Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints (2021)

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TCRP LRD 57 / NCHRP LRD 84 3 FIX IT, SIGN IT OR CLOSE IT: STATE OF GOOD REPAIR IN AN ERA OF BUDGET CONSTRAINTS Terri Parker, Parker Corporate Enterprises, Nixa, Missouri I. INTRODUCTION Public transportation agencies are challenged with finding ways to achieve a state of good repair of their assets and facilities while conforming to an unyielding budget. The phrase “state of good repair” is commonly used to describe property or equip- ment that is in good working order. But the phrase is also a term of art, which has been incorporated into and defined by federal regulation as a basic element of the safe operation of a public transportation agency that owns, manages, or operates capital assets. Capital assets include motor coaches, trolley buses, light rail vehicles, cable cars, maintenance and administrative facili- ties, parking garages, and even street signs and paint. “State of good repair” is defined by federal regulation as “a condition suf- ficient for the asset to operate at a full level of performance.”1 Publicly funded transit agencies are required by federal law to keep their assets and infrastructure in a state of good repair. Similarly, state transportation agencies are obligated to keep their facilities and property in a “safe” or “reasonably safe” condition.2 The phrase “reasonably safe” is defined by statute, caselaw, guidelines, and standards and includes the concept of maintaining a facility in a reasonably safe condition for people who obey the rules of the road. The agency must plan for and anticipate foreseeable risks.3 A transportation agency is not required to protect against all possible perils that the traveling public could encounter. However, once a condition that requires repair or replacement is identified, the agency must address it. The agency has mul- tiple tools to address such conditions. The tools include issuing a warning or repairing the condition or taking the facility out of service temporarily or permanently. Decisions concerning the use of these tools are necessarily influenced by the amount of money the agency has in its budget. The budgetary discretion of the agency is rarely disturbed by court ruling, since legislative appropriations and executive department decisions are discretionary functions, which are immune from judicial inquiry. This is because both processes concern the allocation of scarce resources between and among competing policy measures.4 For example, in the case of Coviello 1 State of good repair principles, 49 C.F.R. § 625.17(a) (20210. 2 See, e.g., Irion v. State, 760 So.2d 1220, 1228 (La. Ct. App. 2000), (“It is well settled that DOTD [Louisiana Department of Transportation and Development] owes a duty to ensure that highways are reasonably safe for persons exercising ordinary care and reasonable prudence.”). 3 Palloni v. Town of Attica, 278 A.D.2d 788, 723 N.Y.S.2d 582 (2000). 4 See, Estate of Arrowwood v. State, 894 P.2d 642, 646 (Alaska 1995). v. Mass. Bay Transp. Auth.,5 plaintiff was seriously injured when he fell on a train track. In his lawsuit, Coviello alleged that if the Massachusetts Bay Transportation Authority (MBTA) had been adequately staffed, his injuries could have been prevented. The court found that the decision of the agency to have a staff member on site at a particular station was within the discretion of the agency and noted that the agency had to consider its bud- get in determining how to and when to spend public funds. The court noted that decisions regarding the allocation of staff are a fundamental part of MBTA’s obligation to apportion its lim- ited resources and entered a judgment in favor of MBTA on that basis. Similarly, in Edouard v. Bonner,6 a plaintiff passenger died after an intoxicated driver vaulted over a guardrail and struck the vehicle in which he had been riding. Plaintiffs sued the City of New York, claiming that the accident would have been pre- vented by a concrete median barrier at that location. After a jury decided in favor of plaintiffs, the city moved for a judgment as a matter of law, presenting evidence to the court that financing for the barrier had not been available and that other public works projects had taken precedence over the median barrier. The trial court denied the motion, but the appellate court found that the city had provided sufficient evidence of a legitimate ordering of its priorities and granted judgment as a matter of law to the city, thereby setting aside the jury verdict. Regardless of budget constraints, public agencies are obli- gated to comply with different legal standards of care depending on the type of tasks undertaken by the agency. Transit agencies must keep their trains, bus fleet, railcars, and facilities in a state of good repair in order to provide basic services to the public and achieve compliance with federal regulations. Employees of public agencies are obligated to operate motor vehicles or roll- ing stock with an extremely high degree of care, and roads and highways must be reasonably safe. Regardless of the standard of care requirement, an agency is not at fault for an accident simply because an accident occurs on or in its facility. This digest is intended to assist transportation agencies that struggle with difficult prioritization decisions due to budget constraints. Subsection III.A references legal authorities that support an agency decision to close or restrict access to a facility that cannot be safely operated. Subsection III.B provides a legal reasoning for choosing from hierarchy of treatments for poten- tially hazardous conditions such as whether to warn, mitigate, shield, or eliminating a hazard. Section IV provides an analysis 5 2019 Mass. App. Unpub. LEXIS 742, 96 Mass. App. Ct. 1108 (2019). 6 224 A.D.2d 575, 638 N.Y.S.2d 688 (1996).

2 TCRP LRD 57 / NCHRP LRD 84 CONTENTS I. Introduction, 3 II. Legislative and Regulatory Context, 4 A. State Highway Transportation Agencies, 4 B. Public Transportation Systems, 4 C. Protection of Data Collected in Safety Studies, 5 D. Potential for Discriminatory Impact on Users of the Facilities, 6 III. Scope of Legal Issues, 6 A. Authority to Close Facility and Limit Access to Facilities and Equipment for Safety Reasons, 6 B. Assessment of Risk for Tort Claims, 8 IV. Liability for Condition of and Access to Facilities and Assets, 9 A. Tort Claims, 9 B. Governmental Immunities and Defenses for Tort Claims, 12 C. Assessment of Risk for a Civil Rights Claim and Strategies to Challenge the Claim, 15 V. Administrative Safety Enforcement Efforts, 21 A. WMATA Incident Review, 22 B. New Jersey Transit Hoboken Terminal Accident, 23 VI. Current Practices, 24 A. Summary of Resources, 24 VII. Conclusion, 27 Appendix A, Transit Interview Questions, 28 Appendix B, Department of Transportation Interview Questions (Highway), 29