Tort liability: definition and procedures according to AASHTO Green Book, federal highway and state regulations. Impact of tort liability procedures on innovation.

TORT LIABILITY AS IT RELATES TO THE GREEN BOOK

Tort claims against highway agencies have steadily risen since the early 1970s, when the AASHTO first began surveying States for information about tort liability claims. This is partly due to the trend of no longer allowing design immunity (sovereign immunity) for highway agencies in almost all States. There is evidence to believe that the majority of these cases involve allegations of faulty traffic control devices or maintenance. Even though the number of cases alleging design defects is relatively small in comparison, tort liability is still a real concern for highway engineers. Tort is a legal term that refers to a civil wrong that has been committed, in this case by highway agencies. Negligence is a term used to refer to a classification of tort in which the injury is not intentional, but where there was failure to use due care in the treatment of others compared to what a "reasonable man" would have done. Liability is the responsibility to make restitution to the damaged party through an action or payment determined by the court. Finally, States protected with sovereign immunity for design cannot be sued for decisions regarding design. (Sovereign immunity is now only in existence in a handful of States.) The AASHTO Green Book, other State-adopted highway standards, Federal and State regulations and guidelines, and research publications issued by the Transportation Research Board are often used in tort cases to educate the jury about the standard level of practice for design. In addition, expert witnesses are used, who in turn rely on written text to explain the accepted standard practices for design to the jury. This does not mean, however, that adherence to accepted standard practices, such as the AASHTO Green Book guidelines, automatically establishes that reasonable care was exercised. Conversely, deviation from the guidelines, through the use of a design exception, does not automatically establish negligence.

The best defense for a design engineer is to present persuasive evidence that the guidelines were not applicable to the circumstances of the project or that the guidelines could not be reasonably met. (It should be noted that an economic defense is not the most effective.) It is highly recommended that designers document their rationales for decisions. If the justification documented by a designer completely describes the physical and environmental factors that make the exception or any design necessary, it is likely that this will be legally persuasive that the correct procedures were followed and ultimately the appropriate decision was made. In addition, it is helpful to have statements by other design experts who concur with the decision in the documentation. As a result of concerns about litigation, designers may be tempted to be very conservative in their approaches to highway design and avoid innovative and creative approaches to design problems. While it is important for design engineers to do their jobs as thoroughly and carefully as possible, avoiding unique solutions is not the answer. This may undermine design practice and limit growth in the engineering profession. Designers need to remember that their skills, experience, and judgment are still valuable tools that should be applied to solving design problems and that, with reliance on complete and sound documentation, tort liability concerns need not be an impediment to achieving good road design.