Legal Problems Arising out of Highway Programs. Topic 27-05. Liability Arising from Proactive Safety Improvements

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 (1) - 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. (2) - 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. (3) - 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? (4) - 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. (5) - 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 (1) - 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. (2) - Address the defense strategy in those cases along with the outcome of the litigation. (3) - 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. (4) - 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.


  • English


  • Status: Proposed
  • Funding: $150000
  • Contract Numbers:

    Project 20-06, Topic 27-05

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Project Managers:

    Chisholm-Smith, Gwen

  • Start Date: 20230912
  • Expected Completion Date: 0
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01887175
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic 27-05
  • Files: TRB, RIP
  • Created Date: Jul 11 2023 10:01AM