PREAMBLE
The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal reports sponsored by this project are published in NCHRP’s Legal Research Digest (LRD) series. Publications are available to some libraries and approximately 4,000 transportation lawyers and officials through the TRB distribution network.
BACKGROUND
Transportation agencies install a large amount of roadside safety hardware purchased from manufacturers. Included in this hardware are various kinds of guiderail and other barriers, impact attenuators, and breakaway light poles and sign supports.
NCHRP Report 350: Recommended Procedures for the Safety Performance Evaluation of Highway Features, includes guidelines for crash testing roadside safety hardware and criteria to assess the test results. After the publication of NCHRP Report 350, the Federal Highway Administration (FHWA) required all road safety hardware utilized on a federal aid eligible roadway to be tested using testing criteria reported in NCHRP Report 350. The FHWA issued certification letters for all devices whose testing satisfied the NCHRP protocols.
In 2009, the American Association of State Highway and Transportation Officials (AASHTO) published the Manual for Assessing Safety Hardware (MASH) for use in testing safety hardware. FHWA adopted MASH in 2016, requiring all newly installed roadside safety hardware to be tested and certified under MASH. Prior hardware tested under NCHRP Report 350 can remain in place until replacement due to damage or highway rebuild when MASH-certified hardware must be installed. The federal testing and certification requirements do not apply on roads funded only by non-federal money. Each state must determine what road safety hardware is satisfactory for non-federal aid roads.
In most, if not all, jurisdictions, transportation agencies have potential liability for claims of alleged negligence in the design, construction, maintenance, and operation of state and local roads. These claims can include allegations that roadside safety hardware was improperly designed, installed, or maintained.
The complex processes for testing and approval of roadside safety hardware add an extra level of complexity to evaluating potential liability and defenses to liability in the event of tort claims relating to the safety hardware.
An analysis of liabilities on claims alleging deficient or defective roadway safety hardware, and defenses to such actions, would be of value to transportation agencies and the attorneys that defend them.
OBJECTIVE
The objective of this research is to produce a report that includes a description of the liability that applies to parties involved in the design, manufacture, testing, certification, and installation of roadside safety hardware. These parties include state and local transportation agencies, the relevant federal highway entity, installation contractors, testing facilities, designers, and manufacturers.
Among the issues to be researched are:
- In an injury claim allegedly caused by deficient roadside safety hardware, what kind of claims have been made against each party involved in the design, manufacture, testing, certification, selection, installation, and maintenance of the roadside safety hardware?
- In a claim for injury attributable to roadside safety hardware, what legal or factual defenses would be used by each party responsible for designing, manufacturing, testing, approving, installing, or maintaining the safety hardware?
- If a state agency tests roadside safety hardware, under what circumstances, if any, can a state have liability for alleged errors or deficiencies in its testing?
- Are state transportation agencies responsible for evaluating the performance of roadside safety hardware tested under MASH guidelines and certified by FHWA?
- Does a state agency have possible liability if it does not inspect a device according to the manufacturer's specifications and there is a claim an inspection would have uncovered and caused repair of a deficiency allegedly causing an injury?
RESEARCH IMPLEMENTATION
This research will be conducted in four tasks under a firm fixed-price agreement. The tasks will be as follows:
Task 1. Develop a research plan and detailed report outline. The consultant will (1) prepare a plan to conduct research and collect relevant material, and (2) propose a detailed report outline. The research plan should be 8-12 pages and include the proposed survey if one is to be used. The report outline should contain sufficient detail to show the NCHRP project panels what a 75-to-100-page report will contain and include the estimated pagination for each proposed section and subsection. This material will be submitted to NCHRP for approval.
Task 2. Conduct research. After approval of the work plan, the consultant should conduct additional research and case and statutory/regulatory analysis.
Task 3. Submit draft report in accordance with the approved work plan (including modifications required by NCHRP).
Task 4. Submit final report. The consultant should anticipate making two revisions to the report before it is finalized. One revision may be required after review by NCHRP staff and members of a subcommittee. Final revisions may be necessary after the full committee has reviewed the report.
PAYMENT SCHEDULE
25% paid upon submission and approval of the Task 1 report.
50% paid upon submission and approval of the Task 3 report.
25% paid upon submission and approval of the final report (following revisions as required by NCHRP).
STATUS: Research in progress.
