Potential Liability Associated with Unstable Slope Management Programs (2020)

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34 NCHRP LRD 82 planned approach to deal with rockfall sites as funds were made available, litigations brought against the state because of rockfall accidents were either settled out of court or findings favorable to the state resulted.”432 One reason for evolving the priority list into the RHRS was that the Oregon DOT’s “legal counsel recognized the value of having a systematic way to set rockfall project priorities and allocate the limited repair funds”433 and believed “that greater legal protection is afforded the agency by having the RHRS in place.”434 In 1993, while acknowledging that the RHRS had not yet been “tested in court,” and again without citing any legal authority, the developers of the Oregon DOT RHRS wrote: The courts have indicated that it is unreasonable to expect an agency to have at its disposal enough funds to deal with all safety related issues at any given time. However, a system must be in place by which needed safety projects, including rockfall remediation projects, can be identified and developed as funding is made available. [The Oregon ]DOT’s experience has indicated that this position is legally defensible.435 As other State DOTs subsequently adopted the RHRS or im- plemented their own unstable slope management programs, the oft-stated rationale was that the programs would help the State DOT avoid liability for slope failure. In 2002, researchers for the Utah DOT wrote that, as a result of developing its own rock- fall hazard inventory based on the RHRS, “liability of the Utah Department of Transportation will become reduced for rock- fall asso ciated lawsuits.”436 In 2003, a Tennessee DOT employee wrote that the Tennessee DOT had developed its own rockfall database based on the RHRS in order to “[p]rovide a reduction of liability,” as the Tennessee DOT had “been under increased risk of litigation and high damages because no consistent policy has been in place for dealing with rockfall.”437 In 2004, the devel- oper of the rockfall hazard rating matrix for the Ohio DOT re- ported that the matrix would help the Ohio DOT in “addressing legal issues of slope safety.”438 In 2005, after developing a rockfall hazard classification and mitigation system based on the RHRS for the Montana DOT, the developer reported to FHWA and the Montana DOT that it had “accomplished” its goal of “limit[ing] the Department’s rockfall litigation exposure. . . . Reduction of liability exposure is realized through the completion of a rec- ognized rockfall rating and mitigation system.”439 As recently as 2017, the developers of an FHWA-sponsored unstable slope management program for federal land management agencies, without citing any legal authority, advised its users that “State DOT’s [sic] proactively using an Unstable Slope Asset Man- 432 Id. 433 Id. at 6. 434 Id. at 13. 435 RHRS Manual, supra note 29, at 6. 436 Robert T. Passck & Ken Boie, Utah Rockfall Hazards Inventory, Utah DOT Rep. No. UT-03.01, 2 (2002). 437 Bateman, supra note 22. 438 Woodard, supra note 6, at 2, 6. 439 Lawrence A. Pierson, Darren L. Beckstrand & Brent A. Black, Rockfall Hazard Classification and Mitigation Sys- tem, Rep. No. FHWA/MT-050-011/8176, 28 (Sept. 2005). drainage system in question as part of its capital improvement plan or budgeting process.428 “The doctrine of discretionary im- munity does not immunize a decision not to exercise care at all, if action of some kind is required.”429 Furthermore, the decision of the maintenance staff to address the erosion by filling the hole with asphalt debris “was a routine decision made by employees in the course of their day-to-day activities. Such decisions do not qualify for discretionary immunity.”430 Cases such as Vokoun, involving slope failures arising out of decisions to defer capital maintenance projects, are highly rel- evant to unstable slope management programs. Unstable slope management programs typically identify slopes at risk of fail- ure and in need of mitigation. Where inventoried slopes fail, resulting in personal injury or property damage, a prominent question is whether the unstable slope management program helps the State DOT avoid liability, or whether it contributes to liability. Was the State DOT’s decision to defer slope mitigation entitled to discretionary immunity, or was the State DOT negli- gent in failing to mitigate the slope, given its slope hazard prior- ity ranking? This is examined in Section V. V. UNSTABLE SLOPE MANAGEMENT PROGRAMS AND LIABILITY A. Intent of Programs to Reduce Liability The primary purpose of unstable slope management pro- grams is to reduce the risk of personal injury or property dam- age due to slope failures, as the slope hazard priority rankings help State DOTs identify the most at-risk slopes, so that limited resources can be allocated where they will be most effective at preventing an event that could result in liability. A secondary purpose of unstable slope management programs is to help the State DOT avoid liability in the event that there is personal in- jury or property damage due to slope failure. It is hoped that the slope hazard priority rankings and benefit-cost decision- making features of the unstable slope management programs will allow State DOTs to take advantage of the discretionary function exception for decisions to defer remediation of the slope in question, or otherwise constitute evidence that the State DOT’s decision to defer slope remediation was not negligent. This secondary purpose of unstable slope management programs—to help State DOTs avoid liability in the event of a highway slope failure—was expressly recognized when the programs were first developed in the early 1990s. The Oregon DOT RHRS was an outgrowth, in part, of the Oregon DOT’s pre-existing “priority list for developing rockfall construction projects,” which contained about one hundred slopes with a his- tory of rockfall, prioritized according to a benefit-cost analysis.431 Without citing any specific court cases, the RHRS devel opers stated in 1991 that, because the Oregon DOT “had a definite, 428 Id. at 22, 56 P.3d at 398. 429 Id. at 31, 56 P.3d at 403 (quoting Garrison v. Deschutes Cty., 334 Or. 264, 274, 48 P.3d 807 (2002)). 430 Id. at 33, 56 P.3d at 404. 431 Pierson, supra note 1, at 13.

NCHRP LRD 82 35 by decision-makers to prioritize slope remediation projects, that could demonstrate that the State DOT is negligent or at least that it has failed to exercise its discretion, so that it is not immu- nized by the discretionary function exception. The remainder of this section examines the reported case law involving unstable slope management programs, to con- sider whether there is legal support for the contention that the programs help State DOTs avoid tort liability for highway slope failures. It will be seen that, although plaintiffs do attempt to use unstable slope management programs to demonstrate neg- ligence by State DOTs, the programs rarely contribute to State DOT liability. It will also be seen that, although unstable slope management programs do help State DOTs avoid liability for decisions to defer capital slope remediation projects, the pro- grams do not relieve State DOTs of their duty to perform rou- tine highway maintenance for the safety of the traveler. B. Use of Unstable Slope Management Programs to Avoid Liability Although unstable slope management programs were in- tended, in part, to help State DOTs avoid tort liability for high- way slope failure, there are only a handful of reported court cases in which unstable slope management programs are con- sidered at any length by the court. The cases are examined in this section. As discussed previously in this digest, highway project selection is widely understood to be a policy-making ac- tivity entitled to discretionary immunity, and the cases generally support the notion that unstable slope management programs (with their hazard priority rankings and benefit-cost decision- making support) qualify for the discretionary function excep- tion to the extent they are used to evaluate capital projects such as extensive remediation of hazardous slopes or road relocation. However, it is widely understood that the discretionary function exception does not extend to a State DOT’s duty to maintain the highway in a reasonably safe condition for travel, and accord- ingly the cases generally do not excuse a State DOT’s negligent failure to perform routine maintenance of highway slopes even when the slope in question is not a high priority under the State DOT’s unstable slope management program. 1. Cases Finding Broad Immunity Like the highway project ranking systems discussed in Sec- tion III.C.4.b, an unstable slope management program that in- cludes priority rankings of slope hazards and benefit-cost deci- sion-making tools may be used to argue that the State DOT is entitled to discretionary immunity when an accident results as an alleged result of deferred slope remediation. This strategy has been most successful in the Washington state courts, in cases involving the Washington State DOT USMS. In 2014, in Helm v. State, Department of Transportation,447 the USMS appeared to be the primary factor enabling the Washington State DOT to avoid liability for a broad array 447 184 Wash. App. 1010, No. 71664-6-1 (Oct. 20, 2014), available at https://www.courts.wa.gov/opinions/pdf/716646.pdf. agement Program have been better protected through ‘Discre- tionary Immunity’ decisions than those that don’t have one.”440 However, in the survey of State DOTs conducted in conjunction with this digest (reproduced in Appendix  B), no State DOTs responding to the survey identified any court cases or other legal claims in which the State DOT’s unstable slope manage- ment program was used to support the legal position of the State DOT. While unstable slope management programs are rational- ized as helping State DOTs avoid liability, the programs also have the potential to be used by plaintiffs to demonstrate liability by State DOTs.441 Plaintiffs may use the programs to argue that the State DOT had advance knowledge of a slope failure hazard, or that the State DOT unreasonably failed to undertake a mitiga- tion measure with a favorable benefit-cost ratio. Sometimes the slope hazard priority rankings or benefit-cost calculations ex- pressly account for factors such as lawsuit potential,442 accident history,443 and expected costs of legal settlements,444 which could make the State DOT’s decision to defer slope remediation seem less like a rational allocation of limited resources and more like a calculated recognition of the risk of a lawsuit. And although developers of unstable slope management programs tout the lack of bias in the ranking systems as being helpful to State DOTs in slope failure litigation,445 the reality is that there is a good deal of subjectivity in a number of the individual category scores that make up a slope hazard priority ranking, making the rankings subject to legal challenge.446 If a State DOT adopts an unstable slope management program but the program is not actually used 440 Western Transportation Institute, Unstable Slope Man- agement Program for FLMAs, at 44 (Jun. 2017), available at https:// westerntransportationinstitute.org/wp-content/uploads/2017/08/Part- 1-USMP-Program-Intro-and-Slope-Rating-Background-History.pdf. 441 Beckstrand et al., supra note 6, at 31 (“A concern is some- times expressed that gathering of risk-related data could potentially have liability consequences, in that it might increase the agency’s responsibility with regard to risk management.”). 442 See, e.g., Ho & Norton, supra note 41, at 67–68 (considering risk of personal injury or property damage in the Washington State DOT USMS slope hazard priority ranking). 443 Huang et al., supra note 66, at 8 (“A fatality receives a score of 100 due to the liability associated with such a severe consequence.”). 444 Beckstrand et al., supra note 6, at 22. 445 Lawrence A. Pierson, Darren L. Beckstrand & Brent A. Black, Rockfall Hazard Classification and Mitigation System for the MDT, Rep. No. FHWA/MT-05-011/8174, 16 (2005) (“Elimi- nating such outside influences protects the validity of the ranking infor- mation for making informed decisions. This could be especially impor- tant if MDT’s rockfall mitigation program was called into question as part of a litigation case.”). 446 Darren Beckstrand, Darren Beckstrand, David Stanley, Paul Thompson, Eric Bilderback, Mike Wittle, Upulee Kanewala, Eli Cuelho & Douglas Anderson, Unstable Slope Management Program for Federal Land Management — Agencies, FHWA Rep. No. FHWA-FLH-18-00x, 21 (2017) (“If an unstable slope event causes injury and litigation follows, some of the legal benefits may not be realized if the work is not checked and veri- fied by experienced geotechnical staff.”), available at https:// westerntransportationinstitute.org/wp- content/uploads/2018/02/ USMP-Field-Manual_Final_ Website_Draft_Jan2018.pdf.

36 NCHRP LRD 82 tion, there were a number of slopes with a higher hazard prior- ity ranking.458 Mr. Badger declared that the Washington State DOT elected to defer remediation of Slope 1867 until a planned future construction project that involved relocation of a portion of I-90, during which Slope 1867 would be eliminated.459 Upon hearing the Washington State DOT’s motion for sum- mary judgment, the trial court found “that the USMS as a system qualified for discretionary immunity,”460 so that slope remedia- tion decisions based on the USMS could be entitled to the dis- cretionary function exception. However, the trial court denied the Washington State DOT’s motion for summary judgment, as there was not sufficient factual background to determine whether the Washington State DOT had actually performed a benefit-cost analysis, balancing the risks and advantages of de- ferring remediation of Slope 1867.461 Therefore, it would be for the jury to determine whether the Washington State DOT had actually exercised its discretion in deciding to defer slope remediation. At trial, Mr. Badger testified that the catchment ditch for Slope 1867 was too narrow, but that widening it would require relocating the highway or excavating part of the slope.462 Mr. Badger testified about the role of the USMS and how it was used by Washington State DOT geologists under his direction to pri- oritize slope remediation projects, and specifically in the deci- sion to defer remediation of Slope 1867 until the relocation of I-90 in 2014 or later.463 The plaintiff effectively conceded that the decision to defer full remediation of Slope 1867 was within the Washington State DOT’s discretion, and instead attempted to argue that the Washington State DOT should have undertaken lesser mitigation measures including routine ditch maintenance or installing interim protective devices.464 The plaintiff attempt- ed to elicit testimony regarding appropriate maintenance or interim protective measures from its expert witness, a profes- sional engineer with 40 years’ highway engineering experience (25 years as a an employee of the Washington State DOT).465 However, relying on Mr. Badger’s declaration that slope reme- diation decisions are made by geologists, the Washington State DOT moved to exclude the plaintiff ’s engineering expert from testifying as to any maintenance or protective measures involv- ing the slope, suggesting that such testimony would constitute the unlicensed practice of geology. 458 Helm, 184 Wash. App. 1010, at *1. 459 Id. See also Respondent’s Brief, supra note 452, at 7. 460 Helm, 184 Wash. App. 1010, at *2. 461 Id. See also Respondent’s Brief, supra note 452, at 9. 462 Reply Brief of Appellant, Helm v. State, Dep’t of Transp., No. 437151II, at  19 (Wash. App. Jan.  6, 2014), available at https://www. courts.wa.gov/content/Briefs/A02/447151-Reply%20Brief.pdf [herein- after Reply Brief]. 463 Helm, 184 Wash. App. 1010, at *2–3. See also Respondent’s Brief, supra note 452, at 31. 464 Appellant’s Brief, supra note 449, at 11. 465 Helm, 184 Wash. App. 1010, at *2. See also Appellant’s Brief, supra note 449, at 15, 24. of alleged negligent acts, ranging from deferred slope reme- diation to inadequate routine maintenance to failure to warn, with respect to personal injury resulting from a 2006 rockfall on I-90. The rockfall that resulted in the plaintiff ’s injury took place at “Slope 1867,” one of 3000+ slopes incorporated into the USMS, which extended from mileposts 58.15 to 58.33 along I-90 through Snoqualmie Pass.448 The night before the plain- tiff ’s accident, via a computer-aided dispatch (CAD) log, the Washington State Patrol reported to the Washington State DOT a small rockslide located on I-90 at approximately milepost 58.449 Fifteen hours later, at 9:47 a.m. on the morning of the accident, the Washington State Patrol reported to the Washington State DOT that there was rock in the road “between mileposts 57 and 58 on I-90.”450 Four minutes later, at 9:51 a.m., the Washington State DOT received a report of the plaintiff ’s disabled vehicle at approximately milepost 58.451 The plaintiff testified at trial that she collided with a rock at milepost 58.2.452 Only after the plain- tiff collided with a rock in the road did the Washington State DOT place a warning message on its variable message sign.453 In 2009, the plaintiff sued the Washington State DOT for negligence, alleging that the Washington State DOT “failed to properly maintain I-90 near milepost 58” and also that the Washington State DOT “failed to warn motorists about rockfall.”454 The Washington State DOT moved for summary judgment as to all of plaintiff ’s negligence claims, arguing that its use of the USMS entitled it to discretionary immu nity.455 The Washington State DOT’s summary judgment motion was supported by the declaration of Washington State DOT’s Chief Geologist Tom Badger, who explained that the Washington State DOT uses the USMS to prioritize slope remediation projects given limited funding. In its most recent evaluation in 2005, Slope 1867 scored 351 points456 on the USMS scale of 33 (repre- senting a minimum score of 3 points for each of the 11 USMS categories) to 891 (representing a maximum score of 81 points for each of the 11 USMS categories). Slope 1867’s score of 351 included the maximum 81 points for the “rockfall frequency” category.457 Although Slope  1867 posed a significant rockfall hazard, and scored slightly above the 350 points required by the Washington State DOT to qualify for full slope remedia- 448 Id. at *1. 449 Appellant’s Brief, Helm v. State, Department of Transportation, No. 43715-1-II, 8, 32 (Wash. App. Sept. 20, 2013), available at https:// www.courts.wa.gov/content/Briefs/A02/447151-Appellant’s%20Brief. pdf [hereinafter Appellant’s Brief]. 450 Id. at 34. 451 Id. 452 Respondent’s Brief, Helm v. State, Dep’t of Transp., No. 44715- 1-II, at 39 (Wash. App. Dec. 2, 2013), available at https://www.courts. wa.gov/content/Briefs/A02/447151-Respondent’s%20Brief.pdf [here- inafter Respondent’s Brief]. 453 Appellant’s Brief, supra note 449, at 33. 454 Helm, 184 Wash. App. 1010, at *1. See also Appellant’s Brief, supra note 449, at 9. 455 Helm, 184 Wash. App. 1010, at *2. 456 Id. at *1. 457 Appellant’s Brief, supra note 449, at 7.

NCHRP LRD 82 37 was thus effectively prevented from eliciting testimony from either expert witness regarding potential protective devices or other mitigation measures that could have been used on the slope itself. Evidentiary rulings such as excluding the 2005 report also handicapped the plaintiff ’s argument that the Washington State DOT had notice of a dangerous condition at Slope  1867 and should have taken action to warn travelers. On the Washington State DOT’s motion, the trial court excluded from evidence the CAD report of a rockfall near milepost 58, 15 hours prior to the plaintiff ’s accident.474 The trial court deemed the CAD report unfairly prejudicial because it did not clearly identify whether the rockfall 15 hours before the accident was from Slope 1867, and it was unclear whether the location (approximately mile- post 58) was the same location as the accident (approximately milepost 58.21).475 By excluding evidence of the CAD report from 15 hours before the accident, the Washington State DOT was able to argue to the jury that it only had 4 minutes’ notice of the rockfall prior to the accident.476 If the Washington State DOT could have been charged with 15 hours’ (rather than 4 minutes’) notice of a dangerous condition, it would likely not have been able to rely on discretionary immunity. The jury instructions included an instruction that the Washington State DOT’s use of the USMS “involves a basic gov- ernmental policy” (namely, “prioritization” of slope hazards), and that the Washington State DOT “is immune from liability for decisions in which it is determining basic governmental policy.”477 The verdict form asked whether the Washington State DOT “balanced the risks and advantages of delaying remedia- tion of slope 1867,” to which the jury responded “Yes,” indicat- ing that the Washington State DOT was entitled to discretionary immunity for its decisions regarding slope remediation.478 The verdict form next asked whether the Washington State DOT was otherwise negligent (“[a]part from its decisions regard- ing slope remediation”), to which the jury responded “No.”479 Therefore, the Washington State DOT had no liability for the plaintiff ’s injuries. The plaintiff appealed, contending that the jury instructions were confusing, in that it was unclear what “slope remediation” activities qualified for discretionary immunity. Because the plaintiff did not contest the Washington State DOT’s discre- tion to delay full remediation of Slope  1867, the plaintiff ar- gued that the discretionary immunity instruction should not have been given. Moreover, given the trial court’s broad defi- nition of “slope remediation” in the written order allowing the Washington State DOT’s motion in limine, the plaintiff argued that jurors may have been confused into believing that, because the Washington State DOT balanced the risks and benefits of deferring full remediation of Slope 1867, it was entitled to dis- 474 Helm, 184 Wash. App. 1010, at *7. 475 Id. See also Respondent’s Brief, supra note 452, at 38–39. 476 Reply Brief, supra note 462, at 12. 477 Helm, 184 Wash. App. 1010, at *5. 478 Id. 479 Id. In its written order restricting the plaintiff ’s expert witness from testifying about slope remediation, at the request of the Washington State DOT and over the plaintiff ’s objections, the trial court defined slope remediation broadly as “work that relates to the slope,” specifically including rock scaling and “protective devices such as rock screens and cable netting”466— measures typically understood to fall short of the full slope re- mediation measures (i.e., excavation or relocation) about which Mr.  Badger testified. Recall that under the Washington State DOT’s USMS procedure, slope remediation refers to “a com- prehensive (i.e., 20-year design life) treatment”467—not rock scaling and protective devices. The much broader definition of slope remediation used by the trial court was likely a signifi- cant factor in the outcome of the Helm case. It prevented the plaintiff ’s engineering expert from testifying about anything in- volving the slope, effectively limiting his testimony to potential safety measures such as concrete barriers on the road surface itself.468 Perhaps more significantly, the trial court’s definition of slope remediation effectively extended discretionary immunity to all “work that relates to the slope,” such as rock scaling or protective devices installed on the slope itself, as the trial court had previously ruled at summary judgment that the decision to defer slope remediation based on the USMS would be entitled to discretionary immunity if a benefit-cost analysis was actually performed.469 It is unclear that such lesser mitigation measures had even been considered by the trial court at the time of its summary judgment ruling. This was one in a series of questionable and potentially im- pactful evidentiary rulings made by the trial court in favor of the Washington State DOT. When the plaintiffs attempted to introduce into evidence a 2005 report on slopes along I-90 in Snoqualmie Pass authored by Mr.  Badger (which described Slope 1867 as “high risk” and “high hazard”470), the Washington State DOT opposed it on the grounds that potential mitiga- tion measures documented in the report, such as rock fences used on other slopes, would be prejudicial to the Washington State DOT.471 The trial court agreed, stating that the jury was not qualified to determine whether protective devices and other mitigation measures used on other slopes would have been ap- propriate on Slope  1867, although a licensed geologist could testify about that.472 However, when the plaintiff attempted to elicit testimony from Mr. Badger about these potential mitiga- tion measures, and he professed to not recall the contents of his 2005 report, the trial court refused to allow the plaintiff to use the report to refresh Mr. Badger’s recollection.473 The plaintiff 466 Helm, 184 Wash.  App.  1010, at *6. See also Appellant’s Brief, supra note 449, at 13. 467 Washington State DOT USMP, supra note 4. 468 Helm, 184 Wash. App. 1010, at *6. 469 Id. at *2. 470 Id. at *8. See also Appellant’s Brief, supra note 449, at 1, 37. 471 Helm, 184 Wash. App. 1010, at *7. 472 Id. See also Reply Brief, supra note 462, at 19. 473 Helm, 184 Wash. App. 1010, at *8. See also Reply Brief, supra note 462, at 20.

38 NCHRP LRD 82 management decisions are not negligent to the extent the dis- cretionary function exception does not apply. In 2015, in Pszonka v. Snohomish County,484 the Washington State DOT employed a similar litigation strategy involving a declaration from Mr. Badger regarding the USMS, but instead of seeking discretionary immunity, Mr.  Badger’s declaration was used to obtain a concession from the plaintiffs that the Washington State DOT did not negligently maintain its high- way slopes. Pszonka involved the consolidated claims of indi- viduals injured in the March 2014 Oso landslide, one of “the most destructive landslides in United States history,” which “killed 43 people, injured others, and destroyed the property in its path.”485 A nearly mile-long section of a nearby highway, State Road 530, was “covered by debris measuring 20 feet deep in some places.”486 The plaintiffs included the estate of one decedent who “was traveling eastbound on State Route 530 at the time the landslide overran the highway.”487 The plaintiffs al- leged that various governmental entities, including Snohomish County, the Washington Department of Natural Resources, and the Washington State DOT were at fault for the plaintiffs’ inju- ries. Specifically, the plaintiffs alleged that the Washington State DOT “violated its statutory and common law responsibilities to ensure that Rte. 530 was ‘reasonably safe for ordinary travel.’”488 Governmental entities other than the State of Washington avoided liability based on the application of immunity princi- ples. In 2006, in an effort to reduce landslide risk, Snohomish County and the Stillaguamish Tribe, in conjunction with the U.S. Army Corps of Engineers, had constructed a revetment or “cribwall” at the toe of the slope.489 The plaintiffs alleged that the revetment “was not properly evaluated, that it was not an appro- priate landslide remediation measure, and that it contributed to the devastation”490 of the 2014 landslide. However, in Sep- tember 2016, the court dismissed all claims against Snohomish County,491 finding that its involvement with the revetment was covered by various statutes providing immunity for county ac- tivities including those involving flood prevention and fish-and- 484 193 Wash. 2d 1009, 439 P.3d 1068 (2019). 485 Regelbrugge v. State, 7 Wash.  App. 29, 36, 432 P.3d 859, 864 (2018). 486 Defendant State of Washington’s Motion to Dismiss All Claims Against the State Department of Transportation, Pszonka v. Snohomish Cty., No. 14-2-18401-8 (Wash. Super. Ct. May 21, 2015), [hereinafter Motion to Dismiss]. See also Regelbrugge, 7 Wash. App. at 36, 432 P.3d at 864 (“Debris quickly traveled 3,000 feet, burying Steelhead Haven and a nearby highway, SR 530.”). 487 Motion to Dismiss, supra note 486. 488 Stipulated Order Resolving State’s Pending Motion, Pszonka v. Snohomish Cty., No. 14-2-18401-8 (Wash. Super. Ct. Jun. 18, 2015). 489 Regelbrugge, 7 Wash. App. 2d at 34–36, 432 P.3d at 863–64; see also Plaintiffs’ Consolidated Opposition to Snohomish County’s Motion for Partial Summary Judgment, Pszonka v. Snohomish Cty., No. 14-2- 18401-8 (Wash. Super. Jun. 8, 2015). 490 Regelbrugge, 7 Wash. App. 2d at 40, 432 P.3d at 866. 491 Id.; see also Snohomish County v. Allied World Nat’l Assurance Co., 276 F. Supp. 3d 1046, 1051 (W.D. Wash. 2017). cretionary immunity for failing to undertake lesser mitigation measures, such as routine ditch maintenance or installation of protective devices, despite the fact that there was no evidence that the Washington State DOT had balanced risks and benefits of these lesser mitigation measures.480 Although the jurors sepa- rately found that the Washington State DOT was not negligent, the plaintiff argued that the jurors may have been misled to be- lieve that they were obligated to find that the Washington State DOT was not negligent if it was entitled to discretionary immu- nity for delaying slope remediation. The plaintiff also appealed the trial court’s numerous evidentiary rulings, which effectively prevented the plaintiff from putting on evidence of slope pro- tective devices and other mitigation measures available to the Washington State DOT, and also from putting on evidence of the Washington State DOT’s notice of a dangerous condition at Slope 1867 prior to the accident. However, the Washington Court of Appeals affirmed the trial court, holding that the evidentiary rulings were within the trial court’s discretion.481 As to possible jury confusion re- garding the discretionary immunity defense, the Helm court held that any confusion was “clarified” by the “step-by-step” process in the jury verdict form, which asked the jury to sepa- rately answer whether the Washington State DOT was entitled to discretionary immunity, and whether the Washington State DOT was otherwise negligent.482 Acknowledging that the jury instructions did not clearly specify what slope management decisions qualified for discretionary immunity and which were subject to a negligence analysis, the Helm court was satisfied that the differentiation was within the jury’s ability.483 Because so much of the plaintiff ’s evidence (including its expert witness testimony) was excluded, the jury was left to rely primarily on Mr. Badger’s testimony regarding the USMS to determine that the Washington State DOT was entitled to discretionary im- munity for some slope management decisions, and/or was not negligent for others. Helm is an unpublished opinion and does not create a legal precedent that the Washington State DOT is entitled to discre- tionary immunity for failing to perform rock scaling or install protective devices on slopes in the USMS inventory, much less for failing to perform routine maintenance such as debris cleanup. However, Helm does reflect a successful litigation strat- egy by the Washington State DOT to introduce the USMS as evidence that the Washington State DOT’s slope remediation decisions constitute a balancing of risks and advantages, quali- fying for discretionary immunity. It remains to be seen whether other courts will follow the lead of the Helm court in extending broad discretionary immunity to decisions involving mitigation measures less than full remediation; however, evidence of the Washington State DOT’s USMS could convince other courts to conclude, as in Helm, that the Washington State DOT’s slope 480 Appellant’s Brief, supra note 449, at 19. 481 Helm, 184 Wash. App. 1010, at *6–8. 482 Id. at *5. 483 Id.

NCHRP LRD 82 39 first states in the nation to develop a fully-funded program that would proactively address the stabilization of unstable slopes. Washington’s program is unique in that it addresses rock slope instabilities and soil slope instabilities. WSDOT internally developed a Comprehensive management system that would address the goals of the priority program approach. Those goals include: 1) rationally evaluate all known unstable slopes along WSDOT’s highway facilities utilizing a numerical rating system that rates both soil and rock instabilities, 2) provide an unstable slope ranking strategy, based on highway functional class, which would ad- dress highway facilities with the greatest needs, 3) provide for early unstable slope project scoping, conceptual designs, and cost estimates that could be used for cost benefit analysis, and 4) prioritize the de- sign and mitigation of unstable slope projects statewide, based on the expected benefit. The first step in this comprehensive system is to identify the slopes. The slope has to be a known unstable slope that has a history of caus- ing maintenance problems on a state highway. Each slope is then rated using a numerical rating system that evaluates risk factors to the highway facility. These factors include: 1) soil or rock slope stability, 2) aver age daily traffic, 3) decision site distance, 4) impact of failure on roadway, 5) roadway impedance, 6) average vehicle risk, 7) pave- ment damage, 8) failure frequency, 9) annual maintenance costs, 10) economic factors and 11) number of accidents in prior 10 years. Each rating category is scored using point values ranging from 3 to 81, and then totaled to yield a numerical rating for each slope. 498 The suggestion was that the Washington State DOT had met or exceeded its obligation to protect highways from slope fail- ures through its establishment of a “comprehensive system” for unstable slope management. However, despite the Washington State DOT’s efforts, Mr. Badger declared that the slope that failed resulting in the Oso landslide had “never in the history of the highway caused a maintenance problem.”499 Because it was not an “unstable slope that has a history of causing maintenance problems on a state highway,” the slope had never been included in the Washington State DOT’s “comprehensive” USMS inven- tory.500 The Washington State DOT’s implication may have been either that the Oso landslide was not foreseeable, or that there must be reasonable limits to a State DOT’s duty to maintain slopes, and that this particular slope was outside of those limits. In response, instead of simply contending that the slope was part of the highway to be maintained and that the Washington State DOT was negligent by failing to include the slope in its USMS, the plaintiffs took the position of conceding “that they do not contend that [the Washington State ]DOT is impli- cated in this case because SR 530 was defectively designed or maintained.”501 Instead of relying on the recognized principle that a State DOT has a duty to maintain all of its highways in a reasonably safe condition, the plaintiffs instead argued that the Washington State DOT had a “duty to investigate, monitor, and warn about the dangers” of the site, as well as a “duty to 498 Id. 499 Id. 500 Id. 501 Ward Plaintiffs’ Opposition to Defendant State of Washington’s Motion to Dismiss All Claims Against the State Department of Trans- portation, Pszonka v. Snohomish Cty., No. 14-2-18401-8 (Wash. Super. Ct. Jun. 8, 2015) [hereinafter Ward Opposition]. wildlife permits.492 In 2015, the State of Washington demanded indemnity for plaintiffs’ claims from the Stillaguamish Tribe, based on an indemnity provision contained in a grant agree- ment in which the state had provided $497,000 to the tribe in support of the revetment project.493 The tribe filed a declaratory judgment action against the state on the basis of sovereign im- munity, and the U.S. District Court for the Western District of Washington granted summary judgment in favor of the tribe in August 2017.494 Thus, only the state agencies lacked immunity for the plaintiffs’ claims. In May 2015, the State of Washington moved to dismiss all claims against the Washington State DOT, not on the basis of immunity but rather on the grounds that the Washington State DOT was not negligent, i.e., that it satisfied its duty to “maintain its roadways in a condition that is reasonably safe for ordinary travel.”495 The Washington State DOT’s motion to dismiss was supported by the declarations of senior engineering personnel. The declaration of the Washington State DOT’s Northwest Re- gion Highway Engineer, Dave Crisman, stated that the highway section in question had “never been damaged or destroyed by a landslide,” that there was no place “to locate the highway that is guaranteed to be safe from a landslide,” and that the “highway satisfied all applicable engineering standards and was reason- ably safe for ordinary travel.”496 In order to make its highways reasonably safe for ordinary travel, Crisman declared that “[the Washington State ]DOT uses and relies upon accepted, tested, researched engineering standards in the design and construc- tion of its state highways,” including “the research, testing, and experience of federal and state transportation agencies across the nation.”497 As further evidence of the Washington State DOT’s applica- tion of reasonable engineering practices to reduce risk to the traveling public, the declaration of the Washington State DOT’s Chief Engineering Geologist, Tom Badger, provided details about the Washington State DOT’s use of the USMS: The development of WSDOT’s USMS began in the mid 1990’s, when a new project programming approach was implemented for WSDOT’s highway construction program. This new approach involved priori- tizing and programming projects based on the extent which they ad- dressed highway deficiencies along WSDOT’s highway system. One of the service objectives in the highway preservation program is the proactive stabilization of known unstable slopes within WSDOT’s right-of-way. Prior to the development of the Unstable Slope Pro- gram, WSDOT stabilized unstable slopes based primarily on a reac- tive approach. The development of this rational programming pro- cess for unstable slopes was undertaken at the direction of WSDOT’s Secretary of Transportation. The State of Washington was one of the 492 Regelbrugge, 7 Wash. App. 2d at 40–41, 432 P.3d at 866. 493 Stillaguamish Tribe of Indians v. Washington, No. 16-CV-05566, 2016 U.S. Dist. LEXIS 127460 (E.D. Wash. Sept. 19, 2016). 494 Id. The Stillaguamish decision was recently reversed by the U.S. Court of Appeals for the Ninth Circuit, on the grounds that the district court lacked subject matter jurisdiction. Stillaguamish Tribe of Indians v. Washington, 913 F.3d 1116 (9th Cir. 2019). 495 Motion to Dismiss, supra note 486. 496 Id. 497 Id.

40 NCHRP LRD 82 Notwithstanding the June 2015 consent agreement, in Novem ber 2016, shortly after Snohomish County was dismissed from the lawsuit on immunity grounds, the State of Washington (without admitting liability) consented to a judgment in the amount of $50 million, to resolve all remaining personal injury claims against all state agencies arising from the Oso landslide.508 One will never know how different the outcome would have been if the negligent design and maintenance claims against the Washington State DOT had not been dismissed in June 2015. However, it is interesting that the Washington State DOT did not seek discretionary immunity for slope remediation based on the USMS, particularly considering the fact that its motion to dismiss in Pszonka was filed in May 2015, 7 months after is- suance of the Helm appellate decision affirming broad discre- tionary immunity for the Washington State DOT for slope re- mediation. Considering further that the Pszonka court later did find complete immunity for Snohomish County, it seems that it would have been a worthwhile strategy for the Washington State DOT to pursue discretionary immunity for slope maintenance based on the USMS, and then argue that the immunity encom- passed the alleged duties to warn and coordinate. Both the Helm and Pszonka cases illustrate the defensive use of an unstable slope management program by a State DOT in tort litigation. Although the mere existence of an unstable slope management program is not likely to completely immunize a State DOT from liability for slope failure, a State DOT may be able to use the program to show that it balanced the risks and advantages of deferring capital improvements, so that the State DOT’s failure to remediate the slope will be entitled to the dis- cretionary function exception. Alternatively, the same facts can be used to demonstrate that the State DOT was not negligent, as the facts may show that the State DOT considered the hazard posed by the slope in question but made a reasonable decision to focus its limited resources on remediating slopes with higher hazard priority ratings, or on projects that would have a higher benefit-cost ratio. Where the slope in question does not have a high hazard priority rating in the unstable slope management program, the State DOT may be able to effectively argue that it was not neg- ligent because it had no notice of a dangerous condition on the highway. On the other hand, where the failed slope has a high hazard priority rating in the unstable slope management pro- gram, plaintiffs will use that information to argue that the State DOT negligently failed to exercise its discretion by taking action to address the known dangerous condition. While the unstable slope management program can be very helpful in avoiding liability for failing to fully remediate a hazardous slope, under- taking lesser mitigation measures and routine maintenance ac- tivities can help the State DOT prove that its maintenance of the hazardous slope was reasonable, as discussed in the following section. 508 Stipulated Judgment Against State, Pszonka v. Snohomish Cty., No. 14-2-18401-8 (Wash. Super. Nov. 10, 2016). coordinate” or “duty to engage” with other state agencies.502 The implication was that if state agencies including the Washington State DOT had shared information and expertise regarding the site, steps would have been taken to mitigate the hazard. In sup- port of this argument, the plaintiffs pointed specifically to the Washington State DOT’s USMS: The declarations of Messrs. Badger and Crisman establish that WSDOT has the resources and skill to “proactive[ly] stabiliz[e] known unstable slopes.” . . . Since the “mid-1990’s,” WSDOT has man- aged landslide risks, by ranking them, developing design and cost esti mates for mitigating those risks and then prioritizing the mitiga- tion of landslide risks before those risks turn into tragedy.503 The plaintiffs also rebutted the Washington State DOT’s suggestion that the landslide was not foreseeable, referencing documents indicating that in 1995, the state was concerned that a Washington State DOT bridge (“the crossing of SR 530 over the river just downstream of the slide”) was “at risk from the predicted catastrophic failure” of the slope.504 Given the Washington State DOT’s expertise in unstable slope manage- ment, the plaintiffs suggested that “the skill and resources of [the Washington State ]DOT” should have been deployed “to pro- actively mitigate the dangers posed” by the slope, including the “known risk . . . posed to [the Washington State ]DOT-managed property” (i.e., the SR 530 bridge).505 With the plaintiffs arguing that the Washington State DOT should have better protected its highway, it is curious why the plaintiffs conceded that the Washington State DOT was not negligent in maintaining the highway. The Washington State DOT’s motion to dismiss was resolved by consent agreement in June 2015, with the plaintiffs stipulat- ing that they “do not claim that a defective design or mainte- nance condition on SR 530 caused the roadway not to be safe for ordinary travel,” and dismissing claims against the Washington State DOT for negligent design or maintenance.506 In return, the Washington State DOT withdrew its motion to dismiss as to the plaintiffs’ other theories of Washington State DOT negligence,507 such as the duty to warn and the “duty to coordinate.” This con- sent agreement would appear to have been a major tactical vic- tory by the Washington State DOT, as the dismissed claim for negligent maintenance arguably encompassed the plaintiffs’ best argument for recovery against the Washington State DOT—i.e., that the Washington State DOT’s duty to maintain the highway in a reasonably safe condition for travel required it to take pro- active steps to investigate and mitigate the dangerous condition posed by the slope before it catastrophically failed. 502 Id. See also Regelbrugge, 432 P.3d at 864, 7 Wash. App. 2d at 36 (“Other claims included that the State negligently investigated condi- tions .  .  . and failed to warn community members about future slide risks.”). 503 Ward Opposition, supra note 501. 504 Id. 505 Id. 506 Stipulated Order Resolving State’s Pending Motion, Pszonka v. Snohomish Cty., No. 14-2-18401-8 (Wash. Super. Jun. 18, 2015). 507 Id.

NCHRP LRD 82 41 dangerous condition of the site, or at least that the injuries were reasonably foreseeable.518 In order to invoke the CGIA waiver of immunity for dangerous conditions on public highways, the plaintiffs alleged that the Colorado DOT negligently failed to maintain the highway “free from dangerous conditions.”519 The plaintiffs alleged that the Colorado DOT breached its duty to maintain by, among other things, “not installing devices to pre- vent boulders from falling on the highway,”520 such as the rock bolts or wire mesh suggested by Mr. Andrew’s affidavit. In addi- tion to the duty to maintain, the plaintiffs also alleged that, given the actual knowledge of the rockfall hazard rating at the site in question, the Colorado DOT was negligent by failing to warn travelers, or by failing to close the highway and direct traffic to alternate routes.521 Relying on Mr.  Andrew’s affidavit that the rockfall hazard was attributable to design, the Colorado DOT moved to dismiss based on the highway design exception to the CGIA waiver of immunity.522 The trial court denied the motion to dismiss, find- ing that “[t]he dangerous condition in which the plaintiffs were injured existed because of the government’s lack of maintain- ing the roadway, rather than from a design perspective.”523 The trial court thus appeared to conclude, without an evidentiary hearing, that the Colorado DOT was liable for the injuries. The Colorado DOT asserted an interlocutory appeal pursuant to the CGIA.524 The Colorado Court of Appeals reversed a significant por- tion of trial court’s ruling, concluding that the highway design exception to the CGIA waiver of immunity barred a number of the plaintiffs’ allegations of negligent conduct by the Colorado DOT. First, as to the allegation that the Colorado DOT was neg- ligent by failing to warn travelers, the court held, “The failure to warn of a hazard by posting warning signs is a design defect for which immunity has not been waived.”525 Second, as to the allegation that the Colorado DOT was negligent by failing to install devices to prevent boulders from falling on the high- way, the court was persuaded by Mr. Andrew’s affidavit that the Colorado DOT was immune because the highway was designed without such safety devices.526 However, as to the “general alle- gations” that the Colorado DOT “negligently failed to maintain the highway and keep it free from a dangerous condition,” the appellate court affirmed the trial court’s denial of the motion to dismiss, concluding that “a failure to maintain the highway and 518 Answer Brief of Jerry Medina and Mary Medina, Medina v. State Hywy Patrol, No. 1998CA2424 (Jun. 14, 1999) (Given the rockfall haz- ard rating, “it was foreseeable that other boulders might fall onto the highway. . . . The duty to maintain property is imposed in order to pre- vent foreseeable injury.”). 519 Medina, 17 P.3d at 180. 520 Id. 521 Medina, 35 P.3d at 448. 522 Id. at 450. 523 Id. at 451. 524 Id. 525 Medina 17 P.3d at 181. 526 Id. at 182. 2. Cases Finding Liability for Negligent Maintenance In 2001, in Medina v. State,509 the use of a rockfall hazard rating system failed to absolve the Colorado DOT from liability for injury due to a rockfall, where the Colorado Governmental Immunity Act (CGIA)510 waiving the state’s immunity did not contain a discretionary function exception from the general waiver of immunity for injuries resulting from failure to main- tain a public highway. Instead, the CGIA at the time provided a more narrow exception covering “injuries solely attributable to the inadequate design of a public highway.”511 In Medina, the Supreme Court of Colorado endeavored to “clarify the relation- ship between ‘maintenance’ and ‘design’ under the [CGIA], thereby demarcating the scope of the state’s duty to maintain a public highway.”512 Medina involved a 1996 rockfall on U.S. Highway 6 in which a boulder struck a bus, injuring passengers. Moving to dismiss on the basis of immunity, the Colorado DOT submitted the affidavit of Richard D. Andrew, “the state geologist in charge of evaluating the state’s highways for rockfall hazards.”513 In the affidavit, Mr. Andrew described the Colorado RHRS, which in- cluded a preliminary rating of slopes adjacent to Colorado high- ways, followed by a more detailed priority rating of the slopes that, based on the preliminary rating, were deemed to pose “the most serious threat of danger from rockfall activity.”514 Since the initiation of the Colorado RHRS in 1991, the slope in question had been assigned a preliminary rating “indicating the highest risk of rockfall activity,”515 and it ranked 381st out of the approxi- mately 700 slopes that received a detailed rating (i.e., “there were presumably 380 sites around the state more dangerous than this one”).516 In his affidavit, in an effort to invoke the statutory de- sign immunity, Mr. Andrew described the rockfall hazard at the site in question as a condition resulting from design, as opposed to negligent maintenance or construction: This area of the highway was designed with no shoulders, no road- side ditches and very steep highway clearance rock cuts. The design methods that would have mitigated the rock fall potential in this area would be a ditch catchment at the base of the cut slope, highway shoulders, rock bolting, wire mesh or a combination of these meth- ods. It was the original design of the highway cut slope through this area that allowed the rock to reach the traveled portion of the road and not construction or lack of maintenance.517 The plaintiffs seized on the Colorado DOT’s rockfall hazard ratings as evidence that the Colorado DOT had knowledge of the 509 35 P.3d 443 (Colo. 2001). 510 Colo. Rev. Stat. §§ 24-10-101 to 24-10-120. 511 Medina, 35 P.3d at 448 (citing Colo. Rev. Stat. § 24-10-106 (2001)). 512 Id. 513 Id. at 450. 514 Id. at 465. 515 Medina v. Colorado State Hywy. Patrol, 17 P.3d 178, 182 (Colo. App. 2000). See also Answer Brief of Jerry Medina and Mary Medina, Medina v. State, No.  1998CA2424 (Jun.  14, 1999) (“Defendants’ employee, Mr. Andrew, had given the slopes in question the highest rating for severity of rockfall danger . . ..”). 516 Medina, 35 P.3d at 465. 517 Id. at 450 (emphasis supplied).

42 NCHRP LRD 82 As to the alleged negligent failure to install protective devices such as rock bolts or wire mesh, the court sided with plaintiffs, indicating that the Colorado DOT could have a maintenance duty to install protective devices, even if not included in the original design, if protective devices “are necessary to return the road to its original state of being, repair, or efficiency as ini- tially constructed.”536 In reaching this conclusion that the duty to maintain may include installation of mitigation measures that were not included in the original design, the court was per- suaded by an affidavit from the plaintiffs’ expert consultant: In my opinion, the installation of rock bolts and wire mesh can be used in a wide range of applications from initial design of rock slopes to maintenance and remediation of rockfall hazards. Rock bolts and wire mesh are routinely installed following initial design and construc- tion to mitigate the risk of rockfall.”537 In a concurring opinion, some of the justices appeared to lament that the Colorado DOT was potentially subject to liability in this case, in light of Mr. Andrew’s affidavit concern- ing the Colorado DOT’s RHRS.538 The concurring opinion rec- ommended that the legislature adopt a general “discretionary function exception” broad enough to immunize the state from rockfall injury based on prioritization of rockfall hazards: Given a finite budget, and a state with aging road systems through mountainous areas, the state should have some degree of flexibility to determine the best uses of its resources. To preserve this flexibility, other jurisdictions around the country have excepted discretionary functions from waivers of governmental immunity. We have no such exception.539 The concurring opinion suggested that a discretionary func- tion exception “could allow for a more measured approach to highway maintenance.”540 In reality, it is unlikely that a discre- tionary function exception would have resulted in a different outcome in Medina, since courts routinely find that highway maintenance is an operational or ministerial activity not subject to the discretionary function exception. The Colorado design immunity statute served the purpose of a discretionary func- tion exception, immunizing the Colorado DOT from its deci- sion to locate the highway in an area prone to rockfall, and also for its decision not to undertake capital improvements that would make the highway safer than originally designed. How- ever, courts rarely extend the discretionary function exception to excuse a State DOT’s failure to perform routine maintenance or other mitigation measures to maintain the highway in a rea- sonably safe condition for travel. For example, in 2017, in O’Grady v. State,541 where an RHRS was in place at the time of a rockfall, the Hawaii DOT was deemed to be negligent for (among other things) its maintenance district’s failure to “consult[] regularly with a geotechnical engi- neer who had information regarding the findings of the RHRS 536 Id. at 462. 537 Id. at 461. 538 Id. at 465 (Kourlis, J., concurring). 539 Id. 540 Id. 541 140 Haw. 36, 398 P.3d 625 (2017). cut slope in their designed or constructed state” was within the CGIA waiver of immunity.527 Therefore, the Colorado DOT had exposure to the extent the plaintiffs’ injuries arose from the fail- ure to maintain the highway as designed, and the appellate court did not overturn or even address the trial court’s finding that the plaintiffs’ injuries were the result of a dangerous condition caused by the Colorado DOT’s failure to maintain the roadway. The Supreme Court of Colorado granted certiorari.528 As to the allegation of negligent failure to warn, the Court sided with the Colorado DOT, affirming “that the CGIA has not waived the state’s immunity for such a claim.”529 Also, as to the allega- tion of negligent failure to maintain, the Court provided even greater relief to the Colorado DOT, effectively overturning the trial court’s finding that the plaintiff ’s injuries resulted from a dangerous condition created by the Colorado DOT’s failure to maintain the highway. “Without evidence establishing the origi- nal state of being, repair, or efficiency of the road, it is impos- sible to determine whether Plaintiffs’ injuries were caused by a dangerous condition of the road that developed subsequent to the initial design and construction of the road or whether their injuries were caused by a dangerous condition that inhered in the design itself.”530 Demarcating where the Colorado DOT’s duty to maintain arises, the Court explained: When a dangerous condition of a roadway develops subsequent to the initial construction and design of a public highway due to a failure to maintain, the state is required to take the steps necessary to return the road to the same general state of being, repair, or efficiency as initially constructed, but nothing more. This is because a failure to return the road to the same general state of being, repair, or efficiency as initially constructed would increase the risk of injury above that deemed to be acceptable during the design stage.531 Although the site in question had been assigned a preliminary rating “indicating the highest risk of rockfall activity”532 at the initiation of Colorado’s RHRS in 1991, there was no specific evidence of the site’s rockfall hazard as designed, or whether the rockfall hazard had become more severe due to lack of main- tenance. An evidentiary hearing would be required to deter- mine whether the rockfall hazard at the time of the accident was solely attributable to design, and thus whether the CGIA waiver of immunity for dangerous highway conditions had any applicability to this case.533 This would involve determining “the original state of being, repair, or efficiency of the road as ini- tially constructed,”534 and then determining whether the state of the road had subsequently deteriorated due to a lack of mainte- nance so as to cause or exacerbate the dangerous condition that resulted in the plaintiffs’ injuries.535 527 Id. at 183. 528 Medina, 35 P.3d at 451. 529 Id. at 462. 530 Id. at 459. 531 Id. at 457. 532 Medina, 17 P.3d at 182. 533 Medina, 35 P.3d at 463. 534 Id. at 460. 535 Id. at 463.

NCHRP LRD 82 43 “The RHRS does not prescribe what is to be done after the rat- ings are determined. . . . Instead, the decisions about what to do are made within the discretion of the engineers.”553 The Hawaii DOT argued that its geotechnical department’s decision not to report RHRS preliminary ratings to its maintenance depart- ment was also subject to the discretionary function exception.554 The trial court concluded that, although the decision to undertake a large-scale rockfall prevention or mitigation project . . . may fall within the discretionary function exception[,] the State should not escape liability under the discretionary function ex- ception merely by choosing to address rockfalls onto a State highway only with large-scale projects and declining to use routine, everyday maintenance to address the risk.555 The trial court concluded that the Hawaii DOT maintenance district should have “had a system of routine ongoing mainte- nance” and also should have “consulted regularly with a geo- technical engineer who had information regarding the findings of the RHRS project,”556 among other things, but failed to do so. Therefore, the Hawaii DOT was negligent, having breached its “duty of care to travelers on a state highway to maintain the highway so it is reasonably safe for travel” (which the trial court expressly found to include the duty “to maintain the areas adja- cent to the highway so that the highway is reasonably safe from rockfalls”).557 Notwithstanding the Hawaii DOT’s negligence, however, the trial court concluded that there was no liability because the plaintiffs failed to prove that their injuries were caused by the Hawaii DOT’s negligence.558 Specifically, the trial court rea- soned that even if the Hawaii DOT had not been negligent, and had integrated the RHRS findings into its maintenance deci- sion-making, the rockfall may not have been prevented if the Hawaii DOT had not received funding from the state legislature or federal government to remediate the rockfall site.559 Support- ing this conclusion was the trial court’s finding that the “purpose of the RHRS was to identify the rockfall hazards adjacent to State highways” and then “to use the information garnered from the RHRS project to choose large-scale projects which would be funded by the Legislature of the State of Hawai’i . . . and with Federal funding.”560 The trial court thus viewed the RHRS as a mechanism for obtaining funding for remediation projects, and treated the plaintiffs’ failure to prove the availability of remedia- tion funding as a break in the chain of causation between the Hawaii DOT’s negligence in handling the RHRS results and the injuries suffered by the plaintiffs. On appeal, the Hawai’i Supreme Court vacated the trial court’s judgment. The trial court erred by requiring the plaintiffs to prove that there was available funding to remediate the slope, 553 Answering Brief, supra note 549. 554 Id. 555 O’Grady, 140 Haw. at 42–43, 398 P.3d at 631–32. 556 Id. at 41, 398 P.3d at 630. 557 Id. at 42, 398 P.3d at 631. 558 Id. 559 Id. 560 Id. at 41, 398 P.3d at 630. project,”542 and such negligence did not fall within the discre- tionary function exception to immunity. The O’Grady plaintiffs were driving along a state highway when the rockfall occurred in 2007, resulting in personal injury.543 The Hawaii DOT had implemented a statewide RHRS in 2004.544 The rockfall site in question received a preliminary “A” rating,545 and in developing the detailed RHRS rating, the site received the highest possible score with regard to the individual categories of differential ero- sion and block size volume.546 However, the high RHRS hazard rating had not resulted in remediation of the slope, as “there was minimal integration between the Hawai’i District Engineer and the State’s Rockfall Hazard Project results.”547 The plaintiffs alleged that the Hawaii DOT was negligent in ways including but not limited to the maintenance district’s lack of aware- ness of the RHRS project, the RHRS project manager’s failure to share the RHRS results with the maintenance district, and the failure to take action to remediate the slope given the high RHRS rating.548 The Hawaii DOT, on the other hand, attempted to use the RHRS project to demonstrate that it was not liable for the plain- tiff ’s injuries. The Hawaii DOT argued that the RHRS was im- plemented, in part, to discharge its duty to maintain roads in a reasonably safe condition: “DOT intended to use the RHRS to prioritize large-scale projects . . ., as rockfall mitigation based on the RHRS would have been subject to legislative appropriations or federal funding.”549 Hawaii DOT engineers and their RHRS consultant considered several different weighting methodolo- gies to calculate a detailed rating of all “A” sites, and the rock- fall site in question was not ranked in the top 20 sites using any methodology.550 Considering the limited resources available to remediate all rockfall hazards, the Hawaii DOT contended that its decision not to remediate the site in question was reason- able.551 Alternatively, the Hawaii DOT asserted that it was not liable due to the discretionary function exception to liability552: 542 Id. at 41, 398 P.3d at 630. 543 Id. at 40, 398 P.3d at 629. 544 Id. 545 Id. at 40–41, 398 P.3d at 629–30. 546 Id. at 41, 398 P.3d at 630. 547 Id. 548 Plaintiffs’ Final Argument, O’Grady v. State, No.  3CC0710372 (Haw. Cir. Ct. Jan. 5, 2012). 549 Answering Brief of Defendant-Appellee State of Hawaii, Depart- ment of Transportation, O’Grady v. State, No. 14-0001363 (Haw. App. Jul. 22, 2015) [hereinafter Answering Brief]. 550 The priority ranking for the site was highly variable, depending on the weighting methodology used to combine all detailed rating fac- tors, ranging from 38 under the FHWA-approved methodology, 127 under the New York State DOT methodology, and 214 under a modi- fied methodology proposed by the Hawaii DOT’s RHRS consultant. Amended Findings of Fact and Conclusions of Law, O’Grady v. State, No. 3CC0710372 (Haw. Cir. Ct. May 17, 2012). 551 Answering Brief, supra note 549. 552 O’Grady, 140 Haw. at 54, 398 P.3d at 643. See also Memorandum in Support of Motion, O’Grady v. State, No. 3CC0710372 (Haw. Cir. Ct. Oct. 5, 2011).

44 NCHRP LRD 82 C. Defending Limitations of Unstable Slope Management Programs State DOTs may be concerned that, as in the Medina and O’Grady cases, tort plaintiffs will attempt to use the State DOT’s unstable slope management program to demonstrate liability of the State DOT. For example, where the slope in question has a high hazard priority ranking in the unstable slope management program, plaintiffs will likely argue that the State DOT had knowledge of a dangerous condition on the highway. Where the State DOT fails to take action sufficient to prevent slope failure, plaintiffs will likely argue that given the high hazard priority ranking, it was not within the State DOT’s discretion to defer remediation, or that the State DOT did not actually exercise its discretion by considering other mitigation options. Given these concerns, it is reasonable to question whether State DOTs are exposing themselves to liability by implementing an unstable slope management program, or by upgrading to a geo technical asset management program, if the data in the programs can be used against the State DOT. As discussed previously, imple- menting unstable slope management programs can help State DOTs avoid liability for decisions to defer capital maintenance, such as full remediation of slopes, but do not allow State DOTs to avoid liability for failing to perform routine maintenance. This section examines whether State DOTs could incur liability by failing to implement or upgrade an unstable slope manage- ment program. 1. Failing to Implement a Program In 2008, in Terbush v. United States,568 the federal government avoided liability for the death of a rockclimber due to a rockfall at Yosemite National Park (YNP), under the discretionary func- tion exception to the FTCA, despite (or perhaps because of) its failure to implement an RHRS. The Terbush plaintiffs (parents of the deceased rockclimber) sought to hold the government liable in negligence, alleging, among other things, that water outflow from a wastewater system operated by the National Park Ser- vice (NPS) contributed to the rockfall. The plaintiffs also alleged that NPS knew or should have known of the rockfall hazard and negligently failed to warn visitors of the hazard. This theory was supported by the expert opinion of geology professor Chester Watts that rockfalls “are in fact predictable to a great extent by scientific analysis of the rock formation and conditions”569 in- cluding localized water and rockfall history. The government, on the other hand, argued that the discretionary function excep- tion barred the plaintiffs’ claims. In response, the plaintiffs argued that there were manda- tory (not discretionary) activities that the government failed to perform, relying in part on the NPS Loss Control Manage- ment Guidelines of 1991, which provided “for periodic inspec- tions to identify hazards and for immediate corrective action if 568 516 F.3d 1125 (9th Cir. 2008). 569 Terbush v. United States, No.  02-CV-05509, 2005 U.S. Dist. LEXIS 37685 *12 (E.D. Cal. Dec. 7, 2005). as the trial court effectively placed the burden on the plaintiffs to prove that the rockfall would not have occurred if the Hawaii DOT had not been negligent.561 Once the trial court concluded that the Hawaii DOT was negligent, all that was required for plaintiffs to establish liability was to show that the Hawaii DOT’s negligence was a “substantial factor” in the injuries suffered by the plaintiffs.562 In remanding to the trial court to apply the proper standard, the Hawai’i Supreme Court strongly suggested the correct ruling, by reminding the parties (and the trial court) that no one had appealed the trial court’s determination that the Hawaii DOT was negligent,563 and stating that the plaintiffs do not have a “significant burden” to prove that the Hawaii DOT’s negligence was a “substantial factor” causing their injuries.564 In addition, although the trial court did not expressly invoke the discretionary function exception,565 its findings evidenced con- cern that the Hawaii DOT might not have had sufficient fund- ing to remediate all hazardous slopes identified in the RHRS.566 On remand, the Hawai’i Supreme Court advised the trial court “that such rockfall mitigation efforts at the operational level would not involve the consideration of broad public policies,” and therefore “the State’s breach of its duty of care . . . does not fall within the discretionary function exception.”567 The Medina and O’Grady cases illustrate that, while unstable slope management programs can help State DOTs obtain im- munity for failing to undertake large-scale slope remediation projects, the State DOT is unlikely to avoid liability for failing to maintain its highways in a reasonably safe condition for travel. The question is whether unstable slope management programs can help a State DOT avoid liability for failing to undertake lesser mitigation measures that fall somewhere between full remediation and routine maintenance (such as rock scaling or installation of protective devices on the slope). As discussed throughout this digest, most unstable slope management pro- grams were originally “worst-first” programs, resulting in haz- ard priority rankings that effectively identified where to spend resources for full slope remediation. As the programs evolve into geotechnical asset management programs, State DOTs will be able to balance the risks and advantages of a range of mitiga- tion measures other than full remediation. While the State DOT may never be entitled to immunity for failure to undertake lesser mitigation measures, such as rock scaling or installation of protective devices on the slope, the use of a geotechnical asset management program may help the State DOT show that it was reasonable, and thus not negligent, by directing its limited miti- gation resources to other slopes based on a benefit-cost analysis. 561 Id. at 50, 398 P.3d at 639. 562 Id. 563 Id. at 52, 398 P.3d at 641 (“[T]he circuit court’s conclusions as to duty and breach have not been raised on appeal.”). 564 Id. at 46, 398 P.3d at 635. 565 Id. at 52–53, 398 P.3d at 641–42. 566 Id. at 49, 398 P.3d at 638 (“The circuit court’s analysis may have been influenced by a concern that the State did not have funds available to take appropriate remedial measures . . ..”). 567 Id. at 55, 398 P.3d at 644.

NCHRP LRD 82 45 traditionally subject to the discretionary function exception,580 similar to the decision to locate a highway in an area prone to rockfall. However, on appeal, the plaintiffs “shift[ed] the focus of their claim” from negligent design and construction of the wastewater system to negligent maintenance, relying specifically on the NPS Loss Control Management Guidelines of 1991 and the associated inspection requirements.581 The Ninth Circuit agreed that “the parties and the district court to some degree lumped the question of maintenance together with the other claims regarding design and construction.”582 The Ninth Circuit thus reversed the district court’s summary judgment ruling that the discretionary function exception barred the plaintiffs’ claims as to negligent maintenance.583 In remanding back to the dis- trict court, the Ninth Circuit recognized that “matters of routine maintenance are not protected by the discretionary function ex- ception because they generally do not involve policy-weighing decisions or actions,”584 although some maintenance decisions (such as full slope remediation) are “far from routine and may involve considerable discretion that invokes policy judgment.”585 On remand, therefore, it would be up to the district court to deter mine whether the government’s alleged negligence in- volved routine maintenance.586 On remand, the expert witness for the plaintiffs, geology professor Chester F. Watts, suggested that implementation of an RHRS was a routine maintenance obligation: “Standards of care and maintenance require that exposure of the public to rockfall hazards be minimized in every way possible, including reme- diation, warnings, and relocating infrastructure.”587 Dr. Watts identified “federal and state highway agencies” as having devel- oped objective scientific standards as well as the standard of care for rockfall hazard prevention, noting specifically that FHWA had “established procedures for quantifying rockfall hazards to the public referred to as the Rockfall Hazard Rating System (RHRS),” and that other government agencies such as NPS could “modif[y] RHRS to fit their needs.”588 Dr. Watts noted “that RHRS methods take into account not only geologic fac- tors, but also other human factors including personal exposure, residence times, and population density in high-risk areas.”589 In light of these factors, Dr. Watts suggested that NPS had an even greater obligation to implement RHRS than highway agencies 580 Id. at 1131. 581 Id. at 1132. 582 Id. at 1135. 583 Id. at 1128. 584 Id. at 1133. 585 Id. at 1134. 586 Id. at 1135. 587 Further Expert Report of Chester F. Watts, Terbush v. United States, No. 02-CV-05509, 15 (E.D. Cal. Dec. 17, 2008). 588 Id. See also Report or Affidavit of Chester F. Watts, Terbush v. United States, No. 02-CV-05509, 16 (E.D. Cal. Aug. 14, 2009) (“Federal, state, and local highway agencies must deal with many thousands of miles of unstable rock slopes.”). 589 Rule 26 Report of Chester F. Watts, Terbush v. United States, No. 02-CV-05509 (E.D. Cal. Oct. 30, 2009). an imminent hazard is identified.”570 The plaintiffs also relied on a “Resource Management Plan approved by the NPS and YNP management in 1993,” which “established that the park would study and monitor rock fall and geologic hazards and es- tablish an early warning system.”571 Elements of that 1993 plan included developing a systematic inventory, mapping, and rat- ing system “of geologic hazards near developed areas and access corridors”572 (i.e., geologic hazards along park roads573) to be incorporated into a GIS-based program. The plaintiffs argued that the actions prescribed by the 1993 plan “were not discre- tionary,” and that “NPS had a duty to act.”574 However, the U.S. District Court for the Eastern District of California observed that, although the 1993 plan prescribed specific “elements and formats” for the proposed geologic hazard rating system, “there is no specific time table” to implement it.575 “It does not appear that any of these provisions mandated specific action to be taken with respect to warning of the danger of rock fall on Glacier Point at the time of decedent’s death.”576 The court dismissed the lawsuit in 2005, concluding that the evidence proffered by the plaintiffs was insufficient to overcome the presumption that the government’s failure to act on the 1993 plan was within its discretion, in light of “the apparent difficulty of prediction of rock falls.”577 The court concluded that the case “did not in- volve a routine decision regarding maintenance” or the govern- ment’s “simple failure to perform a mandatory duty under an established, specific policy or pursuant to scientific, objectively determinable standards.”578 Therefore, the court concluded that the discretionary function exception to the FTCA deprived the court of subject matter juris diction over the plaintiffs’ negli- gence claims, and allowed the government to avoid liability for failing to implement a geologic hazard rating system. On appeal in 2007, the U.S. Court of Appeals for the Ninth Circuit largely agreed that the government’s failure to warn of rockfall hazard potential was covered by the discretionary func- tion exception, as the process of identifying potential hazards and determining which hazards warrant a warning involve the exercise of discretion.579 The Ninth Circuit also agreed that the decision to locate the wastewater management system in the vicinity of the rock slope (which the plaintiffs deemed “negligent design and construction”) was the type of decision 570 Id. at *40. See also Terbush, 516 F.3d at 1135. 571 Terbush, 2005 U.S. Dist. LEXIS 37685, at *60. See also Terbush, 516 F.3d at 1135. 572 Terbush, 2005 U.S. Dist. LEXIS 37685, at *61. 573 Terbush, 516 F.3d at 1139. 574 Terbush, 2005 U.S. Dist. LEXIS 37685, at *73. 575 Id. at *60. See also Terbush, 516 F.3d at 1139 (“[W]hile a specific time-frame of one year is mentioned in the section addressing geologic hazards, viewed in its proper context, the one-year time frame is not mandatory . . ..”). 576 Terbush, 2005 U.S. Dist. LEXIS 37685, at *61. 577 Id. at *75. 578 Id. at *77. 579 Terbush, 516 F.3d at 1140.

46 NCHRP LRD 82 mony of defective maintenance of the wastewater system, which Dr. Watts contended resulted in water outflows that triggered the rockfall. The plaintiffs responded that the case was not about negligent maintenance of the wastewater system, but rather about negligent maintenance of the slope, considering factors such as “hydrology, rock mechanics, and erosion,” matters ar- guably within the expertise of Dr. Watts.596 However, the trial court was persuaded that “the only issue before this Court is whether NPS’s maintenance of wastewater facilities on Glacier Point is routine maintenance or involves a discretionary ap- plication of policy shielding it from FTCA liability under the discretionary function exception.”597 Because “[p]laintiffs fail to allege any deficiency in the maintenance of Glacier Point’s wastewater systems,”598 the court dismissed the plaintiffs’ lone remaining claim for negligent maintenance in 2010. It appears that the Terbush court contemplated “routine maintenance” in the context of constructed facilities (such as the wastewater sys- tem) but had difficulty considering “routine maintenance” in terms of geologic assets such as naturally occurring rock slopes. The absence of an RHRS probably contributed to that, as there was no system in place for recording periodic inspections and developing ratings to identify potential remediation activities. In that respect, the absence of an RHRS may have helped the government avoid liability at the dispositive motion stage and avoid a trial, as rockfall hazard ratings had not become “routine maintenance” activities at Yosemite. Because the Terbush court rejected the plaintiffs’ argument that the standard of care for slope management includes the use of an unstable slope management program such as an RHRS, this opinion could be persuasive authority that a State DOT is not negligent for failing to implement a program. On the other hand, the opinion should not be read to suggest that State DOTs should not implement unstable slope management programs to avoid generating evidence of liability for slope failures. Terbush did not involve injury on a highway, so it did not involve the recognized duty to maintain highways in a reasonably safe con- dition for travel. Because of the duty to maintain, State DOTs need to demonstrate that they have made reasonable efforts to maintain the highway in a safe condition. In addition to a rou- tine maintenance program at the operational level, the existence of an unstable slope management program can help State DOTs demonstrate that they discharged their maintenance duty in slope failure cases, as long as the State DOT actually uses the program to make rational decisions about slope remediation projects. 2. Failure to Upgrade Program Unstable slope management programs have many recog- nized limitations. The calculations are not rigorous or high- fidelity predictions of slope failure; the slope hazard ratings are relatively simplistic calculations. State DOTs adopting unstable slope management programs often advertise that they have 596 Id. at *21. 597 Id. at *8 (emphasis supplied). 598 Id. at *23. do, contrasting the minimal time exposure of motor ists to rock- fall hazards, based on vehicle travel speeds, with the “hours and days” that park visitors such as campers may be exposed to rock- fall hazards.590 Dr. Watts opined “that it is standard practice for land management agencies to rate public rock fall hazards based on both geologic factors and on human factors, including visita- tion density and residence time within rock fall zones[, and] that Yosemite National Park avoided standard practice and common sense with respect to identification, evaluation, and safe use of known rock fall zones.”591 However, the absence of an RHRS at YNP meant that there were no historical slope hazard priority rankings, and very little in the way of inventoried data to perform RHRS calculations which might suggest that an RHRS would have identified the need to perform slope remediation at YNP. The government rebutted Dr. Watts’ expert opinion that the standard of care required an RHRS or similar analysis, arguing that Dr. Watts “failed to conduct the requisite scientific inquiry, failed to obtain a statistically significant number of field measurements, used flawed methodologies, and relied on false, unsupported and unconfirmed assumptions and incomplete data.”592 The govern- ment also contended “that Dr. Watts misapplied scientifically ac- cepted principles by using incomplete data, improper estimates, and unfounded assumptions,” and “that his causation opinions are not based on statistically significant field measurements or properly applied scientifically accepted methodologies.”593 Dr. Watts responded, “I have seen nothing in the government’s ex- pert’s writings that address even the most rudimentary of stan- dard rockfall hazard rating system (RHRS) parameters, such as residence times for persons beneath a rock slope, or history of rockfall damage, or the role of geologic structure.”594 Ultimately, however, the government was successful in ar- guing that the plaintiffs, in shifting their focus to the alleged negligent failure to implement an RHRS, were attempting to relitigate their claim for “negligent design and construction,” which the Ninth Circuit had affirmed was precluded by the discretionary function exception. The government argued that Dr. Watts had “modified his statements to now express the same opinions which focused on construction and management be- fore the 2005 dismissal and subsequent appeal, but to now at- tribute them to deficient maintenance.”595 The government also pointed out that the plaintiffs did not furnish any expert testi- 590 Further Expert Report of Chester F. Watts, Terbush v. United States, No. 02-CV-05509, 16 (E.D. Cal. Dec. 17, 2008). 591 Rule 26 Report of Chester F. Watts, Terbush v. United States, No. 02-CV-05509 (E.D. Cal. Oct. 30, 2009). 592 Memorandum of Points and Authorities in Support of Motion to Dismiss, Terbush v. United States, No.  02-CV-05509, 1 (E.D.  Cal. Oct. 30, 2009). 593 Reply Memorandum of Points and Authorities in Support of Motion to Dismiss, Terbush v. United States, No.  02-CV-05509, 11 (E.D. Cal. Dec. 9, 2009). 594 Report or Affidavit of Chester F. Watts, Terbush v. United States, No. 02-CV-05509, 16 (E.D. Cal. Aug. 14, 2009). 595 Terbush v. United States, No. 02-CV-05509, 2010 U.S. Dist. LEXIS 6861, at *11 (E.D. Cal. Jan. 28, 2010).