Guidelines for Drafting Liability Neutral Transportation Engineering Documents and Communication Strategies (2020)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

NCHRP LRD 83 3 GUIDELINES FOR DRAFTING LIABILITY NEUTRAL TRANSPORTATION ENGINEERING DOCUMENTS AND COMMUNICATIONS STRATEGIES Terri Parker, Parker Corporate Enterprises, Nixa, MO I. INTRODUCTION In tort law, the standard of care or the amount and kind of care that must be taken by an individual, agency, or business is determined by generally accepted practices of the industry. Within the transportation industry, state and federal depart- ments of transportation (DOTs) and research practitioners set the baseline for reasonable and acceptable practices. These practices are established through policy manuals, safety re- search studies, and technical advisory documents that describe engineering and field methodologies. These documents include publications such as A Policy on Geometric Design of Highways and Streets (known as the Green Book) published by the Ameri- can Association of State Highway and Transportation Officials (AASHTO) and the Manual on Uniform Traffic Control Devices, published by the Federal Highway Administration (FHWA). The documents are subject to frequent review and revision. This digest offers language drafting styles that can be used by tech- nical writers, research investigators, academics, DOT practitio- ners, and those who implement roadway and safety projects. It is a practical guide to avoid concepts and language that give rise to legal liability. One of the most effective methods for a plaintiff to establish a negligence claim against an agency is to demonstrate how the agency failed to design, maintain, or operate the roadway ac- cording to national guidelines or its own standards, procedures, or policy. During the pendency of a tort claim, language in the agency’s policy that describes roadway features and operations will be examined closely by the parties. If the document con- tains imprecise guidance, unintended language, or opinions of the author, the agency may have provided a roadmap for plain- tiff to successful litigation. The documents may be called guidance or standards or po- lices. Technically, there is a difference in the definition of those terms. Guidance is typically understood to be advice which can be followed, but the application of that advice to a particular set of facts is not mandatory, suggesting an element of flexibility. A policy or standard must be followed unless flexibility is al- lowed or encouraged within the instruction. Because manuals and directives of the DOT are instructions to staff, those terms are used interchangeably in this digest. The terms “strategies” or “guidelines” or “toolbox” are often substituted for “policy” or “standard” and provide the agency with additional flexibility. To obtain material for a portion of this digest, a review and analysis of multiple state and city DOT websites, research pa- pers, and industry guidelines was conducted by the research panel. The panel reviewed DOT technical guidance, research documents, and manuals and looked for examples of clear and accurate fact-based writing and for examples that were not fact- based, contained opinions, were unclear, and/or seemed likely to lead to litigation. Portions of the documents obtained through this research are analyzed herein. Based on survey responses and the litigation experience of the research panel, several en- gineering and operational topics that are frequently sources of litigation were selected for comparison and analysis. All the ex- amples in this digest are taken from publicly available websites, although the agencies are not identified. These passages are il- lustrative in nature and almost every public agency has policies that could be improved by a review and rewrite. Additionally, the attached survey (Appendix A) was sent to 50 states as part of the research plan. A 24 percent response rate was obtained, with several states providing insight into litigation experiences that involved the application of policy guidance that was problematic for the agency. The premise of this digest is that vague or judgmental lan- guage should not be found in studies or instruction manuals. The opinion of the writer should not be apparent from the text. This publication contains a writing guide for technical and non- technical authors and those employees who interact with the public and the media. This digest will assist authors in avoiding concepts and language that have legal implications by promot- ing clear, direct, objective, and fact-based expression. A. Technical Instructions, Research Studies and Guidelines DOTs produce manuals and instructional documents that contain guidance to employees about many aspects of their jobs such as operations, maintenance of equipment, and design and construction of roadways. Safety studies and research docu- ments are used in the same manner. These documents are an excellent resource and are used both in training and as perma- nent guidance in the field and in DOT offices. They are also a resource for parties to litigation involving the transportation agency. On occasion, those documents may contain language such as “hazardous” and “high risk” and “dangerous” that are terms of art and imply liability within the legal system. The lan- guage of the manual or policy may not be accurate or clearly explain the steps that should be taken by staff to ensure the ex- pected outcomes. In other instances, words such as “required” or “must” or “shall” provide the agency with little flexibility to carry out its critical performance measures. Words and phrases such as “where feasible” and “as soon as practicable” and “may