures of the DOT in conducting the study and determining whether a signal was warranted. The engineer testified that a “warrant” for the signal was determined using criteria in the MUTCD, and that sound traffic engineering judgment must support the decision. The engineer described the need for the application of engineering knowledge and experience to be applied to the data produced by the traffic study and further testified that the conclusion of the study was that the advantages of the traffic signal outweighed the possible disadvantages to it. The following are the specifics of the testimony:

The court noted that the city’s traffic engineer considered all these data points: traffic volumes and movements, the geometry of the intersection, speeds, accidents, and delays. The court further noted that the expert used his education and experience as the basis of the July 1986 recommendation for the installation of a traffic light at the intersection. After further final agency approval of the signal occurred in 1987, installation was completed on March 30, 1988, approximately 10 1/2 months after the DOTD’s final recommendation and a few months after the fatal automobile accident.

The court determined that the city’s actions were reasonable and that the signal was installed within a reasonable time period, based upon the testimony of the agency representative and explanation of the documentation of the agency’s decision-making process.

Practice note: The city of Lafayette’s witnesses testified to accident ratios and other data that could have been protected from use in trial under the 23 U.S.C. § 409 doctrine. The use of that data and doctrine, both as a “shield and a sword,” is discussed in detail later in this digest.

A similar result occurred in the case of Ford v. City of Los Angeles,⁶² where a jury found in favor of the city after

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⁵⁷ Id. at 900, 676.

⁵⁸ Id. 502 N.Y.S.2d at 670.

⁵⁹ Id. at 670.

⁶⁰ 625 So. 2d 638 (La. App. 3rd Cir. 1993).

⁶¹ Id. at 643.

⁶² 47 Cal. App. 5th 277 (Ct. App. 2nd District 2020).

a pedestrian accident in a crosswalk. In that case, the city’s witnesses testified about the process they used to determine the need for improvements to a crosswalk and intersection, explaining a delay in the installation of a traffic signal. The Ford case is discussed in detail in the case study in a later section of this digest.

D. Incorporation of Industry Guidance and Liability Neutral Language in Litigation Defense

This section examines the use of flexible and liability neutral language and the adherence to generally accepted industry guidance along with the application of engineering judgment in the defense of a dangerous condition claim. This section also includes material that describes the use of planning and prioritization of projects in the defense of claims against the agency.

When explanatory language used in agency guidance and publications is clear and concise, employees and other users of that material are able to understand and implement it. Liability neutral language is characterized by the lack of words that lead to liability, such as describing a location as a “hazard” or a practice as “risky,” instead suggesting the use of non-opinionated words and phrases such as “condition” or “factors to consider.”

The concepts of flexibility and choices are used in many of the national publications, including the Highway Safety Manual and Roadside Design Guide. The guidance typically provides the user with choices of treatments for any condition.

E. Use of Specific Directive Language Creates a Mandatory Duty on the Agency and Its Employees

It should be noted that the use of the word “shall” in guidance is considered by the courts to describe an action that is mandatory, and a specific directive to act is not discretionary for the agency or the employee to which the directive is addressed.

In Wulf v. Senst,⁶³ the court discussed South Dakota’s DOT Policy 2531, which imposed a requirement to use specified sand/salt/chemical mixtures and to continue sanding operations from 5:00 a.m. until 7:00 p.m., with only two exceptions. Those exceptions were (1) the traffic was moving safely or (2) conditions were too hazardous for continued operations. This directive was put directly at issue when companion lawsuits were filed against the agency after serious crashes occurred on the icy road after 5 a.m. but before 8 a.m.

The employees decided to stop treating the roadway after determining that continued, overnight treatment would be ineffective due to roadway temperatures and weather conditions. The trial judge concluded that the decision to stop plowing and sanding due to its ineffectiveness was a judgment call on the part of the DOT employees and granted summary judgment in favor of the DOT, reasoning that the decision was discretionary with those employees. On appeal, the trial court’s ruling was reversed due to conflicting evidence on the condition of the road at the time the decision was made to discontinue treatment.

The court discussed the language of DOT Policy 2531 and found that once the DOT made the decision to adopt that policy, the employees were obligated to follow it. Because the policy required road treatment to begin at 5:00 a.m. and the sanding did not begin until 8:00 a.m., one-half hour after the deadly accident, the court reversed the trial court decision.

The court reasoned that while the employees had the discretion to decide matters such as the number of workers to call in for a storm, how many snowplows to deploy, and where to deploy them, the workers did not have discretion to ignore the standards or policies established by the DOT.

Practice note: The case is included in this digest to illustrate the issues with the use of mandatory directive language within an agency guidance document. See also, Faber v. United States,⁶⁴ where, in finding in favor of a plaintiff, the court found that “the forest service failed to follow specifically prescribed policies which required the implementation of safety measures to warn of the specific and known safety hazard at issue.”⁶⁵

F. Compliance with Guidance

The agency can be successful in defending a claim when it can show it followed internal and generally accepted guidance if the guidance encourages the practitioner to consider a range of options. For instance, when selecting an appropriate width for a shoulder, a designer might consult the Green Book initially to gain an overview of the design process and become familiar with geometric and right-of-way concepts. After Green Book review, the designer might use other resources such as internal design guidance or the Highway Safety Manual to determine the shoulder width to be used in the geometric plans.

According to the Green Book, a designer can choose a range of shoulder widths, based on the type of road, the amount of traffic on the road, and other general characteristics. See, Gomez v. U.S. Dep’t of Agric.,⁶⁶ where the court, in its discussion of guidance published by AASHTO, stated, “these materials provide guidance, describe ‘general characteristics of shoulders . . . [and] comment on what might be considered well-designed and properly maintained shoulders’ and discuss how certain designs are advantageous. . . . they do not dictate what actions the United States must take in response to specific problems. The language in AASHTO, while perhaps helpful, is suggestive by its nature.”⁶⁷

Similarly, according to the MUTCD, a stop sign should be placed near the intersection it protects, depending on the topography of the roads and other physical characteristics of the location. In Gomez, supra, the court commented that within the MUTCD, “an employee is called upon to locate that stop sign ‘as close as practical’ to the intersection and attempt to optimize its visibility. Such language does not mandate a specific location for

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⁶³ 669 N.W.2d 135 (S.D. 2003).

⁶⁴ 56 F. 3d 1122, 1126 (9th Cir. 1995).

⁶⁵ Id. at 1126.

⁶⁶ 2013 WL 12329839, at 7 (D. N.M., not reported in F. Supp.).

⁶⁷ Id. at 7.

the stop sign without reference to the employee’s judgment in terms of other pertinent matters.”⁶⁸

In Dahl v. State,⁶⁹ plaintiffs, who were riding bicycles on a New York bicycle path next to a parkway, brought suit against the agency after being struck by a motorcycle that left the parkway. Plaintiffs alleged that a guide rail should have been installed between the bicycle path and the roadway, and that if it had been, their injuries would have been avoided. Both parties used the DOT’s internal design manual, the 1991 AASHTO Guide for the Development of Bicycle Facilities and the Roadside Design Guide to inform the court of the agency’s standard of care.

The parties focused on language in the Bicycle Design Guide, which read that “a suitable physical divider may be considered . . . both to prevent bicyclists from making unwanted movements between the path and the highway shoulder and to reinforce the concept that the bicycle path is an independent facility.” The court noted that the installation of the guide rails involved a balancing of “relative hazards” that was appropriate and cited to language in the 1989 AASHTO Roadside Design Guide which addressed the situation where “innocent bystanders” could need protection, and that a guide rail might be necessary.⁷⁰

The court also discussed the agency’s internal publication, the Highway Design Manual which stated that “[b]arriers should be considered where areas of assembly, particularly playgrounds, schools and parks, are across “T” intersections, outside of sharp curves, and at locations with a history of run-off-road accidents.”⁷¹ The court noted that the instruction applied to new construction, not existing locations, and also, that the Design Manual, like the AASHTO guidelines, did not contain mandatory direction to install a barrier but merely suggests the agency consider it in some situations.

In finding in favor of the DOT, the court further noted that installation of guide rails necessarily involved a balancing of relative hazards, and based on its review of the evidence, including the testimony and reasoning of the agency’s engineering staff, the agency had acted appropriately, the court commented that “. . . [a] statement that in certain situations, some provision might be made for something does not, in the absence of something more, create a standard that is violated, as claimants contend.”⁷²

G. Use of Engineering Judgment

A case decided by the Kentucky Board of Claims in 2010 provides an example of this approach to the defense of a dangerous condition negligence claim. In Estate of Sima Maiti v. Commonwealth Transp. Cabinet,⁷³ the board considered an allegation that if the Commonwealth had installed a barrier at a location within the median of Kentucky Highway 4, Maiti’s death could have been prevented. That crash occurred in 2007; at the time the Cabinet was evaluating the use of median guard cable on its systems. Plaintiff’s decedent claimed that the presence of cable in the median would have prevented the driver who lost control of his vehicle from crossing the median and striking Maiti.

In defense of the claim, the Cabinet presented testimony about the process it used to select the road for the pilot project, and how it selected additional locations after the pilot was successfully completed. The Cabinet explained that its guard cable pilot project had launched in 2006, and that the selection of the pilot location was based upon the characteristics of the road which included traffic counts, crash history, median slope, and median width. Once the pilot program was complete, the state evaluated other locations for suitability of median cable, considering factors such as soil content, ambient air temperature at the time of installation and median width. Some locations required substantial grading and adjustment of multiple drainage structures. Based on the characteristics of the roadways, and the budget allotted for the cable, the Cabinet selected additional locations for installation by 2007, but those locations did not include Highway 4.⁷⁴

Plaintiff’s decedent argued that the road was not reasonably safe due to the lack of cable, and that the Cabinet should have chosen Highway 4 for cable due to the high traffic count, history of crossover crashes and the relatively narrow median width. The Plaintiffs’ expert witness also testified that Highway 4 should have been a higher priority than other locations, challenging the reasonableness of the agency’s prioritization process.

Based on the testimony, the board found that while the Roadside Design Guide identified factors to consider for the construction of the barriers, the Cabinet was not required to construct the barrier and properly exercised its discretion based on budget restrictions and engineering judgment. The Board of Claims decision was later affirmed by the Fayette County Circuit Court.

Practice note: In Freeman v. Town of Cave Creek,⁷⁵ a case involving a city that uses the eminent domain process to acquire property for a trail, the court noted that the city included this language in its guidance: “the design concepts, procedures and technical data are presented only herein as guidelines and are not intended to replace sound engineering judgment and experience.” Language such as this emphasizes the role of engineering judgment combined with engineering guidance.

H. Engineering and Prioritization Processes

Evidence of compliance with internal and industry guidance can be shown using the documentation of the agency’s decision-making process. For instance, in Babbitt, supra, the Cabinet defended a claim that a particular headwall should have been protected by a guardrail, presenting evidence that its engineers conducted a research project to establish a logical approach to the identification and prioritization of Kentucky’s guardrail needs based on engineering factors and available funds, and

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⁶⁸ Id. at 8.

⁶⁹ 820 N.Y.S.2d 729 (slip op., 2006).

⁷⁰ Id. at 736.

⁷¹ Id. at 737.

⁷² Id. at 737.

⁷³ Claim No. 2007-545.

⁷⁴ Id., generally at 6–7.

⁷⁵ 2017 WL 897331 (Ariz. Ct. App. 2017).

that the roadway in question was included in that process. Because of budget limitations, the Cabinet devised a plan to prioritize existing roadside hazards that could be improved by guardrails and to erect those guardrails piecemeal as funds become available.

The Babbitt report included a point system for evaluating roadside conditions which consisted of a maximum of 100 possible points. Factors such as the number of run-off-road accidents, traffic volume, speed limit or prevailing speeds, lane and shoulder width, roadside recovery distance, embankment slope and height, and culvert presence were evaluated. Testimony by one of the researchers established that the agency had used the methodology outlined in its research project to choose those locations which were most likely to be involved in crashes and prioritized its annual guardrail improvements according to the study.

The agency presented evidence that other considerations in prioritizing guardrail needs were available funds and cost-effectiveness (i.e., how much improvement could be accomplished with the funds available). The agency research report summarized the procedures for identifying and prioritizing locations in need of guardrails as follows:

1. Development of critical numbers and rates of run-off-road accidents;
2. Preparation of a list of locations with critical rates of run-off-road accidents;
3. Development of a hazard-index point system;
4. Conducting a field survey;
5. Tabulation of hazard-index points;
6. Determination of improvement costs;
7. Determination of improvement benefits; and
8. Analysis of cost-effectiveness.⁷⁶

While the Babbitt case was ultimately reversed and remanded to the trial court for further proceedings, it is instructive in that the agency based its decision on an engineering plan developed by the agency.

I. Statutory Obligation to Prioritize Based on Funding and Engineering Judgment

Washington State has a statute that requires the use of a prioritization process as follows:⁷⁷

Declaration of purpose.

The court considered this statute in Avellaneda v. State,⁷⁸ as it examined the agency’s use of priority programming to select projects. In July 2006, the plaintiff was seriously injured when she traveled eastbound on state road (SR) 512 and was struck by a vehicle that had crossed the median. Although the Washington State Department of Transportation (WSDOT) was in the planning stages of installing a cable barrier at that location, no barrier was in place at the time of the accident.

In its defense of the claim, the agency produced evidence of a 2001 amendment to its design manual which recommended installing median barriers on medians less than 50 feet wide at that time. According to the statute (as set out at the beginning of this section),⁷⁹ WSDOT is required to “rationally allocate funding based on the relative priority of projects,” which WSDOT does by formulating a “priority array” of projects for which it seeks funding.⁸⁰

In 2001, new guidelines were distributed to the regional offices which instructed them how to calculate benefit/cost ratios to determine the priority of potential median barrier projects. The WSDOT also distributed a study to each WSDOT region that listed preliminary benefit/cost ratios for potential projects. This study calculated the benefit/cost ratio for the stretch of SR 512 where the Avellanda accident would occur as zero. The regions were also instructed to refine benefit/cost ratios based on the characteristics and construction costs of each potential project.⁸¹

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⁷⁶ Commonwealth, Transp. Cabinet v. Babbitt, 172 S.W.3d 786 (Ky. 2005), at 791.

⁷⁷ WASH. REV. CODE § 47.05.010.

⁷⁸ 273 P.3d 477 (Wash. Ct. App. 2012).

⁷⁹ WASH. REV. CODE § 47.05.010.

⁸⁰ See, generally, Avellanda at 476–77.

⁸¹ Id. at 476.

Based on the benefit/cost ratios and priorities identified in the guidance, SR 512 did not receive approval for funding until 2003, and due to the funding and budget processes in Washington State, which require approval of the legislature, funding for the cable improvement did not become available until April 2005.

The court discussed the legislative and budget process of the agency, pointing out that the project was combined with another similar project for efficiency and that the bidding process takes time and there are often delays due to public process and the need for additional design.

The Avellanda court acknowledged the difficulty of balancing priorities and budget considerations and granted the state’s motion for summary judgment.

The State of New York does not have a statute that requires the use of priority programming, but the court reached a similar result in Puliatti v. State.⁸² The crash that spurred the Puliatti suit occurred when plaintiff’s vehicle left the highway, struck a bridge rail and then dropped to the ground below. According to the evidence, the height of the bridge at the site of the accident was 27 feet, the speed limit was 50 miles per hour, and there was no history of accidents at this location. The section of highway on which the accident occurred was designed in 1957 and completed in 1959. The guardrail was standard when it was installed in 1957, but the court heard evidence that a stronger rail was available and had been available at the time of installation.

An engineer for the agency testified that although the agency was aware that a safer design was available, the State adopted a policy that newer railings would be installed on new bridges but that old rails would not be replaced until a bridge was ready to be rehabilitated. The state’s representative testified that the agency established a plan to install newer railings, taking into consideration the frequency of accidents, road curvature, speed limit, bridge height, and its budget. Bridges more than 50 feet and areas where the speed limit was 65 miles per hour were given higher priority. The witness testified that of the approximately 1,000 bridges in the state with the older type of railing, only about 10 percent of them had been replaced between 1967 and 1973 because of budget limitations.

The court found that the actions of the State were reasonable, noting that the State was on notice, not that the guardrail was unsafe but merely that there was a better rail in existence which it was attempting to install as quickly as practicable. The court affirmed the lower court’s ruling of fault for the accident.

J. Liability for Failure to Improve

Several courts have addressed the “failure to improve” negligence claim. This type of claim stems from a plaintiff’s allegation that an agency had notice of the need to improve the location but failed to improve it before an injury occurred. The party might allege that new data shows a road contains some features that may correlate with the possibility of accidents, and therefore the road, in its present condition, is not safe.

In Munro v. Ga. Dep’t of Transp.,⁸³ the court considered the cause of an intersection accident, in which the passenger in one of the vehicles died. Munro, plaintiffs’ decedent, died because of the injuries she sustained in the collision. Her parents later filed suit against the Georgia transportation agency alleging negligent design and maintenance of the intersection.

The court reviewed the claim and considered section 50-21-24 (10) of the Code of Georgia in its review. That statute, set out in full in the “Existing Laws, Administrative Rules and Immunities” section, provides a defense to the agency when it can prove that the original design of the roadway, intersection, or other road feature was in compliance with generally accepted guidance.

The Munros claimed that the state negligently failed to upgrade the design of the intersection to higher standards. The court found that a failure-to-improve claim required plaintiffs to show that the design of the intersection did not comply with the standards in effect at the time of the preparation of the design, citing Murray v. Georgia Dep’t of Transp.⁸⁴ The court in Murray noted that if there was no evidence that the initial design was not in compliance with generally accepted standards, the claim of negligence could not be supported. The court found in favor of the state.

A similar argument was made in Miller v. Bailey,⁸⁵ a case in which plaintiffs alleged that the narrow shoulders, lack of signing, and speed limit of a roadway made it dangerous. The Miller court consolidated eight claims that arose out of one automobile accident which occurred in May 1988 just outside a bar along La. Highway (Hwy.) 13. The accident happened after a fight among the bar patrons took place in the middle of the lanes of traffic of Hwy. 13. Cars that were parked on the shoulders were partially on the highway, leaving a little more than one lane’s width for motorists to pass between the parked cars. Some patrons stood along the road to watch the fight.

Miller was a motorist. Upon arriving at the scene, he parked in the middle of Hwy. 13 and exited his vehicle. About the same time, Bailey approached the bar from the southbound lane of Hwy. 13. Bailey braked, hit at least one pedestrian, and slid across the center line into the northbound lane, hitting Miller’s truck. Miller’s truck was knocked back by the impact of Bailey’s vehicle, and it, too, hit some pedestrians. Six other patrons and Miller’s passenger were also injured.

At trial, several plaintiffs were found to be negligent for standing in the highway, and others were found at fault for obstructing the highway with a vehicle, parking in the roadway, and driving while intoxicated. The Department of Public Safety was found at fault for failure to enforce the law against parking on highway shoulders in a manner which obstructs traffic and for failing to post “No Parking” signs. Finally, the trial court found the Department of Transportation and Development (DOTD) at fault for failing to provide adequate shoulders for parking, failing to post “No Parking” signs, and failing to reduce

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⁸² 91 A.D.2d 1192 (N.Y. App. Div. 1983).

⁸³ 890 S.E.2d 349 (Ga. Ct. App. 2023).

⁸⁴ 644 S.E.2d 290 (Ga. Ct. App. 2007).

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

the speed limit that, according to the trial judge, was required due to the road having narrow shoulders.

Evidence at trial was that the roadway surface was in good condition, free from ruts and potholes, and that there was no abrupt edge differential between the road and shoulder. Expert testimony was that Hwy. 13 complied with the standards in effect at the time it was built, although it was substandard by design standards in effect at the time of trial.

In finding that the trial judge erred as a matter of law in holding that the road shoulders were defective, simply because they were narrow, the Court of Appeals noted, “Hwy. 13 has narrow shoulders bordered by roadside ditches. These characteristics of Hwy. 13 are not unique in Louisiana. The failure of DOTD to reconstruct the state’s highways does not establish the existence of a hazardous defect. Under the circumstances of this case, the road shoulders did not create the hazard.”⁸⁶ The Court reversed the findings of liability against both DPS and the DOTD, and reapportioned damages among the remaining defendants.

K. Difference Between Duty to Improve and Duty to Maintain

Courts have drawn a distinction between a duty to improve and a duty to maintain. While courts recognize a duty to maintain a road when a condition is in need of remediation, courts have not recognized a duty to improve roads. The case of City & Cnty. of Denver v. Dennis⁸⁷ provides an example of this legal concept.

Heyboer was a passenger on a motorcycle driven by Veres. They were traveling eastbound on Mississippi Avenue nearing the intersection with Broadway. A westbound driver abruptly turned in front of the motorcycle, which was unable to stop or avoid it, and struck the turning car. Heyboer was ejected from the motorcycle and suffered permanent brain injuries. Plaintiffs alleged that the condition of the road created a dangerous condition which caused the accident.

The city’s pavement engineer testified that he had examined the road eight days before the crash. In his opinion, the surface was “well worn” and in “very poor condition” but there were not deep, wide potholes that could catch a tire or ruts that would redirect a car that would have warranted immediate repair. He also testified that the road did not contain features which would force a driver to make an emergency maneuver, or any other road characteristics such as a raised pavement lip that could damage a vehicle and lead to an accident. The engineer further testified that the city would immediately repair a road if there was a condition on the road—such as a pothole, sinkhole, or lip—that might cause damage to a driver’s car or force a driver to make an unnatural movement of their vehicle to avoid the obstacle. Essentially the testimony was that the road surface was “dangerous,” but not “dangerous enough” to warrant immediate repairs.⁸⁸

The trial court ruled that Denver was immune from suit and dismissed the case, finding that the condition of the road did not cause plaintiff’s injuries. On appeal, the court held that the city’s failure to restore the damaged road to the “same state of efficiency or repair as initially constructed,” constituted a dangerous condition.

The city appealed to the state supreme court, which held as follows:

The Supreme Court offered a practical reason for its ruling:

The distinction between the duty to maintain and the duty to improve is not isolated to Colorado. The distinction was noted in Estate of Morgan v. Ohio Dep’t of Transp. as follows: “The duty to maintain the highways does not encompass a duty to redesign or reconstruct the highways . . . Maintenance involves only the preservation of existing highway facilities, rather than the initiation of substantial improvements . . . accordingly, ODOT does not have a duty to upgrade highways to current design standards when acting in the course of maintenance.”⁹¹

In District of Columbia v. Pace,⁹² a passenger in a car died when the car was rear-ended and fell to the street below. The

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⁸⁶ Id. at 1184 (emphasis added).

⁸⁷ 418 P.3d 489 (Colo. 2018).

⁸⁸ Id. at 493.

⁸⁹ Id. at 495–96 (emphasis added).

⁹⁰ Id. at 496.

⁹¹ 2010 WL 4968640, at 3.

⁹² 498 A.2d 226 (D.C. 1985).

court consolidated four negligence claims against the district that arose from the accident.

Plaintiffs alleged that the district was negligent in its design of the barrier and ramp, that it negligently failed to improve them, and negligently failed to maintain them. Plaintiffs alleged that the defective condition of the barrier and ramp was known to the District Department of Transportation (DDOT) several years after the freeway was constructed and argued that DDOT should have re-designed it after getting notice of the condition. The district argued that it had acted appropriately, citing its design plans and priorities for improving highways. The trial court instructed the jury that the district had a duty to maintain the streets in a reasonably safe condition, and when determining if they had done so, the jury could consider the original design and later maintenance of the freeway. The jury found against the district and the district appealed.

The appellate court found that freeway planning and design are discretionary functions as they involve complex decisions involving the need to consider many competing factors and large expenditures of scarce resources. The court further found that agency discretion extended to decisions relating to the design of freeway improvements, noting:

The court addressed the issue of the failure to maintain claim, stating that a ministerial duty to maintain streets and highways exists, but “entails only keeping a road in such a condition as to conform with its original design” because the government “is not an insurer of the safety of travelers upon its streets and is only required to maintain . . . roadways in a reasonably safe condition.”⁹⁴

The court found no evidence that the freeway was poorly maintained and reversed the trial court’s entire decision.

Practice note: A failure to improve theory is similar to a claim that the agency had notice of a condition and failed to address it in time to prevent plaintiff’s injury. In response to such a claim, the governmental agency can argue that the road (or specific location) on the road was compliant with the applicable guidance at the time of installation, and if no geometric or other improvements were made, which would have provided an opportunity for upgrade or conformance to new guidance, the road or location remained reasonably safe.⁹⁵

L. Budget Restrictions Can Be Proof That the Agency Reasonably Addressed a Safety Need

In Martinez v. Grant Cnty. PUD,⁹⁶ a suit was brought after Martinez was electrocuted when he lifted an irrigation pipe into high voltage transmission lines while he was working at a farm. The public utility district (PUD) presented evidence in trial of the costs of improving the lines and the impact of the cost of the users of the facility and prevailed in the jury trial.

Plaintiffs argued two theories of liability: (1) the PUD negligently designed and constructed the original transmission lines in 1967; and (2) even if the transmission lines were properly built at that time, the PUD should have changed or improved the lines when it became aware that local farmers were using metal irrigation pipes within range of its high voltage transmission lines. Plaintiffs argued that the PUD could have raised or buried the transmission lines, used insulated wire, or fenced the land under the lines.⁹⁷

The PUD introduced evidence that the transmission lines “substantially exceeded” the safety standards in effect at the time of construction, and that those standards were in effect when the accident occurred. The PUD also introduced evidence that the remedial measures proposed by plaintiffs would not reduce the overall hazard of electrocution, were not technically feasible, or would substantially reduce system reliability. In addition, the PUD (over objection) presented evidence of the costs of implementing each of the plaintiffs’ proposed safety measures and the impact those increased costs would have on ratepayers.

Practice note: There are two concepts of significance in this case: practicality and budget. First, plaintiffs introduced evidence of the practicality and feasibility of improving one location along the transmission corridor—the location where the accident occurred. The utility had a similar condition at many locations and arguably would have had to improve each location to prevent this accident, or a similar one at another location, from occurring. The defendant was able to show, and the jury believed, that it was not feasible to take the actions plaintiff suggested due to budget and practical restrictions.

Many governmental agencies are prohibited from providing testimony or arguing that there would be increased costs for the taxpayers should a verdict be entered against them. However, evidence of budget restrictions and planning methodology and specific allocations of funds is frequently admitted showing the reasonableness of the agency’s actions or system of budgeting.

The court in Bailey v. Forks,⁹⁸ similarly held that the city of Forks must act “reasonably” within the framework of its laws and the economic resources available to it, noting that “. . . [i]n determining whether a municipality’s act or failure to act was unreasonable, the trier of fact can take into account the

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⁹³ Id. at 229.

⁹⁴ Id. at 230 (emphasis added) (section after ellipsis citing District of Columbia v. Williams, 46 A.2d 111, 112 (D.C. 1946)).

⁹⁵ Miller v. Bailey, 621 So. 2d 1174, 1184 (La. Ct. App. 1993), and Martinez v. Grant Cy. PUD, infra note 94, illustrate that concept. For a further discussion of cases which make this distinction between maintenance and improvements, see the survey summary, infra.

⁹⁶ 851 P.2d 1248 (Wash. 1993).

⁹⁷ Id. at 136.

⁹⁸ 737 P.2d 1257 (Wash. 1987).

municipality’s available resources and its resource allocation policy.”⁹⁹

M. Incremental Improvements

The implementation of low-cost improvements may constitute proof to the trier of fact that an agency acted reasonably in taking incremental measures to improve the facility. The Bray and McCluskey cases that follow illustrate the utility of incremental measures.

In Bray v. Cal. Dep’t of Transp.,¹⁰⁰ the court discussed the text of an expert witness affidavit. That witness stated that the agency’s guidelines suggested low-cost improvements could be used during the agency’s analysis of the potential effect of treatments such as: “barrier striping, restriping with raised profile thermoplastic traffic stripe, rumble strips on the outside paved shoulder, centerline buffer zones, rumble strips on a centerline buffer zone, surface-mounted channelizers on a centerline buffer zone, black raised pavement markers on the centerline, and other innovative devices and applications.” The court referenced Caltrans guidance that stated “. . . districts are encouraged to implement incremental improvements through low-cost roadway betterments that may reduce cross centerline accidents.”¹⁰¹

Similarly, in McCluskey v. Handorff-Sherman,¹⁰² the DOT was not allowed to present evidence of budget restrictions during a jury trial and argued on appeal that it had been unfairly prejudiced by that ruling. The appellate court found that even if it was error to refuse the state’s request to allow evidence regarding its financial limitations, plaintiff had reasonably argued that the unsafe situation of the road could have been remedied by either resurfacing the highway, building a barrier to divide the highway, or placing of signs that warned of the condition, which did not impose a great financial burden.

Practice note: These rulings, and the others discussed herein, show the necessity of having a reasonable plan to address conditions and features in need of remediation. As long as the plan of the agency, whether short or long term, is based on reasonable considerations, such as financial and practical obligations, liability can be avoided in a tort claim.

N. Duty to Warn

If a condition rises to the level of requiring maintenance, but cannot be immediately addressed, transportation agencies may have a duty to warn of the condition. This can be accomplished by a traffic or road sign, a warning signal, or a number of other lower cost traffic control devices which can be used while the agency develops a plan to address the condition.

In Hoover v. Courington,¹⁰³ a father sued on behalf of his son’s estate after his son died when he lost control of his car as he entered an area of standing water on the highway and struck another vehicle. The plaintiff alleged that Florida’s DOT was negligent in failing to the flooding hazard, and in failing to warn of the potential for flooding. The court granted the DOT’s motion for summary judgment.

In reversing and remanding the case back to the trial court, the court of appeals, following direction by the state supreme court, stated that “. . . once the government has knowledge of a hidden danger on one of its roadways the government is under a duty to either warn motorists of the danger or to make safe the dangerous condition and that the failure to do so constitutes actionable negligence.”¹⁰⁴

Similarly, in Mixon v. Houston Cnty.,¹⁰⁵ two people were injured when they failed to negotiate a curve and ran off a county road. The families sued the county, alleging that a curve warning sign should have been in place. The evidence indicated the curve was severe, and the vehicle was traveling about 45 miles per hour (mph) at the time the driver lost control of it. There was conflicting testimony about whether the curve warranted a sign according to county guidance.

In reversing the summary judgment, the court concluded that questions of fact existed as to whether the curve at this location was defective and if it was, whether the county had notice of that fact. The court further noted that a county is vested with discretion in determining where it will place traffic signs and it is not under a duty “to post traffic signs at every turn or intersection,” but held that a county has no discretion to ignore a dangerous defect in one of its roads once it has notice of that dangerous defect.¹⁰⁶

Practice note: The duty to warn can be satisfied if the governmental agency uses incremental improvements as discussed above. The Mixon case provides an example of how a failure to follow agency guidance coupled with lack of clarity in the guidance can create liability for the governmental agency. Consistence between internal guidance and field practice can minimize agency risk. For more cases on the duty to warn, see survey summary section, infra.

O. 23 U.S.C. § 407 Protection of Data Under Federal Law

States are obligated by federal law to collect data relating to crash locations and circumstances and to provide that information to the federal government in an effort to improve the safety of the transportation system. Public records laws in many states require the release of this data to the media and those who make records requests. Once gathered and reviewed, that data may be disseminated by and within the transportation agency in many ways including social media, engineering and traffic reports, internal and external correspondence, and in planning documents.

23 U.S.C. § 407 (formerly 409) states that safety studies and data created or compiled for federally funded safety projects

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⁹⁹ Id. at 1271.

¹⁰⁰ 2005 WL 555146 (Cal. Ct. App., 1st Dist, unreported opinion March 10, 2005).

¹⁰¹ Id. at 9.

¹⁰² 882 P.2d 157 (Wash. 1994).

¹⁰³ 557 So. 2d 923 (Fla. Dist. Ct. App. 1990).

¹⁰⁴ Id. at 924 (emphasis added).

¹⁰⁵ 598 So. 2d 1317 (Ala. 1992).

¹⁰⁶ Id. at 1319.

is protected from discovery and litigation. The law created a privilege that has been used by states and municipalities to successfully keep data collected for the purposes outlined in the law from use during the litigation process. Section 407 provides:

The United States Supreme Court upheld the constitutionality of 23 U.S.C. § 409 in Pierce Cnty. v. Guillen.¹⁰⁸ In Pierce Cnty., a Washington State case, the Court reviewed the background and purpose of the statute, and explained that beginning in the late 1960s, Congress began to fund road improvement projects for state and local agencies. Federal programs that assisted the states in identifying, evaluating, and funding road improvement projects were implemented at that time. The law was enacted to encourage the collection and study of data and provide a basis to protect the data from use in litigation against the governmental agency that collected it.

Since the Pierce Cnty. decision, the courts have continued to interpret the statutory language, focusing on the applicability of it to specific fact patterns. The cases discussed herein focus on recent interpretations, relating to waiver of the privilege, the format of the data collected, and methods of protecting it.

P. Waiver

In Garcia v. N.M. Dep’t of Transp.,¹⁰⁹ the court examined 23 U.S.C. § 407 in the context of plaintiff’s allegation that the privilege was waived during litigation and that materials which were claimed to be protected under the law could be used as evidence. The DOT had prepared a plan to assist it in prioritizing construction improvements along NM 599. All or parts of the plan had been made available to the public during the public input phase of the project and produced during discovery of the claim. According to the court, the plan:

The plan specifically addressed the location where Garcia’s accident had occurred, stating that it would be improved as a result of the project.

Plaintiff argued that the 23 U.S.C. § 407 privilege was waived when the DOT produced the plan in discovery without claiming it was privileged. The DOT argued that since the plan was available to the public, it did not have to protect it during discovery, but that nevertheless it was protected from admission in evidence during trial. The court agreed with the DOT, noting that the data “shall not be subject to discovery or admitted in evidence” and finding that the privilege was not lost because the plan was produced during discovery. The court also noted that 23 U.S.C. § 407 does not include a confidentiality requirement.

Similar conclusions were reached by the courts in Walden v. Dep’t of Transp.,¹¹¹ Vega v. State,¹¹² and Zimmerman v. Norfolk S. Corp.¹¹³

Q. Application for Highway Safety Funds

In Ford v. City of Los Angeles,¹¹⁴ federal funds had been used to install a traffic signal that was placed in service shortly after plaintiff Ford, a pedestrian, was injured. Ford was struck by a vehicle as she attempted to cross a city street. The document at issue in this case was a signal funding application, which included a statement that the location was “dangerous.” The application for funding was not allowed in evidence during the jury trial and that ruling was upheld on appeal. This case is discussed in more detail in the case study below but is mentioned here as an example of the use of the privilege.

R. Writ of Mandamus Requested to Protect Data

The court examined a request for a writ filed by the Texas Department of Transportation (TxDOT) in review of the claim of In re Texas Dep’t of Transp.¹¹⁵ In that case, plaintiff’s decedent, who had died as the result in a motorcycle crash which was allegedly related to the slick surface of a highway. The trial court granted the estate’s motion to compel TxDOT to produce its Pavement Management Information System (PMIS) data, including skid testing data. Plaintiffs alleged that the fatal crash was caused by the “polishing” of the road. “Polishing” is a defect that is caused by heavy traffic volume which can result in a decrease in road friction, making a road slippery. The court outlined the facts of the case as follows:

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¹⁰⁷ 23 U.S.C. § 407 (emphasis added).

¹⁰⁸ 123 S. Ct. 720 (2003).

¹⁰⁹ 535 P.3d 728 (N.M. 2023).

¹¹⁰ Id. at 730.

¹¹¹ 27 P. 3d. 297 (Alaska 2001).

¹¹² 804 N.Y.S 229 (N.Y. Ct. Cl. 2005).

¹¹³ 706 F. 3d. 170 (3rd Cir. 2013).

¹¹⁴ 47 Cal. App. 5th 277 (Cal. Ct. App. 2nd Dist. 2020).

¹¹⁵ 639 S.W. 3d 289 (Tex. Ct. App. 2021).

TxDOT supported its response to the motion to compel with numerous documents that included the sworn statement of the director of TxDOT’s Pavement Asset Management Section, Jenny Li, a licensed professional engineer. In her affidavit, Li explained that to “qualify for federal funds and to get federal approval for highway safety improvement projects, TxDOT is required to, and has developed, a comprehensive HSIP which is overseen by TxDOT’s Traffic Safety Division.” Li further stated that:

In response, plaintiff’s decedent argued that pavement friction information was not protected because the data wasn’t collected for a specific project. In dismissing that argument, the court explained that the statute had two parts, and the purpose Li identified, which was identifying, evaluating, or planning for safety enhancement of specific sites, met the intent of federal law. The court, in granting the writ, concluded that TxDOT did not have an adequate remedy at law should the information be used in trial.

S. Privilege as Both “a Shield and a Sword”

An evidentiary privilege cannot be used in a manner that provides an unfair advantage to the party using it. For instance, a party cannot argue that data relating to the volume of accidents is protected and then use the data relating to the accident volume to make the point that millions of cars use that location without incident on an annual basis. Many courts refer to this as the practice of using the privilege as both a shield and a sword. In practical terms, this means that a party to litigation may not abuse the privilege by asserting claims the opposing party could not adequately dispute unless it had access to the privileged materials.¹¹⁸

Practice notes:

• Many state agencies include a watermark that reads “data herein is protected by 23 U.S.C. § 407” on reports and in databases that contain this data or references to the data. They also restrict access to the data in order to protect it as much as possible from use in litigation.
• Some states plan to use the data they collect in the defense of claims and as a basis to inform the public about the planning decisions of the agency. Frequently those agencies will incorporate liability neutral language in their documents, reports and widely disseminated materials.
• Use of cumulative collision data can support the defense of a claim—it may show that the agency’s actions were reasonable. It will also likely show there was a known condition that had to be addressed or corrected, which is the essence of notice. States will generally choose to embrace the data and explain what it says and how it was used, or protect it as allowed by federal law.
• 23 U.S.C. § 407 can be used by the agency to shield information from disclosure in litigation. However, that decision must be carefully made, as the information may be both helpful and negative at the same time. As it prepares the defense of the claim, the agency may choose to be transparent with all information and simply present its decision-making process and the data supporting it. This is a fact-intensive decision to be made when the agency is in possession of all the information necessary to evaluate the crash and the case.

T. Section Wrap Up

At the beginning of this section, the concept of using a theme in a trial was discussed. Those themes are reproduced below, and some detail to assist in further developing the themes was added. The section also describes multiple components of a “dangerous condition” case such as notice, foreseeability, generally accepted guidance and the use of documentation. It summarizes defenses such as prioritization of projects based on funding, engineering judgment, the use of agency guidance and tort basics such as notice and reasonableness. Finally, it includes recent cases

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¹¹⁶ Id. at 291.

¹¹⁷ Id. at 291.

¹¹⁸ See, for example, Ghio v. Liberty Insurers Underwriters Inc., 276 A.3d 984 (Conn. App. Ct. 2022).