An overriding concern of design staff is not necessarily the avoidance of tort claims, but the defense of a good and appropriate decision, should a claim be made.
Best Practices for Risk Management (2)
The minimizing of tort claims and the support of good decisions, should be a
concern to all stakeholders. It is in everyone's interest to avoid situations
that increase the substantive safety risk to motorists, pedestrians, or others.
Tort claims paid by an agency represent taxpayer funds that cannot be used for
other public purposes.
Discussions with risk managers for various DOTs, and a review of the literature
on tort laws and liability provide a consistent message. Full application of
the CSD/CSS design processes discussed here supports risk management, as demonstrated
in the following:
Consider Multiple Alternatives
Thorough consideration of multiple alternatives, including explanation for
why a full standard design may not be possible or desirable, and what alternatives
are, represents good risk management practices. This practice highlights the
concept of design as representing discretionary choices.
Evaluate and Document Design Decisions
Design reports should document the expected operational and safety performance
of the proposal. Stakeholder engagement, including developing, evaluating, and
discussing different alternatives requires documentation. All such documentation
can and should be readily available to place in project files for later reference.
Special care should be taken where a new or creative concept is proposed such
as a roundabout or traffic calming feature. If a design exception is needed,
documentation should be complete, including a full description of the need for
the exception based on adverse effects on community values, the environment,
Maintain Control Over Design Decision Making
The owning agency must stay in control of decisions regarding basic design
features or elements. Active stakeholder involvement and input does not translate
to abrogation of the responsibility of the agency to make fundamental design
Demonstrate a Commitment to Mitigate Safety Concerns
Where a design exception or unusual solution is proposed, plan completion should
focus on mitigation. Decisions to maintain trees along the roadside, for example,
may be accompanied by special efforts to delineate the edgeline and/or trees,
implement shoulder rumble strips, or provide guardrail or other roadside barriers.
Monitor Design Exceptions to Improve Decision Making
A few states make a special effort to keep a record of design exceptions by
location, committing to review their safety performance over time. The intent
is not to second guess a decision, but to build on and improve a knowledge base
for future decisions regarding design exceptions.
Despite the best efforts of designers, crashes occur and tort claims are filed.
An overriding concern of design agency staff (designers, quality managers, decision
makers, and risk managers) is not necessarily the avoidance of such claims,
but rather the defense of a good and appropriate decision should a claim be
made. Some risk managers try to encourage their agency's staff to do the right
thing, i.e., to perform their job in the best professional manner and not worry
about the agency being sued. Following the best practices outlined above is
all that can and should be expected of professional staff of an agency.