Compromising safety, failure to use professional judgment, and similar issues that carry professional liability and that could encourage lawsuits have been constant concerns and companions to all discussions of Context Sensitive Solutions. Yet liability appears to be a manageable issue. Most legal experts agree that context-sensitive solutions will not cause the engineer problems as long as they are well reasoned and comprehensively documented.
from
NCHRP Report 480: A Guide to Best Practices for Achieving Context Sensitive Solutions
Excerpt
Tort Liability Tort liability: definition and procedures according to AASHTO Green Book, federal highway and state regulations.
Impact of tort liability procedures on innovation.
more...
from
Flexibility in Highway Design
Article / Paper / Report
Context-Sensitive Design: Will the Vision Overcome Liability Concerns?
[CSS/CSD] "is a process that results in a transportation project reflecting community consensus on purpose and need, with project features addressing equally safety, mobility, and preservation of scenic, aesthetic, historic, and environmental resources. It involves policy judgments in the balancing of competing interests. "There has continually surfaced a nagging concern, even fear, that increased exposure to tort liability would result should design standards or guidelines be "flexed" because it would mean compromising safety. This lecture addresses this liability concern together with the challenge of balancing safety with other considerations in the design process."
"Engineers need the ability to explain their choices... and CSD and Flexibility provide them the tools to say: 'We're not blindly following generally accepted Green Book design criteria. We have considered those criteria and all these other factors.' If you're thinking about the qualitative, the quantitative and thinking about the context, then you've considered much more than you would by blindly sticking to Green Book guidelines."
"If a highway department documents that it considered AASHTO guidelines and made a considered decision to depart from them in certain ways out of concern for pedestrian safety or other community needs, a potential plaintiff is unlikely to take a case very far."
"Congress has established statutory requirements and public policy clearly demonstrating that safety, while a primary consideration in design, is not to be a paramount consideration; that safety...should be balanced with mobility, protection and enhancement of the natural environment, with preservation of community values... The CSD/CSS vision will overcome liability concerns, both in the short and in the long term."
