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Potential Liability Associated with Unstable Slope Management Programs (2020)

Chapter: III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS

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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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Suggested Citation:"III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS." National Academies of Sciences, Engineering, and Medicine. 2020. Potential Liability Associated with Unstable Slope Management Programs. Washington, DC: The National Academies Press. doi: 10.17226/25836.
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NCHRP LRD 82 13 retains the exponential RHRS rating score for rock slopes, but it converts the RHRS rating score into a qualitative condition state (“good,” “fair,” or “poor”).118 For each condition, RAMP provides for consideration of the life-cycle costs of possible treatments— ranging from routine maintenance (e.g., ditch cleaning and debris removal), to preservation (e.g., scaling, bolting, and mesh), to reconstruction of the slope or highway—in order to determine the most cost-effective approach for a given slope.119 RAMP also provides support for calculating the benefit-cost ratio of mitigation projects in order to prioritize slope mitiga- tion projects along with other highway improvement projects given limited funding.120 Unstable slope management programs have been described as “living” programs that evolve over time to adapt to improved methods and technology.121 Today many systems are integrated with GIS mapping, so the slope assets can be viewed geographi- cally.122 Also, handheld device applications are often available for local maintenance personnel to submit information such as slope failure incident details, creating the potential for real-time updating of slope hazard ratings.123 In the future, the programs may be integrated with sensor data to track slope movement.124 The relatively simple slope hazard rating calculations can be supplemented by integrating the unstable slope management programs with more sophisticated computational models to more accurately predict the likelihood of slope failure.125 The growing variety of unstable slope management programs and the evolving nature of the programs make it difficult to make blanket conclusions about whether the programs help State DOTs avoid liability in the case of slope failure. Reported court cases involving unstable slope management programs are exam- ined in Section V. Before examining those cases, the following sections provide an overview of tort liability for State DOTs in general, and specifically for slope failure cases. III. LIABILITY AND IMMUNITY ANALYSIS FOR STATE DOTS Tort claims against State DOTs for highway slope failure al- most always involve an analysis of governmental immunity and whether it applies to the claim.126 Before considering the spe- cific situation of highway slope failure in Section IV, this section provides an overview of governmental immunity for State DOT 118 Id. at 27–28. 119 Id. at 16–17. 120 Id. at 22–24. 121 Id. at 30; Badger et al., supra note 76, at 1653. 122 See, e.g., Huang et al., supra note 66, at 60. 123 See, e.g., Robert Y. Liang, Landslide Hazard Rating Matrix and Database, Rep. No.  FHWA/OH-2007/18, vol. 1, at 43 (2007). 124 See, e.g., Thompson et al., supra note 77, at App. F. 125 See, e.g., Pack et al., supra note 53, at 30 (suggesting the use of the Colorado Rockfall Simulation Program in conjunction with the slope hazard rating score). 126 John W. Chandler, Highway Design and Road Hazards, 1 Handling Motor Vehicle Accident Cases 2d, § 1:33 (2018). those with the highest hazard ranking.108 Whereas traditional unstable slope management programs focus attention on slopes that are at the end of their service life and in need of full reme- diation, asset management programs consider lesser mitigation measures (such as scaling, barriers, and catchment ditch im- provements) that can extend the service life of the slope.109 The most cost-effective mitigation strategy for a given slope can be determined by considering the anticipated costs of a slope fail- ure (perhaps including property damage and personal injury), the probabilities of slope failure associated with alternative maintenance strategies (including no action), and the antici- pated annual maintenance costs associated with each mainte- nance strategy.110 For example, the Alaska Department of Transportation and Public Facilities (DOT&PF) has developed a geotechnical asset management program known as the Unstable Slope Manage- ment Program (USMP).111 A key feature of the Alaska DOT&PF USMP is a slope hazard rating, which is principally based on the RHRS112 but also incorporates elements of the Washington State DOT USMS and the New York State DOT rockfall rating method.113 The Alaska DOT&PF USMP provides a methodol- ogy for ranking both rock and soil slopes, with a preliminary rating consisting of 7 categories, and a detailed rating consisting of 18 categories (9 “hazard” categories and 9 “risk” categories), each scored using an exponential scoring system (3, 9, 27, or 81 points).114 The ranking system is supplemented with an assess- ment of the slope’s condition in terms of its life cycle, recommen- dation of treatments to improve the slope’s condition or extend its life cycle, and calculation of a benefit-cost ratio to evaluate alternative treatments and to allow for comparison of slope improvement projects with projects to improve other trans- portation assets.115 The costs of alternative approaches include the direct cost of the improvement project, the anticipated life- cycle maintenance costs associated with alternative treatments (including the “no action” alternative), and the costs associated with slope failure (based on the consequences of slope failure and the probability of failure for the alternative treatments).116 Similarly, the Montana DOT has converted its RHRS into a Rock Slope Asset Management Program (RAMP).117 RAMP 108 Id. at 115. 109 Id. at 110. 110 David A. Stanley & Lawrence A. Pierson, Geotechnical Asset Management of Slopes: Condition Indices and Performance Measures, Proceedings of GeoCongress 2013, 1658, 1663 (2013). 111 Thompson et al., supra note 77. 112 David A. Stanley & Lawrence A. Pierson, Geotechnical Asset Management Performance Measures for an Unstable Slope Manage- ment Program, Proceedings of 62nd Highway Geology Symposium, Lexington, Ky. (2011), available at https://www. highwaygeologysymposium.org/wp-content/uploads/62_hgs-OPT. pdf. 113 Thompson et al., supra note 77, at A2, A3. 114 Id. at Apps. C, D. 115 Id. at 35–44. 116 Id. at 45–50. 117 Beckstrand et al., supra note 6 at 1.

14 NCHRP LRD 82 lowing individuals to sue the state government in tort. However, in that same year the New York Court of Appeals held that the Court of Claims Act did not constitute a waiver of governmental immunity.133 The effect of this ruling was that the state govern- ment’s liability in tort was limited to claims arising under the separate Highway Law, which provided that the state govern- ment was liable for injury due to defective highway conditions during times when roads were subject to patrol.134 Thereafter, the New York legislature amended its Court of Claims Act in 1929 to expressly provide for a general assumption of tort liability by the state government, and further amended it to its present form in 1939.135 With this waiver of immunity in place, a body of case law developed in New York that established a set of general rules re- garding the state government’s duty to maintain its highways in a reasonably safe condition for travel, at a time when governmen- tal immunity had not been waived by other state gov ernments or by the federal government. Since the 1800s, the New York courts had recognized a rule that a local government, “having power to maintain and control streets, was bound to exercise ordinary and reasonable care and diligence to see that they were kept in a reasonably safe condition for public travel.”136 The New York legislature’s broad waiver of governmental immunity in 1929 effectively extended this duty to the state government. As a general rule, this duty meant that if the state government was deemed to have notice of a dangerous condition on the high- way, then the state government was liable for injuries or prop- erty damage incurred by travelers as a result of the dangerous condition. In the case of falling rock or soil, this typically meant that the state government had an obligation to prevent the debris from reaching the highway by constructing appropriate barriers, or else closing the highway—merely erecting warning signs (and thus allowing travelers to use the highways at their own risk) was insufficient.137 For example, in the late 1930s, the State of New York was held liable for personal injury when multiple travelers were injured or killed as a 20-foot-wide rock ledge “suddenly” fell from a state-owned mountain adjacent to the highway, during the spring “thawing period” in April 1934.138 The plaintiffs al- leged negligence against the State for “failing to maintain bar- ricades, cables, retaining walls, rails or guards and properly to reinforce and protect the scenic highway.”139 The State argued 133 Smith v. State of New York, 227 N.Y. 405, 409, 125 N.E. 841, 842 (1920). 134 Charles F. Lacina, Ct. Cl. Act § 8: Waiver of Sovereign Immunity Does Not Permit Assessment of Punitive Damages Against the State or Its Political Subdivisions, 57 St. John’s L.  Rev. 401 n.49 (1983); John J. McNamara, Jr., The Court of Claims: Its Development and Present Role in the Unified Court System, 40 St. John’s L. Rev. 1, 4–14 (1965). 135 Id. 136 Nelson v. Vill. of Canisteo, 100 N.Y. 89, 93, 2 N.E. 473, 474 (1885). 137 Thomas M. Fleming et al., Falling Rocks or Earth, 65 N.Y. Jur. 2d Highways, Streets, and Bridges § 503 (2019). 138 Doulin v. State, 277 N.Y. 558, 13 N.E.2d 472 (1938). 139 Id. activities in general, liability of State DOTs due primarily to waivers of immunity, and what is commonly known as the “dis- cretionary function” exception to liability and the correspond- ing limited immunity retained for some State DOT activities. A. Governmental Immunity It is often said that federal, state, and local governments were historically immune from liability in tort related to highway ac- cidents.127 Immunity deteriorated somewhat over time as courts came to distinguish between governmental and “proprietary” functions, so that state or local governments could be held liable for negligence when engaged in proprietary activities.128 The construction and maintenance of highways was widely understood to be a governmental function, and courts histori- cally recognized “that state highway departments, commissions, authori ties, or similar bodies are mere agencies of the state en- titled to the sovereign immunity from suit and that therefore an action for negligence will not lie against such an agency except where there has been a waiver of immunity.”129 However, even before there were widespread waivers of gov- ernmental immunity, courts often imposed on state and local governments a duty to maintain public highways “in a reason- ably safe condition for travel.”130 The government’s duty to main- tain highways was limited with regard to slope hazards, which could be cost-prohibitive for the government to control. The government was not required to ensure absolute safety . . . at a prohibitive or impracticable cost, as in the case of a road over a mountain where of necessity the grades must be steep and the roadway narrow and winding, or in a road at the foot of cliffs or palisades w[h]ere falling rocks, earth or débris may endanger the traveller.131 The government was “not an insurer of the safety of persons travelling” on the highways, and its duty to maintain the high- ways in a reasonably safe condition was discharged as long as the government exercised “ordinary and reasonable care,”132 i.e., as long as the government was not negligent. B. Statutory Waivers of Immunity 1. New York Court of Claims Act New York was the first state in which the courts interpreted statutory consent to be sued as a waiver of immunity in tort. The New York legislature enacted a Court of Claims Act in 1920, al- 127 John W. Chandler, State and Local Governments, 1 Handling Motor Vehicle Accident Cases 2d, § 2:19 (2018). 128 See generally W.E. Shipley, State’s Immunity from Tort Liability as Dependent on Governmental or Proprietary Nature of Function, 40 A.L.R. 2d 927 (1955). 129 W.E. Shipley, Liability and Suability, in Negligence Action, of State Highway, Toll Road, or Turnpike Authority, 62 A.L.R. 2d 1222 (1958). 130 R.P. Davis, Duty as Regards Barriers for Protection of Automobile Travel, 173 A.L.R. 626 (1948). 131 City of Cumberland v. Turney, 177 Md. 297, 309–10, 9 A.2d 561, 566 (1939) (emphasis supplied). 132 Id. at 310, 9 A.2d 566.

NCHRP LRD 82 15 courts concluded that its non-ownership of the embankment did “not relieve the state from the duty to afford reasonable safe conditions for travel,”152 and held the state government liable for the injuries. In Juliano v. State,153 the New York courts appeared to ex- pand the duty to maintain the highways in a safe condition for travel, so that the state government could be liable in negligence not just for failing to construct barriers to protect travelers, but also for failing to adequately patrol the highways, failing to ade- quately warn travelers, and even for constructing the highway in such a way that it was conducive to rockfall. In Juliano, a vehicle was damaged when it collided with landslide debris covering the southbound lanes at approximately 2 a.m., despite the fact that the same vehicle had traveled through the same section of the highway between 5 p.m. and 6 p.m. the previous evening and found the highway clear.154 This “bypass” section of the high- way had been originally constructed in 1942, “cut through rock and earth,”155 with a steep 40-foot-high earth wall on the side of the highway. The accident occurred during the spring thawing period in March 1944, following a rainstorm.156 The state gov- ernment argued that it did not have sufficient notice of the con- dition to be charged with negligence for failing to clear the road, as the highway was only patrolled during daylight hours, and the highway patrol received a call about the landslide around 2 a.m., the time of the accident.157 There was no evidence of previous landslides at the precise location of the accident, but there was evidence that, “on prior occasions, rocks, stones, and earth had rolled and slid down embankments in various areas along said highway on to the travelled portions thereof”158 during the spring thawing period and also after rainstorms. Therefore, the court concluded that the state government had “actual knowledge” of the dangerous condition,159 and (to the extent it was unaware of this particular landslide) the state government was negligent by failing “to have made an inspection of the site of the accident, and of the em- bankments along the end of the said highway following, if not during, the rainstorm.”160 Although there were signs warning travelers of falling rock, the courts concluded that the warning signs along the highway “were not sufficient to call such danger to the attention of those traveling the same,”161 and were merely additional evidence of the state government’s actual or construc- tive knowledge of the dangerous condition. Furthermore, given the ample evidence of past rockfalls and the need for warning signs and regular obstruction removal along this new section of 152 Id. 153 190 Misc. 180, 71 N.Y.S.2d 474 (Ct. Cl. 1947), aff’d, 273 A.D. 936, 77 N.Y.S.2d 826 (1948). 154 Id. at 182–83, 71 N.Y.S.2d at 477–78. 155 Id. at 182, 71 N.Y.S.2d at 477. 156 Id. at 185, 71 N.Y.S.2d at 479. 157 Id. at 183, 71 N.Y.S.2d at 478. 158 Id. at 184, 71 N.Y.S.2d at 478–79. 159 Id. at 184, 71 N.Y.S.2d at 479. 160 Id. at 185, 71 N.Y.S.2d at 480. 161 Id. at 185, 71 N.Y.S.2d at 479. against liability, noting that the accident occurred outside of the patrol period under the Highway Law, which at the time was May 1 through November 15.140 However, due to the New York legislature’s 1929 amendments to the Court of Claims Act, the State’s liability was no longer limited to liability arising under the Highway Law.141 The State also argued against liability on the grounds that this accident was not a routine “loosening of rock, boulders, or stones” but rather the unforeseeable detach- ment of a “so[]called mass of mountain,”142 and thus a “so-called act of God, which a reasonably prudent person would not have anticipated.”143 However, the New York courts found that “offi- cials and employees of the State had actual knowledge of the danger to travelers,” and also that the “frequency with which rock had fallen during each spring since the road was con- structed was sufficient to charge the State” with constructive notice.144 Given the State’s duty “to maintain the highway in a reasonably safe condition for travel”145 and its notice of the dan- gerous condition, the courts concluded that the State should have closed the highway if it could not make it safe for travel.146 Further, “as the owner of the adjacent mountain,” the State had the duty “to construct such barriers as necessary to prevent rock from falling upon travelers using the highway.”147 In Jacobs v. State,148 the New York courts concluded that the obligation exists to construct barriers (or else close the high- way) even if the state government does not own the land from which the rock falls. In Jacobs, the travelers were injured when “sud denly and without warnings a great mass of dirt and rock and stones came down the bank”149 onto the lane in which they were traveling. The rockfall was precipitated by heavy rains from a hurricane, but the courts concluded that the state gov- ernment could not avoid liability by calling this an unforesee- able “act of God.” The state government was deemed to have notice of the dangerous condition, as “there had been slides in this area for several years . . ., and it was not an uncommon occurrence to find rocks and boulders in the travelled portion of the highway.”150 Despite notice of the dangerous condition, “no barriers had been erected at the point of the accident to pro- tect travellers on the highway,” apparently because the embank- ment was not within the highway right-of-way.151 The New York 140 Shaknis v. State, 251 A.D. 767, 768, 295 N.Y.S. 663, 666 (App. Div. 1937) (Bliss, J., dissenting), aff’d sub nom. Doulin v. State, 277 N.Y. 558, 13 N.E.2d 472 (1938). 141 Shaknis, 251 A.D. at 767, 295 N.Y.S. at 665 (“The State’s liability arises under section 12-a of the Court of Claims Act.”). 142 Doulin, 277 N.Y. 558, 13 N.E.2d 472 (1938). 143 Shaknis, 251 A.D. at 768, 295 N.Y.S. at 665 (Rhodes, J., dissenting). 144 Id. at 767, 295 N.Y.S. at 664. 145 Id. at 767, 295 N.Y.S. at 664–65. 146 Id. 147 Id. 148 177 Misc. 70, 29 N.Y.S.2d 924 (Ct. Cl. 1941), aff’d, 263 A.D. 1047, 33 N.Y.S.2d 692 (App. Div. 1942). 149 Id. at 71, 29 N.Y.S.2d at 925. 150 Id. 151 Id.

16 NCHRP LRD 82 firmed that discretionary decisions immune from action in tort are those that are “grounded in social, economic, and political policy.”172 In 1988, relying on its earlier decisions, the U.S. Supreme Court set forth a two-part test for determining whether the dis- cretionary function exception applies. First, one must determine whether the governmental conduct in question involves an “ele- ment of judgment or choice.”173 If there is a statute, regulation, or official policy prescribing a mandatory and specific action, there is no discretion, and thus no immunity.174 However, if no specific course of action is prescribed (i.e., there is an “element of judg- ment or choice”), then one must consider whether that decision is “grounded in social, economic, and political policy.”175 If so, then it is a “permissible exercise of policy judgment” that quali- fies for the discretionary function exception to tort liability.176 The federal government’s role in overseeing the highway program at a national level, such as setting national standards and funding highway improvement projects, has long been understood to qualify for the discretionary function excep- tion to liability under the FTCA. In 1962, in Mahler v. United States,177 the U.S. Court of Appeals for the Third Circuit held that the federal government’s approval of plans and specifica- tions for federal-aid highway projects is a “policy judgment” and “planning” decision entitled to discretionary immunity.178 The plaintiffs in Mahler had collided with a boulder that fell from an embankment onto a federally funded highway,179 and they argued that the discretionary function exception did not apply because Congress “specifically directed that highway safety . . . be considered in passing on submitted highway designs,”180 and that the approval of federal funds for a project “is a certification that the plans and specifications are ‘conducive to safety.’”181 However, the Third Circuit observed that the “statutory lan- guage pertaining to safety is one of numerous standards to which the [federal government] must look in determining whether or not approval is to be given to the design and specifications for a highway project.”182 Approving a project involves the “con- scious weighing”183 of multiple factors, making it a discretionary deci sion warranting immunity against allegations of “negligent planning and approval of the highway project.”184 The U.S. Court 172 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S. Ct. 2755, 2765, 81 L. Ed. 2d 660, 675 (1984). 173 Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958, 100 L. Ed. 2d 531, 540 (1988). 174 Id. 175 Id. at 537, 108 S. Ct. at 1959, 100 L. Ed. 2d at 541. 176 Id. 177 Mahler v. United States, 306 F.2d 713 (3d Cir. 1962). 178 Id. at 723–24. 179 Id. at 715. 180 Id. at 722. 181 Id. at 723. 182 Id. 183 Id. 184 Id. at 724. highway, the court concluded that the highway was negligently constructed.162 Although the case law above only applied to the State of New York at the time, statutory waivers of sovereign immunity would soon become widespread, as discussed in the following sections. Following the waivers of sovereign immunity, the themes ex- plored in the New York cases in the 1930s and 1940s would be revisited in slope failure cases in state courts across the country, as discussed in Section IV. 2. Federal Tort Claims Act In 1946, with the enactment of the Federal Tort Claims Act163 (FTCA), the federal government consented to be sued in tort.164 The FTCA provides that the federal government is generally liable for actual damages caused by its negligence “in the same manner and to the same extent as a private individual under like circumstances.”165 The FTCA does not contain an excep- tion from liability for governmental (as opposed to proprietary) activities. However, the FTCA does contain an exception from liability for the federal government’s “failure to exercise or per- form a discretionary function or duty.”166 Thus, the federal gov- ernment retains its immunity for negligence in the performance of discretionary (as opposed to ministerial) activities. Discre- tionary activities are those that typically must be performed by the government, which involve the government’s exercise of dis- cretion, judicial reasoning, or policy-making.167 The distinction between discretionary activities (for which the government retains immunity) and ministerial activities (where the government is subject to liability in tort) has been explored by the U.S. Supreme Court. In 1953, in Dalehite v. United States,168 its first case involving the FTCA, the Court concluded that “there is discretion”169 for decisions of govern- ment agencies and employees that are “responsibly made at a planning rather than operational level.”170 Lower courts attempt- ing to distinguish between planning and operational decisions for purposes of applying the discretionary function exception concluded that “planning” decisions are those that involve “the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy,” whereas operational decisions are those involving “normal day-by-day operations of the government.”171 In 1984, the U.S. Supreme Court con- 162 Id. at 182–84, 71 N.Y.S.2d at 477–78. 163 Pub. L. No. 79-601, 60 Stat. 812 (1946). 164 John C. Vance, Impact of the Discretionary Function Exception on Tort Liability of State Highway Departments, NCHRP LRD, No. 6, Transp. Res. Bd., Washington, D.C. 1989, p. 3. 165 28 U.S.C. § 2674 (2019). 166 28 U.S.C. § 2680(a) (2019). 167 See generally Amy M. Hackman, The Discretionary Function Exception to the Federal Tort Claims Act: How Much is Enough?, 19 Campbell L. Rev. 411 (1997). 168 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953). 169 Id. at 36, 73 S. Ct. at 968, 97 L. Ed. at 1441. 170 Id. at 42, 73 S. Ct. at 971, 97 L. Ed. at 1444. 171 Swanson v. United States, 229 F. Supp. 217, 220 (N.D. Cal. 1964).

NCHRP LRD 82 17 agency authorized to make such decisions.194 The discretionary function exception nominally immunizes State DOTs for their negligence in performing activities that involve the exercise of discretion (such as highway planning), but not in performing operational-level activities that do not involve the exercise of discretion.195 Courts often state that “to be entitled to immunity the state must make a showing that such a policy decision, con- sciously balancing risks and advantages, took place.”196 In situations where there is not a discretionary function exception to tort liability, courts often find immunity through other judicial doctrines. For example, some state court decisions still rely on the distinction between governmental and propri- etary functions, particularly in cases involving local govern- ments in states where the statutory waiver of immunity for the state government does not extend to its political subdivisions.197 Note that courts using the governmental-proprietary distinc- tion could conceivably find greater immunity than courts using the discretionary function exception, since both discretionary and operational activities could be cast as “governmental” when performed by a local government charged with maintaining its public streets. In other cases where the discretionary function exception is unavailable, courts may rely on the “public duty doctrine” to deter mine that state or local governments are not liable.198 Under this doctrine, government agencies alleged to have neg- ligently performed governmental functions will be found not liable to an injured individual, where the government’s statutory duty was owed to the general public and not to the individual.199 For example, building code inspectors may be held not liable for negligent inspections under the public duty doctrine when indi- viduals are subsequently injured due to code violations, because the statutory inspection requirement is a duty owed to the gen- eral public, not to a specific individual.200 Because practically all highways have a government agency responsible by statute for their maintenance, courts adhering to the public duty doctrine could find that government agencies are not liable for injuries involving the public highways, even more so than courts relying on the discretionary function exception.201 The following section examines State DOT liability for ac- tivities including highway planning, design, construction, and maintenance, under the framework of state government waivers of immunity and the discretionary function exception. 194 Dan B. Dobbs et al., The Law of Torts § 344 (2d ed. 2019). 195 Vance, supra note 164, at 21. 196 Johnson v. State, 69 Cal. 2d 782, 794 n.8, 447 P.2d 352, 361 n.8, 73 Cal. Rptr. 240, 249 n.8 (1968). 197 Dan B. Dobbs et al., The Law of Torts § 343 (2d ed. 2019). 198 Id. § 345. 199 Id. 200 Id. 201 See, e.g., Longtin v. D’Ambra Constr. Co., Inc., 588 A.2d 1044, 1046 (R.I. 1991) (“It cannot be disputed that the reconstruction of . . . a state highway, is an activity that is performed exclusively by the state.”). of Appeals for the Seventh Circuit reached the same conclusion in 1995 in Rothrock v. United States,185 where it was alleged that FHWA failed to ensure that a federally funded bridge was con- structed according to AASHTO safety standards.186 The Seventh Circuit concluded that “FHWA is charged with balancing a mix of factors,” “taking into account such considerations as safety, efficiency, and cost,”187 as well as other social, economic, and political policy factors. Thus, the discretionary function excep- tion to the FTCA barred suit by the injured plaintiffs.188 Although the federal government is largely immune from suit in tort for personal injury and property damage on feder- ally funded highways, State DOTs may be liable. It is typically State DOTs that are responsible for designing, constructing, or maintaining federally funded highways, which are tasks more operational in nature than the federal government’s decision to approve or fund a project. Whether these State DOT tasks qual- ify for discretionary immunity is examined in Section III.C. But first, the following section examines waivers of governmental immunity that apply to State DOTs. 3. State Immunity Waivers and Exceptions In the years following passage of the FTCA, most state leg- islatures followed the lead of Congress and enacted statutory waivers of immunity applicable to the state government.189 Some of these state immunity waivers were broad general waivers of immunity in tort like the FTCA, while others provided for state government liability for specific circumstances such as danger- ous highway conditions.190 Some of these statutory waivers of immunity provide for the state government to be sued in tort, while others provide an administrative procedure to process tort claims against the state government.191 Most statutory waivers of immunity for state governments include the discretionary function exception, closely mirroring the language of the FTCA.192 In most states where the discre- tionary function exception is not expressly incorporated into the statute, the courts have read an implied discretionary function exception into the statute.193 Whether the discretionary function exception has been conferred by the legislature or the judiciary, courts reserve immunity for decisions concerning public pol- icy, such as planning decisions, that involve the consideration and balancing of social, economic, and political factors by an 185 62 F.3d 196 (7th Cir. 1995). 186 Id. at 197. 187 Id. at 199. 188 Id. at 200. 189 Gary L. Gittings, Tort Liability and Risk Management, 113 J. Transp. Eng’g at 27 (Jan. 1987). 190 Id. at 28; Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 342 (2d ed. 2019). 191 Dan B. Dobbs et al., The Law of Torts § 342 (2d ed. 2019). 192 Vance, supra note 164, at 45. 193 Id. at 89 (citing Evangelical United Brethren Church of Adna v. State, 67 Wash. 2d 246, 407 P.2d 440 (1965) (recognizing the discretion- ary function exception in the State of Washington)).

18 NCHRP LRD 82 that it actually exercised its discretion by undergoing a delib- erative decision-making process.209 A highway plan may not be entitled to discretionary immunity where it lacks a reasonable basis, such as when the traffic or safety study on which it was based is “plainly inadequate.”210 In other words, where a State DOT is sued for negligent highway planning, the State DOT may have to make a prima facie showing that its plan was not negligent in order to qualify for immunity from liability for negligence. There is some authority indicating that, once the decision is made to construct a highway, discretion is at an end,211 as the “planning” process is complete and future activities (design, construction, and maintenance) are “operational.” However, a more nuanced view is that all of these activities involve some amount of discretion.212 There are cases in which the discretion- ary function exception has been applied to highway design (as discussed in the following section), construction permitting,213 and even maintenance decisions (such as whether to install protective devices or warning signs not included in the original design). 2. Design Highway design, like planning, is often considered to involve the exercise of discretion, warranting governmental immu- nity.214 In the years following waivers of sovereign immunity, few cases brought against highway agencies involved claims for negligent highway design.215 In most early cases that did involve negligent design claims, the courts failed to distinguish between planning and design, typically resulting in discretion- ary immunity for State DOTs and other highway authorities.216 The rationale for this outcome was sometimes expressed that design involves the application of engineering or scientific prin- ciples by educated professionals, whose decisions should not be second-guessed by the courts.217 However, over time, courts came to distinguish between the decision to construct a road, which involves social, economic, and political policy considerations, and the implementation 209 See, e.g., Iacone v. Passanisi, 133 A.D.3d 717, 718, 19 N.Y.S.3d 583, 584 (N.Y. App. Div. 2015). 210 See, e.g., Friedman v. State, 67 N.Y.2d 271, 284, 493 N.E.2d 893, 898 (1986). 211 Vance, supra note 164, at 20. 212 Id. at 21–22. 213 See, e.g., Richardson v. Salaam, 726 N.E.2d 888, 894–95 (Ind. Ct. App. 2000). 214 See, e.g., Vance, supra note 164, at 10 (“If there is one area of highway activity that may be thought to be generally immune as a pro- tected discretionary function, it is the area of design . . ..”). 215 Michael Tardif & Rob McKenna, Washington State’s 45-Year Experiment in Governmental Liability, 29 Seattle U. L. Rev. 1, 12 (2005) (“In the period after the waiver, all cases claiming liability for government highway functions concerned maintenance and signage issues. Not one case raised questions about design . . ..”). 216 Id.; see also Vaccaro, supra note 203, § 2[a]. 217 See, e.g., Donnelly v. Ives, 159 Conn. 163, 168, 268 A.2d 406, 409 (1970); Hughes v. Burlington Cty., 99 N.J. Super. 405, 412–13, 240 A.2d 177, 181 (1968). C. Application of Discretionary Immunity to State DOT Activities The discretionary immunity concept generally precludes tort liability for higher-level decision-making such as transportation policy and planning, but not for operational or ministerial ac- tivities such as highway maintenance or construction according to prescribed plans and specifications. This section examines how courts have evaluated discretionary immunity and liabil- ity for State DOT activities, in order from strongest to weakest immunity. 1. Transportation Planning As long as there has been a discretionary function exception to waivers of governmental immunity, courts have attempted to distinguish between “planning” activities, which involve the exercise of discretion, and “operational” activities that do not.202 Accordingly, activities related to transportation planning are the State DOT activities most likely to qualify for discretionary im- munity.203 For example, the decision to construct a highway, and decisions related to apportionment and allocation of funds for the project, the general location where the highway is to be built and the route to be followed, and the class of road to be con- structed (e.g., capacity and access considerations) are typically considered discretionary functions.204 These decisions involve balancing risks and advantages of different alternatives, based on considerations including available funds, safety, and traffic data.205 Thus, these highway planning decisions tend to involve social, economic, and political policy206 and are entitled to dis- cretionary immunity as long as the decision-maker is vested with the authority and discretion to make the decision.207 Where the plan to construct a highway is not ratified or ap- proved by the governing body or official vested with the discre- tionary authority to do so, the discretionary function exception does not apply to the plan.208 Even when the plan has been ap- proved by the appropriate governing body, discretionary immu- nity may not attach if the governing body cannot demonstrate 202 Dalehite v. United States, 346 U.S. 15, 42, 73 S. Ct. 956, 971, 97 L. Ed. 1427, 1444 (1953) (“The decisions held culpable were all responsi- bly made at a planning rather than operational level . . ..”). 203 Don F. Vaccaro, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising out of Vehicular Accident due to Negligent or Defective Design of a Highway, 45 A.L.R. 3d 875, §  2[a] (1972) (“Considerable authority exists for the proposition that the design and planning of highways involves governmental, legislative, or judicial functions and the exercise of discretionary powers, with the result that what may be regarded as traditional concepts of govern- mental immunity have been frequently applied to this ever-increasing problem in a highly mobile society.”). 204 Vance, supra note 164, at 12, 22-23. 205 Vaccaro, supra note 203, at § 2[a]. 206 Vance, supra note 164, at 21. 207 See, e.g., Turturro v. City of New York, 28 N.Y.3d 469, 479–80, 68 N.E.3d 693, 701 (2016); Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1075–76 (Fla. 1982). 208 See, e.g., City of Nashville v. Brown, 25 Tenn. App. 340, 347, 157 S.W.2d 612, 616–17 (1941).

NCHRP LRD 82 19 lines, as nonconformance would exceed the designer’s allowable discretion and would indicate that the design fails to meet the professional standard of care. It appears that, in order to qualify for discretionary immunity for negligent design, the State DOT may first have to make at least a prima facie showing that the design was not negligent. Where there is danger inherent in the design, the State DOT generally cannot avoid liability by approving the design as an exercise of its discretion. A number of courts have held that if the State DOT has knowledge of the inherent danger, its duty to maintain the highway in a reasonably safe condition for travel requires it to warn travelers of the dangerous condition, and failure to include adequate warning signs or other protective features in that situation could constitute negligent design.224 Even if the State DOT is unaware of the inherent danger at the time the design is approved, a design that is inherently danger- ous probably does not conform to the professional standard of care, resulting in liability for negligent design.225 Although courts often say that immunity has not been waived for high- way design,226 a State DOT would rarely be entitled to immunity from liability for personal injury or property damage caused by a design that failed to conform to the applicable standard of care at the time it was approved. 3. Construction Except for cases involving injuries in construction work zones,227 tort cases brought by injured highway travelers against State DOTs rarely involve allegations of negligent construction.228 Older cases evaluating liability for “negligent construction” typi- cally involve features such as dangerous curves and dangerous intersections and are more accurately categorized as negligent design cases.229 If design activities are subject to liability for negligence, then construction activities are more so, as highway construction must be performed according to detailed design drawings and specifications, leaving little room for discretion. Failure to construct the highway in accordance with the design could subject the State DOT and/or its construction contractor 224 See, e.g., Glazer v. State, 237 Ariz. 160, 167, 347 P.3d 1141, 1148 (2015) (denying immunity for dangerous condition inherent in design where State DOT failed to demonstrate that it had given adequate warning). 225 See, e.g., Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1077–78 (Fla. 1982). 226 See, e.g., Rutherford v. Chaves Cty., 132 N.M. 289, 291, 47 P.3d 448, 450 (Ct. App. 2002), aff’d, 133 N.M. 756, 69 P.3d 1199 (2003); Medina v. State, 35 P.3d 443, 457 (Colo. 2001). 227 See, e.g., Georgia Dep’t of Transp. v. Owens, 330 Ga. App. 123, 766 S.E.2d 569, 572 (2014) (involving negligence claim against Georgia DOT arising out of passenger vehicle collision with construction vehi- cle in interstate construction zone). 228 Vance, supra note 164, at 12 (“There is an absence of case law dealing squarely with the question whether construction, as such, con- stitutes a protected or unprotected activity.”). 229 See, e.g., Truhlar v. Borough of E. Paterson, 4 N.J. 490, 496–97, 73 A.2d 163, 166–67 (1950) (concluding that a municipality could not be liable for negligent construction of a highway absent “active wrongdoing”). of that policy decision, which must conform to a professional standard of care.218 It is now generally accepted that where the highway design fails to adhere to accepted design standards, the designer is acting outside of his or her permissible discretion, and therefore the discretionary function exception does not apply and the State DOT (or its design consultant) can be held liable for negligent design.219 Cases where the plaintiff ’s primary allegation is negligent highway design tend to involve serious injuries.220 Where the courts do recognize discretionary immunity for design, it is typically stated that, in order to qualify for design immunity, the State DOT must show both that the design was reasonable (i.e., that it conformed to the standard of care) and that the design was actually approved by the governing body with the discretion to do so.221 As with planning, the governing body must show that it actually exercised its discretion, which might be satisfied by showing that the governing body approved the plan upon the recommendation of a professional engineer who is capable of determining that the design satisfied appli- cable standards.222 Similarly, a State DOT’s adoption of design guidelines upon the recommendation of educated professionals may qualify for discretionary immunity as a policy decision, and a design’s conformance with the adopted standards may demonstrate that the design was reasonable.223 However, the State DOT would not be entitled to discretionary immunity for subsequent designs that fail to conform to the adopted guide- 218 See, e.g., Stewart v. State, 92 Wash. 2d 285, 294, 597 P.2d 101, 106–07 (1979) (“There was no showing by the State that it considered the risks and advantages of these particular designs, .  .  . taking into account .  .  . adopted standards, recognized engineering practices and whatever else was appropriate. . . . [N]egligent design should have been submitted to the jury.”); Andrus v. State, 541 P.2d 1117, 1120 (Utah 1975) (“The decision to build the highway and specifying its general location were discretionary functions, but the preparing of plans and specifications and the supervision of the manner in which the work was carried out cannot be labeled discretionary functions.”). 219 See, e.g., Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 679, 570 S.E.2d 1, 11 (2002) (“[T]he issue of design malpractice waived sover- eign immunity, which included the failure to require that a traffic con- trol device be installed . . ., and which proved DOT committed design malpractice.”). See also Tardif & McKenna, supra note 215, at 40 (2005) (“While recent cases reduce some governmental liabilities, highway design liability remains broad.”). 220 Gary L. Gittings, Highway Elements Associated with Tort Liability Actions, 117 J. Transp. Eng’g 103, 107 (Jan.-Feb. 1991) (showing that negligent design was alleged to be a general contributing factor in approximately 10% of tort actions against PennDOT, increasing to approximately 20% of such tort actions involving serious injury); see also Gary L. Gittings, Tort Liability and Risk Management, 113 J. Transp. Eng’g 27, 31–32 (Jan. 1987) (showing that negligent design was alleged to be a general contributing factor in approximately 10% of tort actions against PennDOT, increasing to approximately 20% of tort actions involving serious injury). 221 See, e.g., Cornette v. Dep’t of Transp., 26 Cal. 4th 63, 80, 26 P.3d 332, 343, 109 Cal. Rptr. 2d 1, 14 (2001). 222 See, e.g., Paul v. Faricy, 228 Minn. 264, 277–78, 37 N.W.2d 427, 435 (1949). 223 See, e.g., Vanderbloom v. State, Agency of Transp., 200 Vt. 150, 156, 129 A.3d 665, 669 (2015).

20 NCHRP LRD 82 advantage of governmental immunity,234 because even the State DOT would not be entitled to immunity for negligent mainte- nance. Most tort actions against State DOTs involving injury to travelers allege negligent highway maintenance as the primary theory of recovery. For example, in 2013, in Little v. Mississippi Department of Transportation,235 the Mississippi Supreme Court concluded that the Mississippi DOT was not immune from suit for negli- gence where motorists collided with a tree that had fallen across a highway. The court concluded that, because the Mississippi DOT had a statutory duty to maintain and repair state high- ways, the duty was ministerial.236 Therefore, allegations that the Mississippi DOT had breached that duty were not covered by the discretionary function exception of the Mississippi Tort Claims Act (MTCA).237 In reaching that conclusion, the court expressly overturned a string of earlier decisions in which the courts had concluded that highway maintenance was subject to discretionary immunity because maintenance decisions involve economic and policy considerations.238 The dissent, relying on these earlier decisions, argued that “highway maintenance by [the Mississippi ]DOT involves policy and economic considerations through the exercise of [the Mississippi ]DOT’s discretion in determining which high- ways or roads should be repaired first and which maintenance issues are most important.”239 Acknowledging the Mississippi DOT’s statutory duty to provide “for the maintenance, repair, and inspection of all of the state-maintained state highway system,”240 the dissent opined that the statute gives discretion to the Mississippi DOT to perform that duty subject to its own “rules, regulations and orders.”241 The majority, however, noted that the MTCA retains immunity for “a discretionary func- tion or duty,”242 and distinguished between the function (in this case, highway maintenance) and the individual acts com- mitted in furtherance of that function.243 The individual acts might show that the Mississippi DOT was not negligent—e.g., that the Mississippi DOT promulgated “rules, regulations and orders” to carry out its duty to maintain, and that it prioritized and performed maintenance activities based on those rules, regulations, and orders, which may even involve policy and eco- nomic considerations. However, the determination of whether 234 See generally A.E. Korpela, Right of Contractor with Federal, State, or Local Public Body to Latter’s Immunity from Tort Liability, 9 A.L.R. 3d 382, § 2[a] (1966). 235 129 So. 3d 132 (Miss. 2013). 236 Id. at 138 (citing Miss. Code § 65-1-65). 237 Id. The MTCA is codified at Miss. Code §§ 11-46-1 to 11-46-23. Under the MTCA “a governmental entity and its employees are immune from liability for claims arising from the ‘exercise or performance or the failure to exercise or perform a discretionary function or duty[.]’” Id. at 141 (quoting Miss Code Ann. § 11-46-9(1)(d) (2012)). 238 Id.; see also id. at 140–41 (Waller, C.J., dissenting). 239 Id. at 142 (Waller, C.J., dissenting). 240 Id. at 141 (Waller, C.J., dissenting). 241 Id. 242 Id. at 136 (citing Miss. Code § 11-46-9(1)(d)). 243 Id. at 135. to liability if injuries result.230 Even in states recognizing some form of “design immunity,” failure to construct according to an approved, reasonable design would result in loss of immunity.231 By the same token, where the as-built highway conforms to the design, it can be argued that its construction was not negli- gent, warranting no liability for the State DOT or its construction contractor. Some older cases concluded that the construc- tion contractor was entitled to immunity as long as con struction was carried out pursuant to the design approved by the govern- ing body and under the direction and supervision of the gov- erning body, but the more accepted modern understanding is that the contractor simply is not negligent under those facts.232 Construction inspection records are typically available to dem- onstrate that the construction of the highway conforms to the design and to applicable standards and specifications, allowing the State DOT and its construction contractor to avoid liability for allegedly negligent construction even though the discretion- ary function exception does not apply. Liability could still arise for injury caused by a latent con- struction defect that escapes notice of the construction inspec- tors, such as poor compaction that ultimately results in degra- dation of the highway surface. However, negligent construction is rarely the proximate cause of injury to a traveler, as there is typically some intervening cause, such as the State DOT’s failure to make repairs given notice of the dangerous condition. Those situations are typically evaluated as negligent maintenance, as discussed in the following section. 4. Maintenance a. Routine Maintenance Even before there were widespread statutory waivers of im- munity, courts recognized a common law duty to maintain highways in a reasonably safe condition for travel, discussed in Section III.A. It is widely understood that this duty is not dis- cretionary, so a State DOT’s failure to maintain highways in a reasonably safe condition will almost never be entitled to im- munity. Courts typically hold that maintenance is a “ministe- rial” act to which the discretionary function exception does not apply.233 Thus, in cases where operations and maintenance responsibility for a state highway has been delegated to a pri- vate contractor (as in the case of a public-private partnership), there is no need to consider whether the contractor can take 230 See, e.g., Youmans v. South Carolina Dep’t of Transp., 380 S.C. 263, 670 S.E.2d 1 (2008) (holding South Carolina DOT liable in negli- gence due to failure to construct according to specifications). 231 Vance, supra note 164, at 12 (“In any case of departure from an immunized plan or design, nonimmunization would appear clearly to follow.”); see also Johnston v. Yolo Cty., 274 Cal. App. 2d 46, 54–55, 79 Cal. Rptr. 33, 39–40 (1969) (holding county was not entitled to design immunity where curves were not constructed according to approved design). 232 A.E. Korpela, Right of Contractor with Federal, State, or Local Public Body to Latter’s Immunity from Tort Liability, 9 A.L.R. 3d 382, § 2[a] (1966). 233 See, e.g., Lanning v. State Highway Comm’n, 515 P.2d 1355, 15 Or. App. 310 (1973).

NCHRP LRD 82 21 an accident resulted. If the warning signs or guardrails were not required by the original design or by standards at the time of de- sign, but a subsequent policy was adopted to add those features given the characteristics (sight distance, etc.) of the highway in question, then the State DOT could be liable for failing to main- tain the highway at the new safety standard, as long as the State DOT had adequate time to comply with the new policy.252 (2) Notice of dangerous condition. An exception to the above general rules is the existence of a dangerous condition about which the State DOT is deemed to have notice.253 Even where the highway has been maintained in the condition in which it was originally designed, notice of a dangerous condi- tion (e.g., a history of accidents at a particular location) could require the State DOT to upgrade the highway in order to sat- isfy its recognized duty to maintain the highway in a reasonably safe condition.254 A dangerous highway condition that is known to highway officials is often seen as prima facie violation of that duty. It is sometimes stated that where there is a known danger- ous condition, discretion is at an end.255 However, there are degrees of dangerous conditions, and all dangerous conditions (e.g., rock slopes) cannot be totally elimi- nated. In some situations, the dangerous condition can only be eliminated by a capital improvement such as reconstruction of a dangerous curve or intersection. In some situations, the State DOT may be able to satisfy its duty to maintain the highway in a reasonably safe condition by simply erecting warning signs or protective devices such as guardrails in addition to those fea- tures included in the original design.256 These measures, which might only mitigate the risk of the dangerous condition rather than totally eliminate it, may be reasonable if it is not economi- cally feasible to totally eliminate the dangerous condition. If a capital improvement is required to alleviate the dangerous con- dition, and funds are not available, the State DOT may have the obligation to close the road. b. Capital Maintenance The question naturally arises whether the social, economic, and political policy considerations involved with a decision to perform capital maintenance should be entitled to discretion- ary immunity. That is, given notice of a dangerous condition or other highway maintenance need, is a State DOT entitled to bal- 252 See, e.g., Mullins v. Wayne Cty., 16 Mich. App. 365, 375, 168 N.W.2d 246, 250 (1969). 253 See, e.g., Kappenman v. Klipfel, 765 N.W.2d 716, 723 (N.D. 2009) (“Several courts have held that discretionary function immunity does not shield governmental entities from failing to repair or warn against known hazards on roadways under their control because the failure to repair or warn against the dangerous condition does not involve the exercise of social, economic, or political policy.”). 254 See, e.g., Baldwin v. State of California, 6 Cal. 3d 424, 439, 491 P.2d 1121, 1131 (1972); Clary v. Polk Cty., 231 Or. 148, 155–56, 372 P.2d 524, 528 (1962); Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 915 (Mo. 2004). 255 Vance, supra note 164, at 20. 256 See, e.g., Kolitch v. Lindedahl, 100 N.J. 485, 497 A.2d 183 (1985) (holding that State DOT decision to post sign rather than make safety improvement is a policy decision entitled to discretionary immunity). the Mississippi DOT was negligent is different from whether it was immune. “If the function is ministerial, rather than discre- tionary, there is no immunity for the acts performed in further- ance of the function.”244 Because the state legislature imposed a statutory duty on the Mississippi DOT to maintain the state highways, the plaintiffs were entitled to pursue their claim that the Mississippi DOT’s alleged breach of that duty caused their damages. The Little court noted that if the legislature wanted to grant discretionary immunity for any specific acts within the ministe- rial highway maintenance function, it could have done so. For example, a Mississippi statute granted “local authorities discre- tion in placing and maintaining traffic devices” such as warning signs.245 By doing so, the state legislature “carved out a portion” of the ministerial highway maintenance function “and made it discretionary.”246 Thus, while the Mississippi DOT may have had discretionary immunity for failure to place warning signs, it was not entitled to immunity for allegedly failing to adequately maintain, repair, and inspect the highway. Where a highway is constructed in conformance with a reasonable, approved design, the duty to maintain generally re- quires the State DOT to maintain the highway at the level of service and safety at which it was originally designed or con- structed.247 There is typically no duty to upgrade the highway to a higher level of service or to conform to design or safety guide- lines that have changed since original construction.248 Reason- able maintenance does not require highways to constantly be state-of-the-art, in the absence of a specific policy decision to upgrade all highways to conform to a new standard.249 (1) Warning signs and protective devices. Tort plaintiffs will often allege that the State DOT failed to install adequate warning signs or failed to install adequate protective measures such as guardrails.250 If the warning signs or guardrails were not included in the original design, then the question is whether they were required by design standards in place at the time the highway was designed. If so, then the State DOT may be liable for negligent design; if not, the absence of the signs or guard- rails probably does not pose liability in the form of either negli- gent design or negligent maintenance.251 If the warning signs or guardrails were included as part of the original design and con- struction, but deteriorated or went missing over time, then the State DOT could be liable for failing to maintain those features if 244 Id. at 136 (emphasis supplied). 245 Id. at 137 (citing Miss. Code § 63-3-305). 246 Id. 247 Medina v. State, 35 P.3d 443, 457 (Colo. 2001). 248 Id. at 457–58. 249 Vance, supra note 164, at 17. See also Hanson v. Bd. of Cty. Road Comm’rs of Cty. of Mecosta, 465 Mich. 492, 502–03, 638 N.W.2d 396, 402 (2002); Kaufman v. State, 27 A.D.2d 587, 588, 275 N.Y.S.2d 757, 758 (1966). 250 Vance, supra note 164, at 13–14. 251 See, e.g., Warda v. State, 45 Misc. 2d 385, 387, 256 N.Y.S.2d 1007 (Ct. Cl. 1964).

22 NCHRP LRD 82 As to the county, the Oregon Court of Appeals affirmed summary judgment.263 The county sought immunity on the basis of a “safety audit” authorized by its public works director “under his delegated authority to establish program priorities and resource allocation.”264 The safety audit was used to pri- oritize projects based on a number of factors including “lim- ited sight distance” and “appropriate signage.”265 The county road received an “okay” rating, which was a “low priority,” and it was decided not to under take improvements to the county road given the “limited County road budget.”266 Based on these facts, the Oregon Court of Appeals affirmed that the county was entitled to discretionary immunity because the public works director, “through the safety audit, made discretionary choices about the priority of transportation improvements of the types at issue (road improvements, signage, other traffic controls), and that policy was implemented by a person with authority to do so.”267 Therefore, although it failed to make any of the safety improvements identified by the plaintiff, the county was im- munized by the discretionary function exception because it was able to show that it decided to do nothing based on weighing the costs and benefits. Similarly, the city sought discretionary immunity on the basis of its adoption of a Transportation System Plan (TSP), which recognized that the intersection was “hazardous,” assigned it a “medium” priority, and proposed a $400,000 re- construction project, identifying the Oregon DOT’s STIP as a potential source of funding for the project.268 However, the city did not present any evidence indicating that it took any action to initiate the project or “to avoid or delay the improvement project.”269 There was no evidence that the failure to improve the intersection was the result of a conscious policy decision by the city, and merely adopting the TSP but not acting on it was insuf- ficient to confer discretionary immunity. Likewise, there was no evidence that the city’s failure to take less substantial action to mitigate the hazard (e.g., through warning signs or restricting parking) was the result of a discretionary decision made by the city.270 Therefore, the city had not demonstrated that it made a policy decision that entitled it to discretionary immunity, and the Oregon Court of Appeals reversed summary judgment as to the city. Likewise, the Oregon DOT sought discretionary immunity based on its adoption of the STIP, a capital improvement plan that “determines the prioritization, funding, and scheduling of state transportation projects and programs over a four-year period.”271 An affidavit from an Oregon DOT engineer ex- plained that it was Oregon DOT policy to include line-of-sight 263 Turner, 270 Or. App. at 371, 348 P.3d at 264. 264 Id. 265 Id. 266 Id. 267 Id. 268 Id. at 368–69, 348 P.3d at 263. 269 Id. at 370, 348 P.3d at 264. 270 Id. 271 Id. at 365, 348 P.3d at 261. ance the risks and advantages of deferring capital improvements against the economic impact of either improving or closing the road? Where there is personal injury or property damage due to a dangerous condition on the highway, the plaintiff will typi- cally allege negligent highway maintenance. The State DOT, on the other hand, will contend that its decision to defer mainte- nance was the result of policy—i.e., demonstrate that there are limited resources to devote to maintenance, and those resources were allocated as a result of rational, informed judgment—in an effort to qualify for discretionary immunity. Particularly in the case of deferred capital maintenance, State DOTs increas- ingly point to highway project ranking systems such as STIPs to demonstrate that funds were rationally allocated toward higher priority projects, warranting discretionary immunity. This ar- gument deserves examination here, considering the similarity between highway project ranking systems and unstable slope management programs. In Turner v. State ex rel. Department of Transportation,257 the Oregon appellate courts considered the role of highway project ranking systems in determining whether the discretionary function exception applied to the failure to upgrade dangerous roads. The plaintiff in Turner was a motorcyclist injured at the intersection of a state highway and a county road in the city of Depoe Bay.258 The plaintiff sued the state, county, and city for negligence, alleging that the highway failed to conform to ad- ministrative regulations related to sight distance and parking, and that the government entities failed to post adequate warn- ing signs regarding the dangerous intersection.259 The govern- ment entities moved for summary judgment on the grounds of discretionary immunity, arguing that “the design and construc- tion of the intersection” (including decisions involving “park- ing, traffic controls, and signage” at the intersection), as well as their “failure to modify those features were discretionary deci- sions that were immune from liability.”260 The trial court granted summary judgment to the government entities, and the plaintiff appealed.261 It is unclear when the roads and the intersection were con- structed, and whether they failed to conform to applicable ad- ministrative regulations or design standards at the time they were constructed, although an Oregon DOT memo more than a decade before the plaintiff ’s accident indicated “that there was a significant accident history at the intersection.”262 Rather than consider whether the original design of the intersection was en- titled to discretionary immunity, the Oregon Court of Appeals focused instead on whether the government entities were en- titled to discretionary immunity for failing to undertake action to improve the safety of the intersection. 257 270 Or. App. 353, 348 P.3d 253 (2015), aff’d, 359 Or. 644, 375 P.3d 508 (2016). 258 Id. at 355, 348 P.3d at 255. 259 Id. at 356–57, 348 P.3d at 256. 260 Id. at 357, 348 P.3d at 257. 261 Id. at 358, 348 P.3d at 257. 262 Turner v. State, 359 Or. 644, 647, 375 P.3d 508, 511 (2016).

NCHRP LRD 82 23 duty given a dangerous condition of a state highway.279 The court thus left open the possibility that a policy decision to im- plement a ranking system for improvements might be entitled to discretionary immunity if the State DOT strictly adheres to that policy. In Avellaneda v. State,280 the Washington Court of Appeals considered the impact of highway project ranking systems on discretionary immunity. Avellaneda involved an injury to motor- ists due to vehicles traveling in the opposite direction crossing the median on a stretch of highway that did not have a cable barrier in the median.281 The opinion does not address whether the original design of the highway without a cable barrier was entitled to discretionary immunity. In 2001, after the construc- tion of the highway, the Washington State DOT design manual was amended to recommend the use of median barriers.282 Rather than immediately retrofit all highways to conform to the new design guidelines, the Washington State DOT “distributed guidelines to its regional offices instructing them how to cal- culate benefit/cost ratios to determine the priority of potential median barrier projects,”283 consistent with the Washington stat- utory requirement for the Washington State DOT “to rationally allocate funding based on the relative priority of projects.”284 The benefit-cost ratio for the highway in question was initially cal- culated as zero, and thus it was not one of the higher priority median barrier projects for which the Washington State DOT initially requested funding in 2003.285 In 2004, the Washington State DOT adjusted its benefit-cost calculations, and there after the highway in question was ranked the ninth highest prior- ity for cable barrier projects.286 The Washington State DOT re- quested funding for the project in 2004, which was approved in 2005.287 As of summer 2006, when the plaintiff ’s accident oc- curred, the improvement project had been designed and sub- mitted for construction bids, but the cable barrier had not yet been installed.288 The plaintiffs sued the state for negligence due to the failure to install a cable barrier before summer 2006, but the trial court granted summary judgment to the state on the basis of dis- cretionary immunity.289 The Washington Court of Appeals af- firmed, concluding that the timing decision on the cable barrier retrofit process was a permissible exercise of the Washington State DOT’s discretion, and a “conscious balancing of risks and advantages,”290 by which higher priority cable barrier projects were performed first. In reaching this conclusion, the court 279 Id. at 659. 280 167 Wash. App. 474, 273 P.3d 477 (2012). 281 Id. at 476, 273 P.3d at 478. 282 Id. 283 Id. at 477, 273 P.3d at 478. 284 Id. 285 Id. 286 Id. 287 Id. at 478, 273 P.3d at 479. 288 Id. 289 Id. 290 Id. at 481, 273 P.3d at 480. improvements in the STIP for the worst 5% of intersection sites based primarily on crash history, “as well as other high accident rated sites based on a cost/benefit analysis.”272 The intersection in question was not in the worst 5% of sites based on crash history and was not otherwise considered “a high accident site,” and thus “the state did not consider or authorize any improve- ment to Highway 101 at or near the Collins Street intersection in the STIP.”273 Because line-of-sight improvements at the inter- section were not included in the STIP, the Oregon DOT did not actually consider line-of-sight improvements at the intersection, so it had not actually made a decision qualifying for discretion- ary immunity. Mere adoption of the STIP process for capital improvement projects was insufficient to immunize the Oregon DOT. Further, there was no evidence that the Oregon DOT had considered less substantial improvements, such as installing warning signs or restricting parking.274 Therefore, the Oregon DOT had not demonstrated that it made a policy decision that entitled it to discretionary immunity, and the Oregon Court of Appeals reversed summary judgment as to the Oregon DOT. The Oregon DOT petitioned the Supreme Court of Oregon for discretionary review, arguing that although it did not specifi- cally consider improvements to the intersection as part of the STIP process, that was the result of a high-level policy decision to focus its limited highway safety improvement funds to sites based on their danger rating, as measured by crash history. The Oregon DOT argued that “when a state agency uses a global process for setting priorities and allocating limited resources, discretionary-function immunity attaches and the agency need not engage in further, particularized decision-making.”275 The Supreme Court of Oregon rejected that argument because the factual record at summary judgment indicated that, regardless of crash data, the Oregon DOT was aware that the intersection was hazardous, and there were multiple ways to fund safety improvements (including less substantial improvements such as parking changes and signage) that did not require the site to have a high ranking based on crash history.276 The Oregon Supreme Court thus determined that the facts did not support the Oregon DOT’s argument that safety im- provements to the intersection were eliminated by its policy decision to adopt the STIP process, and affirmed the conclu- sion of the Oregon Court of Appeals that the Oregon DOT was not entitled to discretionary immunity.277 The Turner court did not reach the plaintiff ’s argument that “the state has a non- discretionary duty to make state-owned highways reasonably safe for members of the public who use them in a manner that is consistent with their purpose”278 and that therefore the Oregon DOT could not rely on discretionary immunity to avoid that 272 Id. at 366, 348 P.3d at 261. 273 Id. 274 Id. at 367–68, 348 P.3d at 262. 275 Turner v. State ex rel. Dep’t of Transp., 359 Or. at 646, 375 P.3d at 510. 276 Id. at 659, 375 P.3d at 517–18. 277 Id. at 664, 375 P.3d at 520. 278 Id. at 658, 375 P.3d at 517.

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 Potential Liability Associated with Unstable Slope Management Programs
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Slope failures pose serious risks for state transportation agencies and federal agencies that own or maintain roads, highways, and/or adjacent property. Many transportation agencies have adopted unstable slope management programs and standards as part of a larger effort to provide an efficient and effective methodology to prevent or control landslides or rockfalls.

The TRB National Cooperative Highway Research Program's NCHRP LRD 82: Potential Liability Associated with Unstable Slope Management Programs provides a detailed description of several specific unstable slope management programs, including the type of data collected and rating systems that are utilized.

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