Effect of MUTCD on Tort Liability of Government Transportation Agencies (2014)

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4 judgment in applying the MUTCD, and the Man- ual’s mandatory and nonmandatory provisions. Section III also discusses state statutes that may affect, limit, or even immunize transportation de- partments for their decisions regarding their use or omission of traffic control devices. Section IV reviews a sampling of cases and out- comes for approximately the past 3 years in which opinions are available on tort claims arising un- der the 2009 MUTCD and prior editions of the Manual.8 For cases since the effective date of the 2009 MUTCD, the digest relies primarily on in- formation provided by state departments of transportation (DOTs) in response to a survey of the departments conducted for the digest. Section V discusses tort liability of transporta- tion departments in relation to the MUTCD, in- cluding the effect of the MUTCD on the liability of transportation departments under state tort claims acts, defenses asserted by transportation departments in MUTCD cases, and the duties and standard of care applicable to departmental deci- sions on the use of traffic control devices subject to the Manual. Section V also examines whether the existence of a dangerous highway condition implicating a traffic control device affects trans- portation departments’ tort liability for alleged infractions of the MUTCD. Sections VI and VII discuss immunities that transportation departments may have when ap- plying the MUTCD. Section VI discusses the dis- cretionary function exemption appearing in many state tort claims acts, whether departments may prioritize whether and when to install or provide traffic control devices, and whether there must be evidence that a department actually exercised its discretion in making a decision concerning a traf- fic control device to qualify for immunity. Section VI also reviews the policies of transportation de- partments on making and retaining records of decisions on the use of traffic control devices. Sec- tion VII discusses whether departments have im- munity for an alleged negligent plan or design of a highway involving the use of traffic control de- vices; whether they may claim immunity for neg- ligent maintenance of traffic control devices; and whether they have immunity from tort claims re- sulting from their decisions specifically in regard to the use of signs, signals, pavement markings, and other traffic control devices. Twenty-one state transportation departments responded to a survey that was conducted to ob- tain information for the digest. The results of the survey were not intended to serve as the basis for an empirical study or analysis. Rather, the survey sought to gather information from transportation departments on the 2009 MUTCD and related issues, including information on tort claims 8 See discussion in §§ IV.A and B of the digest. against the departments arising under the latest edition of the Manual. The transportation de- partments’ responses to the survey are discussed throughout the digest and are summarized in Ap- pendix B. The digest includes two tables, the first of which is based on a sampling of cases from the period 2010–2013 arising under the 2003 MUTCD and prior editions of the Manual. The second table is based on a compilation of MUTCD cases from the period 2005–2013 that was provided by the New York State Department of Transportation (NYSDOT) in response to the survey. II. THE 2009 REVISION OF THE MUTCD A. The MUTCD as the National Standard FHWA is authorized to prescribe standards for traffic control devices on all roads open to public travel pursuant to 23 United States Code (U.S.C.) §§ 109(d), 114(a), 217, 315, and 402(a). Conse- quently, the 2009 MUTCD promulgated by FHWA “is the national standard for all traffic control de- vices installed on any street, highway, or bicycle trail open to public travel.”9 In the MUTCD, the phrase “open to public travel” “includes toll roads and roads within shopping centers, airports, sports arenas, and other similar business and/or recreation facilities that are privately owned but where the public is allowed to travel without ac- cess restrictions.”10 To remain eligible for federal highway and highway safety program funds, a state must adopt the national MUTCD as a state regulation, adopt a state MUTCD that is approved by the U.S. Sec- retary of Transportation as being in “substantial conformance”11 with the national MUTCD, or adopt the national MUTCD in conjunction with a state supplement.12 B. Overview of the 2009 MUTCD The 2009 MUTCD is comprised of an introduc- tion, nine parts, and two appendices. There are chapters within each part and sections within each chapter. The first chapter in each part is en- titled General and provides an overview and rele- vant information on the contents of each part, 9 23 C.F.R. § 655.603(a). 10 23 C.F.R. pt. 655 subpt. F. See also Oliver v. Ralphs Grocery Co., 654 F.3d 903, 909–10 (9th Cir. 2011). 11 For the meaning of “substantial conformance,” see Federal Highway Administration, Traffic Control De- vices on Federal-Aid and Other Streets and Highways; Standards, Final Rule, 71 Fed. Reg. 75,111 (Dec. 14, 2006). 12 See 23 U.S.C. §§ 109(d), 402(c); 23 C.F.R. § 655.603(b)(3).

5 such as its purpose, definitions associated with the part, and the part’s application to traffic con- trol devices. The chapters that follow a general chapter address specific aspects of the subject of each part of the Manual. The nine parts of the MUTCD are Part 1, Gen- eral; Part 2, Signs; Part 3, Markings; Part 4, Highway Traffic Signals; Part 5, Traffic Control Devices for Low-Volume Roads; Part 6, Tempo- rary Traffic Control; Part 7, Traffic Control for School Areas; Part 8, Traffic Control for Railroad and Light Rail Transit Grade Crossings; and Part 9, Traffic Control for Bicycle Facilities.13 For ex- ample, Part 2 of the MUTCD regulates everything concerning signs, such as when they are used, how they are used, how they must appear, and the specific wording that must be used. As discussed in Section II.C below, of particular importance to the digest and the tort liability of transportation departments are the MUTCD’s statements that are identified in the Manual as Standards, Guidance, Options, and Support. C. MUTCD’s Standards, Guidance, Options, and Support As explained by an Ohio court, the MUTCD is “organized to differentiate between ‘Standards that must be satisfied…Guidances, that should be followed…and Options that may be applicable for the particular circumstances of a situation.’”14 Only those provisions that are designated as Standards are mandatory.15 In the MUTCD a statement that is a Standard signifies “required, mandatory, or specifically pro- hibitive practice regarding a traffic control de- vice.”16 Standards typically use the verb shall and never use the terms should or may.17 Standards are “sometimes modified by Options.”18 A guidance statement in the Manual is a “statement of recommended, but not mandatory, practice in typical situations, with deviations al- lowed if engineering judgment or engineering study indicates the deviation to be appropriate.”19 Guidance statements typically use the verb should and never use the terms shall or may.20 13 The first appendix is entitled, Congressional Legis- lation, and the second appendix is entitled, Metric Con- versions. 14 Yonkings v. Piwinski, 2011-Ohio-6232, at 23 (2011). 15 Am. Family Mutual Ins. Co. v. Outagamie County, 2012 WI App 60 at 19, 341 Wis. 2d 413, 426, 816 N.W.2d 340, 347 (2012) (citation omitted). 16 2009 MUTCD, supra note 1, at 10. 17 Id. 18 Id. 19 Id. 20 Id. Guidance statements are also sometimes modified by Options.21 Although Standards are mandatory, guidance statements are not mandatory, as held also in an Ohio case. In Walters v. Columbus,22 the court considered a guidance statement on “STOP Sign Application” in Section 2B.05 of the Ohio MUTCD. The court ruled that the phrase in the section—“should be used if engineering judgment indicates that one or more of the listed conditions exists”—means that the placement of the stop sign at issue was discretionary and not manda- tory.23 As stated, standards and guidance statements may be modified by Options.24 An Option is a “statement of practice that is a permissive condi- tion and carries no requirement or recommenda- tion.”25 Options typically use the verb may and never use the terms shall or should.26 The final type of statements found in the MUTCD are Support statements, which are “in- formational” and do “not convey any degree of mandate, recommendation, authorization, prohi- bition, or enforceable condition.”27 Support state- ments do not use the verbs shall, should, or may.28 D. Discussion of Some Specific Changes in the 2009 MUTCD 1. Provisions of the MUTCD that Were Elevated to Standards On December 16, 2009, FHWA published the revised MUTCD in the Federal Register.29 Some statements in the 2003 MUTCD were recatego- rized as Standards in the 2009 edition. For exam- ple, in Part 1 containing general provisions appli- cable to the MUTCD in Section 1A.08 regarding the Authority for Placement of Traffic Control Devices, FHWA elevated the following provision from a guidance statement to a Standard: “Signs and other devices that do not have any traffic con- trol purpose that are placed within the highway 21 Id. 22 2008 Ohio 4258 (2008). 23 Id. at 23–24. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29 Federal Highway Administration, National Stan- dards for Traffic Control Devices; the Manual on Uni- form Traffic Control Devices for Streets and Highways; Revision; Final Rule, 74 Fed. Reg. 66,730, 66780-84 (Dec. 16, 2009), available at http://www.gpo.gov/fdsys/ pkg/FR-2009-12-16/html/E9-28322.htm, hereinafter referred to as the “2009 Final Rule–MUTCD.”

6 right-of-way shall not be located where they will interfere with, or detract from, traffic control devices.”30 Several statements in Part 2 on Signs became Standards. For example, in Section 2A.18 on Mounting Height, the statement in paragraph 01 that “[t]he provisions of this Section shall apply unless specifically stated otherwise for a particu- lar sign or object marker elsewhere in this Man- ual,” although originally proposed as a guidance statement, was set as a Standard.31 In the same section, the following statement in paragraph 05 was adopted as a Standard: The minimum height, measured vertically from the bot- tom of the sign to the top of the curb, or in the absence of curb, measured vertically from the bottom of the sign to the elevation of the near edge of the traveled way, of signs installed at the side of the road in business, commercial, or residential areas where parking or pedestrian move- ments are likely to occur, or where the view of the sign might be obstructed, shall be 7 feet. 32 In Section 2B.02, Design of Regulatory Signs, the statement in paragraph 01 was converted to a Standard: “Regulatory signs shall be rectangular unless specifically designated otherwise. Regula- tory signs shall be designed in accordance with the sizes, shapes, colors, and legends contained in the ‘Standard Highway Signs and Markings’ book (see Section 1A.11).”33 In Section 2B.40 on One Way Signs (Section 2B.37 of the 2003 MUTCD), FHWA change[d] paragraph 03 to a STANDARD to require, rather than recommend, that at an intersection with a di- vided highway having a median width of 30 feet or more, ONE WAY signs be placed on the near right and far left corners of each intersection with the directional roadways to reflect recommendations from the Older Driver hand- book. 34 In Section 2B.42 applicable to Divided Highway Crossing Signs (R6-3, R6-3a), the statement in paragraph 05 that “[t]he Divided Highway Cross- ing sign shall be located on the near right corner of the intersection, mounted beneath a STOP or YIELD sign or on a separate support” was ele- vated from an Option to a Standard.35 30 2009 Final Rule–MUTCD, supra note 29, at 66735; MUTCD, supra note 1, at 4. 31 2009 Final Rule–MUTCD, supra note 29, at 66742; MUTCD, supra note 1, at 42. 32 2009 Final Rule–MUTCD, supra note 29, at 66742; MUTCD, supra note 1, at 42. 33 2009 Final Rule–MUTCD, supra note 29, at 66742; MUTCD, supra note 1, at 45. 34 2009 Final Rule–MUTCD, supra note 29, at 66751; MUTCD, supra note 1, at 77. 35 2009 Final Rule–MUTCD, supra note 29, at 66752; MUTCD, supra note 1, at 82. In Section 2C.09, the statement in paragraph 01 was elevated to a Standard: “The use of the Chev- ron Alignment (W1-8) sign (see Figures 2C-1 and 2C-2) to provide additional emphasis and guid- ance for a change in horizontal alignment shall be in accordance with the information shown in Table 2C-5.”36 In Section 2E.31 on Interchange Exit Number- ing (Section 2E.28 in the 2003 MUTCD), FHWA in paragraph 04 “replace[d] an OPTION with a STANDARD stating that interchange exit num- bering shall use the reference location exit num- bering method and that the consecutive exit num- bering method shall not be used.”37 The change was adopted “because only 8 of the 50 States still use consecutive exit numbering and, based on past public comment and inquiries, the vast ma- jority of road users now expect reference location exit numbering.”38 Also in Section 2E.31, FHWA change[d] a GUIDANCE statement in the 2003 MUTCD to a STANDARD statement to require that a left exit number (E1–5bP) plaque be used at the top left edge of the sign for numbered exits to the left to alert road users that the exit is to the left, which is often not expected. This change also required that the “LEFT” portion of the message be black on a yellow background. 39 In Section 2J.04 on the Number and Size of Signs and Logo Sign Panels (Section 2F.04 of the 2003 MUTCD), FHWA adopted “OPTION and STANDARD statements to permit the use of, and provide the associated requirements for, addi- tional logo sign panels of the same specific service type when more than six businesses of a specific service type are eligible for logo sign panels at the same interchange.”40 FHWA adopted Section 2J.10 on Signs at Inter- sections, which consolidates option and standard statements from the 2003 MUTCD as a Stan- dard.41 FHWA explained that “the consolidated STANDARD continues to allow the action mes- sage or directional arrow to be either (1) above the logos on the same line as the service type, or (2) below the logos.”42 Although these statements were consolidated into a Standard, the states are 36 2009 Final Rule–MUTCD, supra note 29, at 66759; MUTCD, supra note 1, at 112. 37 2009 Final Rule–MUTCD, supra note 29, at 66777; MUTCD, supra note 1, at 212. 38 2009 Final Rule–MUTCD, supra note 29, at 66777; see MUTCD, supra note 1, at 212. 39 2009 Final Rule–MUTCD, supra note 29, at 66777; MUTCD, supra note 1, at 212. 40 2009 Final Rule–MUTCD, supra note 29, at 66791; MUTCD, supra note 1, at 317. 41 2009 Final Rule–MUTCD, supra note 29, at 66792; see MUTCD, supra note 1, at 319. 42 Id.

7 allowed to keep their existing signs until they need to be replaced, at which time the replace- ment sign must comply with the 2009 MUTCD.43 In Part 3, Markings, Section 3B.08, Extensions Through Intersections or Interchanges, paragraph 06, which had recommended “that edge lines should not be extended through major intersec- tions or major driveways as solid lines” was changed from a guidance statement to a Stan- dard.44 In Part 6, Temporary Traffic Control, Section 6F.60, Portable Changeable Message Signs, para- graph 07 was elevated to a Standard to require “that Portable Changeable Message signs comply with specific chapters and tables in the MUTCD.”45 In Section 6F.71 on Longitudinal Channelizing Devices, the statement in paragraph 07 was changed to a Standard: “If used for pedestrian traffic control, longitudinal channelizing devices shall be interlocked to delineate or channelize flow. The interlocking devices shall not have gaps that allow pedestrians to stray from the channel- izing path.”46 2. Standards Changed to a Guidance or Other Statement Some Standards were changed to a Guidance or other type of statement in the 2009 MUTCD. For example, in Part 1 (General), Section 1A.10 appli- cable to Interpretations, Experimentations, Changes, and Interim Approvals, the statement in paragraph 20 was reduced from a Standard to a Guidance statement: “A local jurisdiction, toll fa- cility operator, or owner of a private road open to public travel using a traffic control device or ap- plication under an interim approval that was granted by FHWA either directly or on a state- wide basis based on the State’s request should inform the State of the locations of such use.”47 In Part 2 on Signs, Section 2B.20, Mandatory Movement Lane Control Signs (R3-5, R3-5a, R3-7, and R3-20), the statement in paragraph 05 on the use of R3-5 and R3-5a signs and whether supplemental plaques should be added was reduced from a Standard to a guidance statement.48 43 Id. 44 2009 Final Rule–MUTCD, supra note 29, at 66798; MUTCD, supra note 1, at 371–74. 45 2009 Final Rule–MUTCD, supra note 29, at 66834; MUTCD, supra note 1, at 599. 46 2009 Final Rule–MUTCD, supra note 29, at 66836; MUTCD, supra note 1, at 610. 47 2009 Final Rule–MUTCD, supra note 29, at 66736; MUTCD, supra note 1, at 7. 48 2009 Final Rule–MUTCD, supra note 29, at 66748; MUTCD, supra note 1, at 63. In Sections 2D.31 on Advance Route Turn As- sembly (Section 2D.29 of the 2003 MUTCD) and 2D.40 on Location of Destination Signs (Section 2D.35 of the 2003 MUTCD), FHWA adopted changes to allow for more flexibility.49 The place- ment of signs was reduced from a Standard to a Guidance statement “to recommend, rather than require, that the signs be installed at the dis- tances stated therein” and “to provide more flexi- bility for the placement of these various signs, particularly as it relates to rural areas.”50 In Part 3, Markings, Section 3B.02 that applies to No-Passing Zone Pavement Markings and War- rants, FHWA changed a Standard in paragraph 16 to a Guidance statement: “The minimum lane transition taper length should be 100 feet in ur- ban areas and 200 feet in rural areas.”51 An iden- tical statement in paragraph 05 of Section 3B.10, Approach Markings for Obstructions, also was reduced to a Guidance statement.52 The statement in paragraph 02 of Section 3I.03, Island Marking Application, that “[p]avement markings as described in Section 3B.10 for the approach to an obstruction may be omitted on the approach to a particular island based on engineer- ing judgment,” was converted from a Standard to a Guidance statement.53 In Part 6, Temporary Traffic Control, Section 6C.07 applicable to Termination Area, the Stan- dard in paragraph 01 was changed to a Support statement: “The termination area is the section of the highway where road users are returned to their normal driving path. The termination area extends from the downstream end of the work area to the last TTC device such as END ROAD WORK signs, if posted.”54 Also, in Section 6F.04 on Sign Maintenance, paragraphs 01 and 02, which state that “[s]igns should be properly maintained for cleanliness, visibility, and correct positioning” and that “[s]igns that have lost significant legibility should be promptly replaced,” were changed from a Stan- dard to guidance statements.55 In Section 6F.60, Portable Changeable Message Signs, paragraph 01 that discusses the design and 49 2009 Final Rule–MUTCD, supra note 29, at 66767; MUTCD, supra note 1, at 153, 158. 50 2009 Final Rule–MUTCD, supra note 29, at 66767. 51 2009 Final Rule–MUTCD, supra note 29, at 66797; MUTCD, supra note 1, at 354. 52 2009 Final Rule–MUTCD, supra note 29, at 66799; MUTCD, supra note 1, at 376. 53 2009 Final Rule–MUTCD, supra note 29, at 66,804-05; MUTCD, supra note 1, at 430. 54 2009 Final Rule–MUTCD, supra note 29, at 66,830; MUTCD, supra note 1, at 555. 55 2009 Final Rule–MUTCD, supra note 29, at 66,833; MUTCD, supra note 1, at 583.

8 application of Portable Changeable Message Signs was converted from a “STANDARD to SUPPORT because this statement just provides information, rather than requirements.”56 3. Other Changes to the MUTCD Allowing for the Exercise of Discretion In the Introduction to the MUTCD discussing the term Standard, FHWA changed the statement in paragraph 09 to a guidance statement to pro- vide that “[t]he States should adopt Section 15- 116 of the UVC, which states that, ‘No person shall install or maintain in any area of private property used by the public any sign, signal, marking, or other device intended to regulate, warn, or guide traffic unless it conforms with the State manual and specifications adopted under Section 15-104.’”57 In Part 1 (General), Section 1A.10, Interpreta- tions, Experimentations, Changes, and Interim Approvals, although there were requests for a Standard, the statement in paragraph 21 was added as a guidance statement: [a] local jurisdiction, toll facility operator, or owner of a private road open to public travel that is requesting per- mission to experiment or permission to use a device or application under an interim approval should first check for any State laws and/or directives covering the applica- tion of the MUTCD provisions that might exist in their State. 58 In Section 2A.03, Standardization of Applica- tion, FHWA retained the guidance statement in paragraph 02 to provide that “[s]igns should be used only where justified by engineering judg- ment or studies, as provided in Section 1A.09.” In paragraph 03, the Manual states that “[r]esults from traffic engineering studies of physical and traffic factors should indicate the locations where signs are deemed necessary or desirable.”59 In Section 2A.07, applicable to Retroreflectivity and Illumination, “the FHWA delete[d] the exist- ing and proposed guidance about illumination of overhead signs, because the minimum maintained retroreflectivity levels for overhead signs that were adopted as Revision 2 of the 2003 MUTCD provide for adequate performance of these signs. Highway agencies can determine to illuminate overhead signs based on their own policies or on studies of specific problem areas.”60 56 2009 Final Rule–MUTCD, supra note 29, at 66,834; MUTCD, supra note 1, at 598. 57 2009 Final Rule–MUTCD, supra note 29, at 66735; MUTCD, supra note 1, at I-2. 58 2009 Final Rule–MUTCD, supra note 29, at 66739; MUTCD, supra note 1, at 7. 59 MUTCD, supra note 1, at 27. 60 2009 Final Rule–MUTCD, supra note 29, at 66739. In Section 2B.10, STOP Sign or YIELD Sign Placement, a guidance statement was added as paragraph 16 that “STOP or YIELD signs should not be placed farther than 50 feet from the edge of the pavement of the intersected roadway.”61 In paragraph 16, although there was a request to delete the requirement that “[i]f a raised splitter island is available on the left-hand side of a multi- lane roundabout approach, an additional YIELD sign should be placed on the left-hand side of the approach,”62 FHWA chose instead to incorporate the provision as a guidance statement.63 In Section 2B.13 on Speed Limit Sign (R2-1), FHWA added several Support and Option state- ments to allow for deference to local policies and discretion in the use of speed limit signs.64 In Section 2B.18, paragraph 09 on the placement of and installation of turn prohibition signs in conjunction with traffic control signals was converted from an Option to a guidance statement.65 At the end of Section 2B.20 (Section 2B.21 in the 2003 MUTCD) on Mandatory Movement Lane Control Signs, FHWA added an option statement on the use of new turn lane signs at the upstream end of the turn lane taper of mandatory turn lanes “to give agencies flexibility to use these new signs to designate the beginning of mandatory turn lanes where needed for enforcement pur- poses.”66 Furthermore, paragraph 05 of the same section was implemented as a guidance statement to “recommend, rather than require, that R3–5 series supplemental plaques…for R3–5 series lane control signs on two-lane approaches be mounted above the associated R3–5 sign, for consistency with a similar statement in Section 2B.20.”67 In Sections 2B.37 (Do Not Enter Sign) and 2B.38 (Wrong Way Sign), formerly Sections 2B.34 and 2B.35 in the 2003 MUTCD, the FHWA added support statements that allow for “lower mount- ing heights for Do Not Enter and Wrong Way signs as a specific exception when an engineering study indicates that it would address wrong-way movements at freeway/expressway exit ramps.”68 61 2009 Final Rule–MUTCD, supra note 29, at 66741; MUTCD, supra note 1, at 53. 62 2009 Final Rule–MUTCD, supra note 29, at 66744. 63 2009 Final Rule–MUTCD, supra note 29, at 66744; MUTCD, supra note 1, at 54. 64 MUTCD, supra note 1, at 57–58. 65 2009 Final Rule–MUTCD, supra note 29, at 66747; MUTCD, supra note 1, at 61. 66 2009 Final Rule–MUTCD, supra note 29, at 66748; see MUTCD, supra note 1, at 63. 67 2009 Final Rule–MUTCD, supra note 29, at 66748; see MUTCD, supra note 1, at 63. 68 2009 Final Rule–MUTCD, supra note 29, at 66750; see MUTCD, supra note 1, at 75–76.

9 FHWA added Section 2B.56 on Ramp Metering Signs. Although FHWA had proposed to add a Guidance statement on the recommended use of new regulatory signs that should accom- pany ramp control signals, FHWA adopted the language as an option statement to “allow[] agen- cies to determine whether the use of the signs is appropriate for their conditions based on en- forcement experience.”69 FHWA changed paragraph 03 in Section 2C.50 on Non-Vehicular Warning Signs (Section 2C.41 of the 2003 MUTCD) from an option to a guidance statement to recommend only the “use of warning signs supplemented with plaques with the AHEAD or XX FEET legend when they are used with or in advance of a pedestrian, snowmobile, or equestrian crossing to inform road users that they are approaching a point where crossing activity might occur.”70 FHWA adopted Section 2E.23 on Signing for In- termediate and Minor Interchange Multi-Lane Exits with an Option Lane “to provide recommendations on the types of signing to be used at intermediate and minor multi-lane exits where there is an operational need for the pres- ence of an option lane for only the peak period.”71 The reasoning was that based on past experience and comments, the “provision provides flexibility and guidance on the signing for such locations where the Overhead Arrow-per-Lane or diagram- matic signs are not practicable due to various con- siderations.”72 FHWA originally had proposed in Section 3B.03 with respect to Other Yellow Longitudinal Pave- ment Markings to change the first option to a guidance statement to “recommend for certain conditions, rather than just permit, the use of ar- rows with two-way left-turn lanes.”73 FHWA adopted paragraph 04 as a guidance statement but relocated the text describing the placement locations for two-way left turn lane-use arrow pavement markings to Section 3B.20.74 In Part 4 on Highway Traffic Signals, FHWA adopted Chapter 4F on Pedestrian Hybrid Bea- cons “with three sections that describe the application, design, and operation of pedestrian 69 2009 Final Rule–MUTCD, supra note 29, at 66755; MUTCD, supra note 1, at 97. 70 2009 Final Rule–MUTCD, supra note 29, at 66764; MUTCD, supra note 1, at 130. 71 2009 Final Rule–MUTCD, supra note 29, at 66776; MUTCD, supra note 1, at 203. 72 2009 Final Rule–MUTCD, supra note 29, at 66776. 73 2009 Final Rule–MUTCD, supra note 29, at 66797; MUTCD, supra note 1, at 354. 74 2009 Final Rule–MUTCD, supra note 29, at 66797; MUTCD, supra note 1, at 354. hybrid beacons, and with three new figures.”75 Chapter 4F was adopted “to give agencies addi- tional flexibility by providing an alternative method for control of pedestrian crosswalks that has been found by research to be highly effec- tive.”76 Finally, because some of the MUTCD provisions do not translate easily to parking lots and parking garages, “the FHWA exempt[ed] parking spaces and driving aisles in parking lots, both privately and publicly owned, from MUTCD” requirements.77 E. Revision 1 of the MUTCD Since 2009 FHWA has made at least two impor- tant revisions of the MUTCD. As originally pub- lished, the 2009 edition of the MUTCD stated that Standards “shall not be modified or compromised based on engineering judgment or engineering studies,”78 a provision that FHWA deleted in a rule published on May 14, 2012.79 In its final rule FHWA explained that this “prohibition has al- ways been inherent in the meaning of Standards, but the FHWA is aware of cases where the lack of explicit text to this effect has resulted in the mis- application of engineering judgment or studies. Some agencies believed that Standards could be ignored based on engineering judgment or an en- gineering study, which is not the case.”80 Nevertheless, FHWA’s final rule specifically clarified the definition of the term Standard in the MUTCD, as well as the use of engineering judgment and studies in relation to Standards in the application of traffic control devices.81 The effect of the final rule and Revision 1 is 1) to omit certain language that was included in the 2009 MUTCD, and 2) to restore language that ap- peared in the 2003 MUTCD but was deleted in the 2009 edition.82 First, FHWA removed the sentence “[s]tandard statements shall not be modified or compromised based on engineering judgment or engineering study,” which had been added to Section 1A.13 on definitions of headings, words, and phrases.83 Sec- 75 2009 Final Rule–MUTCD, supra note 29, at 66826; MUTCD, supra note 1, at 509–12. 76 2009 Final Rule–MUTCD, supra note 29, at 66826. 77 2009 Final Rule–MUTCD, supra note 29, at 66733. 78 2009 Final Rule–MUTCD, supra note 29, at 66737. 79 National Standards for Traffic Control Devices; the Manual on Uniform Traffic Control Devices for Streets and Highways; Revision, 77 Fed. Reg. 28,456, 28,457 (May 14, 2012). 80 Id. 81 Id. The final rule became effective on June 13, 2012. 82 Id. 83 Id. at 28457.

10 ond, FHWA restored three guidance sentences that were included in Section 1A.09, Engineering Study and Engineering Judgment, of the 2003 edition but were deleted in the 2009 edition. The guidance sentences FHWA restored that now are a part of the 2009 MUTCD are: The decision to use a particular device at a particular location should be made on the basis of either an engi- neering study or the application of engineering judgment. Thus, while this Manual provides Standards, Guidance, and Options for design and applications of traffic control devices, this Manual should not be considered a substi- tute for engineering judgment. Engineering judgment should be exercised in the selection and application of traffic control devices, as well as in the location and de- sign of roads and streets that the devices complement. 84 FHWA stated that “[t]he inclusion of such lan- guage will continue our current practice under Official Interpretation 1(09)–1 (I) to allow devia- tions from a STANDARD only on the basis of ei- ther an engineering study or the application of engineering judgment.”85 F. Revision 2 of the MUTCD The second important revision of the 2009 MUTCD concerns compliance dates in Table I–2. On May 14, 2012, FHWA published a second final rule that revised Table I–2 of the MUTCD by eliminating the compliance dates for 46 items (8 that had already expired and 38 that had future compliance dates) and extends and/or revises the dates for 4 items. The target compliance dates for 8 items that are deemed to be of critical safety importance will remain in effect. 86 In the final rule FHWA explained, moreover, that “[w]hen new provisions are adopted in a new edition or revision of the MUTCD, any new or reconstructed traffic control devices installed after adoption are required to be in compliance with the new provisions.”87 However, unless FHWA estab- lishes compliance dates for upgrading existing devices, such “[e]xisting devices already in use that do not comply with the new MUTCD provi- sions are expected to be upgraded by highway agencies over time to meet the new provisions.”88 G. Dates of State Adoption of the 2009 MUTCD The version of the Manual in effect at the time of any alleged violation of the Manual is the ver- 84 Id. at 28458. 85 Id. 86 Id. 87 Id. 88 Id. sion that applies in a tort action.89 Of the 21 states that responded to the survey, 18 had adopted the 2009 MUTCD.90 Of those departments that had adopted the 2009 MUTCD, eight adopted it in 2012, five did so in 2011, and one in 2010. Several states reported that they adopted their own ver- sion that is in substantial conformance with the MUTCD.91 The term “substantial conformance” means that a state MUTCD or supplement con- forms at a minimum to the standards included in the national MUTCD.92 For example, Missouri has developed an FHWA-approved Engineering Policy Guide (EPG) that is in substantial conformance with the MUTCD.93 89 Shope v. City of Portsmouth, 2012 Ohio 1605, at 20 (2012). 90 Responses of Arizona DOT (adopted on Jan. 13, 2012 (as modified by the Arizona Supplement to the 2009 MUTCD), available at http://azdot.gov/docs/ business/arizona-supplement-to-the-manual-on- uniform-traffic-control-devices-(2009-mutcd- edition).pdf); Arkansas Highway and Transportation Department (stating that the “Arkansas Highway Commission, in 2004, formally adopted the latest edi- tion of the MUTCD and all current and future updates, revisions or new editions approved by the FHWA”); Cal- trans (Jan. 13, 2012); Iowa DOT (reporting that the 2009 MUTCD has been adopted by administrative rule with exceptions. See 760 IOWA ADMIN. CODE 130.1); Kansas DOT (Dec. 16, 2011); Michigan DOT (adopted a Michigan version of the MUTCD on Dec. 1, 2011, that is in substantial compliance with the MUTCD); Nebraska Department of Roads (Apr. 26, 2012); Nevada DOT (cit- ing NEV. REV. STAT. § 484A.430 and NEV. ADMIN. CODE § 408.144); New Hampshire DOT (Jan. 2012); New York State DOT (2010); Oklahoma DOT (Apr. 2, 2012); Penn- sylvania DOT (Feb. 2012); Texas DOT (stating that its MUTCD adopted on Dec. 8, 2011, is in “substantial compliance” with the 2009 national MUTCD); Virginia DOT (Jan. 1, 2012); Washington DOT (Dec. 19, 2011); and Wisconsin DOT (May 25, 2011). 91 Responses of Indiana DOT (stating that Indiana adopted an Indiana version of the 2009 MUTCD in Nov. 2011 that was revised in Oct. 2012); Ohio DOT; Michi- gan DOT; Missouri Highway and Transportation Com- mission (adopted an Engineering Policy Guide (EPG)); Texas DOT; Utah DOT (stating that in Jan. 2012 the Utah MUTCD was found to be in substantial compli- ance with the 2009 national MUTCD); and Washington State DOT (stating that the MUTCD was adopted with modifications by the department on Dec. 19, 2011). 92 See 23 C.F.R. § 655.603(b)(1). 93 Response of Missouri Highway and Transportation Commission (stating that FHWA approved the EPG by letter dated Dec. 30, 2011, and that the Commission has not adopted the national MUTCD in Missouri since 2001).