Legal Problems Arising out of Highway Programs. Topic 27-05. Addressing Liability Issues of Proactive Safety Improvements
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 Transportation Research Board (TRB) distribution network. 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. 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.
- Record URL:
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Supplemental Notes:
- Contract to a Performing Organization has not yet been awarded.
Language
- English
Project
- Status: Active
- Funding: $150000
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Contract Numbers:
Project 20-06, Topic 27-05
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Sponsor Organizations:
National Cooperative Highway Research Program
Transportation Research Board
500 Fifth Street, NW
Washington, DC United States 20001American Association of State Highway and Transportation Officials (AASHTO)
444 North Capitol Street, NW
Washington, DC United States 20001Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC United States 20590 -
Project Managers:
Chisholm-Smith, Gwen
- Start Date: 20240701
- Expected Completion Date: 20250701
- Actual Completion Date: 0
Subject/Index Terms
- TRT Terms: Financing; Highway design; Highway safety; Legal factors; Regulation; Tort liability; Transportation departments
- Subject Areas: Administration and Management; Design; Highways; Law; Safety and Human Factors;
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