The National Academies

NCHRP 20-06/Topic 17-02 [Final]

Tort Liability Defense Practices for Design Flexibility
[ NCHRP 20-06 (Legal Problems Arising out of Highway Programs) ]

  Project Data
Funds: $44,000
Research Agency: Terri Parker, Esq.
Principal Investigator: James B. McDaniel
Effective Date: 8/1/2010
Completion Date: 10/31/2011

NCHRP Synthesis 316 records that based on a survey of 45 state transportation agencies and the District of Columbia, approximately 20% (9 of 46) have experienced an increase in the number of design exceptions prepared in their agency since “the advent of Context-Sensitive Design or Design Flexibility”. A synthesis focused on tort liability defense practices and cases involving the exercise of discretion in the design will provide a framework for determining successful strategies for defending decisions made following the principles of Contest Sensitive Solutions (CSS). The concept of discretion as a defense to government tort liability is often described by different terms such as governmental immunity, official immunity, design immunity, or policy immunity. This existing law is relevant to analysis of tort legal defenses available to shelter the decisions inherent in CSS. Many Departments of Transportation have adopted CSS principles or related concepts such as Practical Design to encourage flexibility in design decision-making. Processes for documenting design decisions, articulating clearly the various factors considered in making a decision with a focus on decisions both that involve design exceptions would be of great help to designers and managers responsible for such decisions and their attorneys.

This synthesis should document cases where transportation agencies have defended themselves against lawsuits involving design decisions based on maintaining safety in balance with other factors, such as cost considerations and maintaining scenic, aesthetic, historic, and environmental and community resources/values. The synthesis should provide examples of documentation that make clear the public policy objectives that underlie the chosen design decision in addition to addressing maintaining an acceptable level of safety.

STATUS:This project has been completed and published as NCHRP Legal Research Digest No. 57 which is available for download on the TRB website.

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