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

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4 NCHRP LRD 83 dertake but has not yet implemented. The following paragraphs describe litigation involving DOTs that have been found legally responsible for incidents based in part on language contained in their internal publications. Example A: Semadeni v. Ohio Department of Transportation In Semadeni v. Ohio Department of Transportation,1 Mr. Semadeni’s executrix brought a negligence suit against the Ohio Department of Transportation (ODOT) after he died from inju- ries he sustained while driving on Interstate 71 in Cincinnati, under the Blair Avenue overpass. A six-pound piece of concrete crashed through the windshield of his vehicle, striking him and causing the vehicle to go out of control. The concrete was dropped or thrown from the overpass by an unidentified person. The plaintiff claimed that Semadeni’s injuries and death were the direct and proximate result of ODOT’s negligent failure to install protective fencing on the overpass. Five years before the crash occurred, in response to repeated instances of objects be- ing thrown from overpasses, ODOT had instituted a policy that required the installation of protective fencing on all existing bridges in Ohio that scored ten index points or more according to criteria established within the policy, unless “adequate justi- fication for not doing so [could] be furnished.”2 The evidence was uncontroverted that the overpass at issue justified a score in excess of ten points. In defense of the claim, ODOT argued that it had not had enough time to implement its new policy before the accident occurred and that it was not negligent. The court found that “in a nearly five-year period” after the implementa- tion of the policy, “ODOT fenced only a small minority of the bridges which it had itself deemed to be in mandatory need of fencing, including the Blair Avenue overpass.”3 The court fur- ther found that ODOT did not establish funding for protective fencing anywhere in the state for over two years after the policy was instituted.4 After funding was established, the program funded only “ten percent of the qualifying bridges.”5 “ODOT’s agents and employees had a mandatory duty to complete its fencing within a reasonable time.”6 The installation of fencing on every overpass across the state of Ohio is an expensive and time-consuming process which logically spanned several years. The project involved “multiple steps, several districts,” more four hundred bridges that scored ten or more index point pursu- ant to the policy, millions of dollars, and numerous planning and engineering decisions.7 The case ended with a judgment against ODOT. 1 75, Ohio St. 3d 128, 661 N.E. 2d 1013 (1996). 2 Id. at 132, 661 N.E.2d at 1017. 3 Id. at 133, 661 N.E.2d at 1017. 4 Id. 5 Id. 6 Id. 7 Id. be considered” allow the agency flexibility in scheduling repairs and implementing directives and guidance. Inaccurate or improper use of commonly used terms can sug- gest liability on the part of the agency. Non-neutral, inaccurate language can increase the potential for a transportation agency to be at risk in litigation. This digest provides a writing method- ology for drafting policies, asset management reports, manuals, guidelines, and studies to minimize the risk of litigation. B. Internal and External Communications of the Agency There are multiple methods of communication between public agencies, academics, and practitioners, and their target audiences, whether the audience is internal staff, external stake- holders, or media. Interaction with the public, public partners, and other practitioners is commonly done through press releas- es, emails, and social media as well as via documents such as asset management plans and projections for spending. Almost all written communications prepared within a public agency are accessible through public records requests and during the litiga- tion process, so it is always important to use accurate and precise language and avoid language that contains opinions, inaccura- cies, or conclusions. This digest provides assistance that can be used by communications staff when drafting communications. II. CONSIDERATION OF LEGAL ISSUES ARISING FROM PUBLICATIONS AND COMMUNICATIONS Before a negligence claim is filed against the agency, coun- sel for the plaintiff will likely review technical and engineering materials of the agency that may be related to the claim, as well as relevant research studies and industry publications. Coun- sel may also request documents such as emails, press releases, safety studies, roadway plans, and design calculations through the public records request process in order to evaluate a claim or potential claim. The decision to make a claim or file a lawsuit against the agency is typically made after counsel reviews these documents and the claim is at least somewhat dependent on the content of the agency’s documents. The following sections provide examples of negligence claims against DOTs related to the agency’s alleged failure to follow its own written policies. Additionally, issues of industry standards and the importance of compliance with those standards are ad- dressed. This information is included in this digest to deliver an understanding of the legal issues that are inherent in written guidance on engineering and transportation matters. A. Language Found in Publications Intended for Internal Use Agencies instruct their technical employees through internal publications such as “design guides,” “maintenance manuals,” or “traffic manuals.” Sometimes the manuals contain statements that are factually inaccurate or describe field processes inaccu- rately, or they describe processes that the agency intends to un-

NCHRP LRD 83 5 along the highway was to provide safety to the traveling public and that since the KDOT had undertaken the job of installing fences along the highway, it had a duty to repair it promptly. The court also noted that farmers relied on the state fences rather than installing private fences alongside the fencing owned by the state.13 The court reversed the Court of Appeals and upheld the district court jury verdict which had found KDOT to be 35 percent at fault in the accident. Analysis: A conflict between written policy and the application of the policy in the field will usually be resolved in favor of the plaintiff rather than the DOT. Policy language must match the practices in the field. Language should be reviewed periodically for liability issues and to make sure that the written guidance is aligned with current practices and/or that current practice is aligned with written guidance. B. Language Used in Communications of the Agency Transportation agencies provide information to the public, stakeholders, and their own employees about transportation and infrastructure needs, the progress of projects, and many other day-to-day issues such as work zones and road condi- tions. These communications occur in a number of ways—press releases, interviews with media, social media, websites, public meetings, emails, and publications. These communications are preserved according to the agency’s records retention policies and are typically available for review up to ten years after the communications are first published. Employees of the agency must choose their words carefully during an interview with the media and in any public forum. The information staff conveys will likely become available for viewing by the public, possibly shaping public opinion of the agency. Public statements that are taken out of context or given without attention to detail may end up costing a public agency hundreds of thousands of dollars in litigation. Example A: Email An attorney for a DOT who was involved with the acquisition of land from a homeowners association for a $2 million frontage road sent an email to the head of the association that contained the following sentence: “. . . [the DOT] instructed me to point out that this project is for the benefit solely of the homeowners and expeditious execution would be appreciated . . .” after the agency and the neighborhood association were unable to agree to terms for the land needed to build the road. A newspaper article written about the situation, which included this email, indicated that several DOT staff members were opposed to the project because it did not serve a public purpose since it con- nected two neighborhoods and did not connect to a state road. Analysis: Public funds must be used for public purposes. In- formation such as this, based on emails from counsel for the agency, puts the agency at risk for legislative and judicial review 13 Id. at 266, 43 P.3d 803. Analysis: When an agency institutes a policy that impacts mul- tiple facilities in its system, consideration should be given to the inclusion of a schedule or timetable for implementation of the policy as a means to avoid liability. The agency must choose a reasonable implementation period based upon engineering judgment and availability of funds. Due to the scope of the overall overpass project and ODOT’s need to balance competing maintenance and construction pri- orities, the agency must have planned that the overpass work would be programmed in phases. The implementing language of the program and policy could have allowed for the work to be done as prioritized by the need for improvement based on objective criteria with a reasonable period of time for imple- mentation. Another option for consideration in a situation such as this would be for the agency to use language in the policy that allowed the program to be implemented as funding became available. Example B: Reynolds v. Kansas Department of Transportation In Reynolds v. Kansas Department of Transportation,8 a case involving the Kansas Department of Transportation (KDOT), the department was sued after a cow passed through a hole in interstate fencing that was required by policy to be repaired “im- mediately” after damage to it was discovered. The cow escaped from private property that was adjacent to highway right-of-way and was struck by the plaintiff on the highway. One of the pas- sengers in the plaintiff ’s vehicle was injured and another pas- senger died. Evidence at the district court trial indicated that the fence had been down for over a year. During that year, the high- way was mowed, and other routine maintenance had been per- formed in the area. The jury heard testimony that indicated that KDOT was aware of the condition of the fence. KDOT mainte- nance staff testified that he “inspect[ed] the fences weekly from the road.”9 A retired KDOT official opined that maintaining fencing was not a high priority in the field. “KDOT’s official manual provides that the purposes of fencing are to control ac- cess, provide safety to traveling public, prevent indiscriminate crossing of medians or ramps by vehicles or pedestrians, and prevent encroachments on the right of way.”10 The manual fur- ther provides, “Fences which have been damaged to the extent that their effectiveness is severely reduced should be repaired immediately. A temporary repair may be necessary until per- manent repairs can be made.”11 “On appeal [in the Kansas Court of Appeals], KDOT argued that it did not owe a duty to [the plaintiff], and if it did, there was insufficient evidence [that] KDOT’s failure to maintain its fence was the proximate cause of” the plaintiff ’s injuries.12 The Supreme Court of Kansas found that KDOT had a common-law duty to protect the motoring public, and that one of the purposes of the installation of fencing 8 273 Kan. 261, 43 P.3d 799 (2002). 9 Id. at 263, 43 P.3d at 801. 10 Id. at 264, 43 P.3d at 801. 11 Id. at 264, 43 P. 3d at 802. 12 Id. at 261, 43 P.3d at 800-01.

6 NCHRP LRD 83 the community and the board member later resigned. The agen- cy was exposed to potential damage to its public image as well as potential civil rights claims as a result of these statements. In the DOT example, an offhand comment by an engineer subjected the DOT to liability. An appropriate response could have been “we have a program to improve at-grade intersec- tions, but our budget only allows a few intersections to be fund- ed in each budget cycle. Therefore, the intersections must be pri- oritized by level of need for improvement. Other intersections had a higher priority for improvement than the one involved here. This intersection will be addressed when projects at inter- sections with higher priorities have been completed.” These examples illustrate the potential problems relating to agency officials or staff who speculate or provide opinions and conclusions rather than facts when discussing sensitive issues. Those issues may relate to an accident in a construction zone, the reason for a major project, or personnel choices. Depart- ment officials may not be prepared for media attention and pro- vide inaccurate, senseless or misleading information. For this reason, the research panel suggests media training and review of the methodologies discussed in Section IV of this digest. C. Industry Standards When performing their work, state agencies follow estab- lished methodologies called “industry standards,” which are a set of criteria that describe the generally accepted manner of carrying out operations. These methodologies are guidelines such as the Green Book or the Manual on Uniform Traffic Con- trol Devices (MUTCD). Policies and guidance implemented in roadway plans or in the field with the application of discretion or engineering judgment can lead to the agency adopting meth- ods that are outside of generally accepted guidance or prin- ciples. These practices can be functional and legally defensible but should be documented in order to explain the application of engineering judgment to the situation. Some polices cannot be flexible and require strict adherence. DOTs must balance cost and safety in their decision-making processes and are encouraged to use their discretion when de- veloping and implementing guidance and standards. This con- cept is addressed in the text of the Green Book. The text reads “. . . the intent of this policy is to provide guidance to the designer by referencing a recommended range of values and dimension. Sufficient flexibility is permitted to encourage independent designs tailored to particular situations.”14 Both the MUTCD and the Green Book contain language that specifically provides for the application of engineering judgment by technical staff. However, any unreasonable or undocumented departure from established principles can result in a finding of fault against the DOT. The cases and manual excerpts summarized below de- scribe issues that are frequently addressed during transporta- tion litigation. 14 AASHTO, 2018 Policy on Geometric Design of Highways and Streets. of funding formulas, new funding, audits, and the investigation of the agency for improper use of state funds. It puts the cred- ibility of the agency at risk and opens it up to the potential for litigation accusing it of improper use of taxpayer funds. Emails are subject to public release and should not contain irrelevant material, unfounded assumptions, or statements that can lead to liability. Example B: Conversational Tone A transit agency used Twitter to respond to customers who were angry about a service disruption to explain the reasons for the unavailability of 50 railcars that had occurred due to planned maintenance. The agency spokesperson, in response to complaints from the public, explained that he was not interested in “sugarcoating a problem that was obviously disrupting lives” and explained the reasons for the delay and when the cars would be back in service. Analysis: Policy is not made just by executive management. All government employees may be tasked with speaking on behalf of the agency at some point. The employee chose to use a conver- sational rather than adversarial or argumentative tone to discuss a controversial topic. Rather than avoiding the controversy, the employee addressed it directly, using words and phrases that a typical audience could understand. Even if the audience did not like the message that was delivered, it was delivered in a respect- ful, transparent manner and conveyed the message to the public that the agency heard and understood its concerns. However, a more effective means of communicating the agency’s concern and mission could have been to respond in this way: “The ve- hicles are out of service for short time due to planned and neces- sary maintenance. We expect this to be a minor inconvenience to system users who must make alternative arrangements.” Example C: Offensive Remarks A transit agency board member resigned after remarking, during a public meeting, that she would not hire an African American to lead the transit agency because of race relations in the community. Example D: Offhand Comments At a public meeting, a DOT engineer was asked to comment on a nearby intersection where several serious accidents had occurred recently. Members of the public were upset because a school bus had been struck by a truck and claimed that the intersection did not have appropriate sight distance. The engi- neer commented that the agency “had lots of those dangerous at-grade interchanges” and that the one at issue was on a list for potential upgrades. When the agency was sued about the acci- dent, those comments were identified in the petition. Analysis: The transit board member later clarified the remarks, explaining that it was difficult to be a public African American figure in the city, and that the environment in the city tended to limit upward progression for that population segment. How- ever, the comments were deemed offensive by some members of

NCHRP LRD 83 7 Appeals overturned the decision in part and the case was ap- pealed to the Supreme Court of Ohio. In its discussion of the case, the Supreme Court of Ohio observed that ODOT’s de- cision to improve a particular part of the intersection and its decision regarding what type of improvement was appropriate were within the agency’s discretionary judgment and the agency was immune from liability on those counts. However, the court found that after ODOT decided to improve an existing high- way, it had a duty to execute that decision in accordance with “current construction standards.”21 Risner was remanded to the lower court for consideration of that issue. Analysis: When a policy, guideline or standard allows the use of engineering judgment, an agency may be able to avoid liability in personal injury and wrongful death cases, assuming that it has acted in an otherwise reasonable manner. Documentation of the thought process and analysis undertaken by the agency during the decision-making process will aid the agency in de- fense of dangerous condition claims. E. Standards of Care The government is required to keep its roadways “reasonably safe.”22 In most states, reasonably safe refers to its intended use. Reasonably safe may be defined in many ways, such as when a facility is in compliance with its own policies, in compliance with the MUTCD, or in compliance with a national standard such as a bridge inspection standard. The agency is expected to use ordinary care in its operations. Ordinary care is the standard of care or degree of care a careful and prudent person would exercise in the same or similar set of circumstances. An agency should typically expect its employees to exercise ordinary care and not expand or increase requirements upon its employees beyond the minimum that the law requires. If a standard of care other than “ordinary care” is used, documentation of the rea- sons for the actions of the employees should be made. 1. Negligence Per Se “Negligence per se” is a doctrine that allows an agency or person to be found negligent when a law or regulation is vio- lated. In Idaho, state law requires that the state highway depart- ment adopt a manual that is in substantial compliance with the MUTCD. The Idaho Department of Transportation has adopted such a manual. In Jorstad v. City of Lewiston,23 the court deter- mining that the manual had the “force of law”24 and its contents 21 Id. at 63, 46 N.E.3d at.695. 22 See, Lavinge v. City of Jefferson, 262 S.W. 2d 60, 63 (Mo. App. 1953) (“It is the duty of a city to exercise ordinary care to maintain its streets in a reasonably safe condition for travel by those using them in a proper manner.”) (emphasis added). See also, Kyle v. Bogalusa, 506 So.2d 719, 722 (La. App.1987) (“The state owes a duty to the traveling public to maintain the roadway . . . in a reasonably safe condition for vehicular use.) (emphasis added). 23 93 Idaho 122, 456 P.2d 766 (1969) (overruled on other grounds, Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975). 24 Id. at 773-74. D. Agency Discretion and Engineering Judgment The governmental agency’s ability to use discretion and en- gineering judgment in its technical decision-making process was acknowledged by the court in Rothrock v. United States.15 Plaintiff Rothrock was injured when his car left the road on Interstate 65 in Indiana and rolled down a steep embankment. The plaintiff alleged that the accident was caused by the absence of a guardrail at the location where the vehicle left the road. A guardrail had been installed when the interstate was first built, but it was removed during a subsequent roadway resurfacing project. The plaintiff contended that FHWA was responsible for his injuries because it failed to ensure that guardrail was con- structed in accordance with applicable AASHTO standards. The court found the government to be immune from suit, reasoning that the FHWA is charged with balancing a mix of factors such as cost and safety, and therefore those decisions in- volved a discretionary judgment that should not be disturbed. The court stated “despite the alleged nonconformance with cer- tain AASHTO standards, the FHWA is charged with balancing a mix of factors such as cost and safety. This is inherently a dis- cretionary judgment involving the balancing of a mix of policy factors.”16 The court noted that Miller v. United States,17 an earlier guardrail case, similarly involved the application of design dis- cretion principles. The Miller court found that guidance con- tained within the Green Book, the MUTCD, and an NCHRP publication18 was subject to exceptions. The Miller court stated that the determination to approve a project design that does not conform to the minimum criteria is to be made only after due consideration is given to all project conditions such as the maximum service and safety benefits for the dollar invested, compatibility with remaining sections of unimproved roadway and the probable time before recon- struction of the section due to increased traffic demands or changed conditions.19 In Risner v. Ohio Department of Transportation,20 plaintiffs brought suit in the Court of Claims in Ohio after their daughter died in a car accident at the intersection of two state roads. The plaintiffs alleged that the Ohio Department of Transportation (ODOT) negligently designed and maintained the intersection and claimed that the department should have installed a three- light signal at the intersection instead of the flashing yellow and red lights that were installed as required by its internal policy. ODOT moved for summary judgment arguing that it had con- structed the intersection according to design standards that were in effect at the time of construction and it did not have a duty to upgrade or change the intersection. The claims court granted ODOT’s summary judgment motion, but the Court of 15 62 F. 3d 196 (7th Cir. 1995). 16 Id. at 199. 17 710 F.2d 656 (10th Cir. 1983). 18 Jarvis D. Michie and Maurice E. Bronstad, Location, Selection and Maintenance of Highway Traffic Barriers, (National Cooperative Highway Research Program, No. 118, 1971). 19 Id. at 662. 20 145 Ohio St.3d 55, 46 N.E. 3d 687 (2015).