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
Traditional methods to identify and prioritize locations for traffic safety improvements are reactive. These methods identify locations with high collision rates and features at these locations causing the collisions. This allows transportation agencies to target areas for which funding can be sought to make safety improvements based primarily on past collision history.
An alternative method to improve traffic safety is to use cumulative collision data to identify the types of locations and road features shown by cumulative collision data to be highly correlated with collision frequency. In new construction, the cumulative collision data can be used to select designs and road features having lower collision probabilities. For existing roads, the proactive data can be used to analyze roads to identify collision-prone locations and features for remediation. The proactive approach allows transportation agencies to identify problems and possible improvements before a history of collisions and injuries accrues.
The tort liability problem arising from adopting proactive safety analysis of roads is similar to the concerns that arose with the publication of the AASHTO Highway Safety Manual (HSM). The HSM also used amalgamated collision data to predict which road design elements correlate with higher collision experience. The concern was that plaintiffs would use the HSM to support claims current roads are not “reasonably safe,” leading to enormous new liability for public roads.
HSM authors ultimately included language in parts of the manual that tried to limit misuse of the HSM to establish liability for roads constructed before the manual was available to guide their design. Something similar might be needed for new publications espousing more advanced proactive road safety analysis. This problem is not solved by 23 USC 407. Section 407 prevents the use of road safety data and reports in accident litigation if these materials are compiled or created to analyze improvements to roads eligible for federal improvement funds. Section 407 does not cover manuals and guidelines developed to accomplish the same purpose.
Research is needed to analyze the reasons for and extent of the challenge tort liability could create for transportation agencies adopting a proactive safety approach to design new roads and improve existing roads.
OBJECTIVE
The objective of this research is to address the issues facing transportation agencies adopting a proactive safety approach to the design of new roads and the improvement of the existing ones.
Among issues that should be researched are
- Whether states using a proactive safety approach to road design and for safety improvements to existing roads have legal defenses to liability based on any sovereign, legislative, or discretionary function immunities or based on other legal defenses applied to claims that transportation agencies have failed to prioritize or fund safety improvements to infrastructure.
- Whether the current federal statute (29 USC 409, which provides that evidence of safety studies and data created or compiled for roads eligible for federal funding cannot be used in any action for damages) would apply to prevent the use of proactive road safety manuals and methodology in tort actions against transportation agencies.
- Whether language could be put in any proactive safety manual to limit or eliminate the ability to use such a manual to claim transportation agency negligence for failure to use the concepts in the manual for the design of new roads or improvement to existing roads. For instance, could a proactive safety manual prohibit its use against transportation agencies by providing that it is a misuse of the manual to use it to claim a road is not reasonably safe?
- Whether a proactive safety manual could limit its use in tort litigation by providing the manual does not mandate any safety improvements that have not been approved and funded through the normal transportation processes for road improvements.
- Whether transportation agencies desiring to use a proactive safety manual and approaches can limit their use against the agencies in tort litigation by adopting administrative rules or policies specifying the agencies’ adoption and use of a proactive safety manual or approaches does not override the normal policies and processes used by the agencies to prioritize and fund improvements to roads.
This research will seek to
- Identify any cases in which transportation agencies have been sued in tort using a liability theory premised on an assertion liability is shown by an agency’s failure to improve roads identified for possible safety improvements by a proactive safety analysis.
- Address the defense strategy in those cases along with the outcome of the litigation.
- Determine if any transportation agencies are already employing strategies to ameliorate the negative effect of liability concerns on proactive safety approaches and describe those strategies.
- Identify cases involving tort claims for failure to apply proactive safety approaches and identify strategies to counteract the negative effects of tort liability.
This research should include a survey of state transportation agencies to determine which agencies might have information about these subjects. Once such states are identified, the researchers should follow up with those states to obtain details about the tort cases and counteracting strategies.
After outlining reasons for the apparent problem and the extent of the problem, research should analyze potential solutions to the negative consequences tort liability presents for transportation agencies desiring to adopt proactive safety approaches.
RESEARCH IMPLEMENTATION
The 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 a proposed survey if one is to be used. The report outline should contain sufficient detail to show the NCHRP project panels what a 75-100-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, case analysis, and statutory and 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 is in progress.
