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Suggested Citation:"III. SCOPE OF LEGAL ISSUES." National Academies of Sciences, Engineering, and Medicine. 2021. Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints. Washington, DC: The National Academies Press. doi: 10.17226/26266.
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Suggested Citation:"III. SCOPE OF LEGAL ISSUES." National Academies of Sciences, Engineering, and Medicine. 2021. Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints. Washington, DC: The National Academies Press. doi: 10.17226/26266.
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Suggested Citation:"III. SCOPE OF LEGAL ISSUES." National Academies of Sciences, Engineering, and Medicine. 2021. Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints. Washington, DC: The National Academies Press. doi: 10.17226/26266.
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6 TCRP LRD 57 / NCHRP LRD 84 populations explain why Title VI and environmental justice concepts are often paired.34 III. SCOPE OF LEGAL ISSUES This section examines legal authority that would support an agency’s closure or restriction of access to a facility if it cannot be safely operated. It also provides an analysis of the tort liability the agency may experience if facilities are not closed, or access is not restricted when a potentially hazardous condition is present. The section includes legal background on the hierarchy of treat- ments concerning whether to issue a warning, shield, or elimi- nate a potentially hazardous condition. The section also ad- dresses civil rights issues relating to the agency’s potential legal liability to the users of the facilities if those facilities are closed or eliminated temporarily and provides recommendations for mitigation of liability by public outreach or access to alternative routes or services. The section also suggests processes that may reduce the potential for legal exposure to the agency. A. Authority to Close Facility and Limit Access to Facilities and Equipment for Safety Reasons State and federal law often provide the framework for a trans- portation agency to close or restrict access to its highways.35 The authority for a transit agency to close, restrict access to facilities, or withdraw funding may be found in state or federal law,36 or regulation,37 or the enabling legislation for a mass transit agency. 34 FTA C. 4702.1B, Title VI Requirements and Guidelines for Federal Transit Administration Recipients (Oct. 1, 2012), https://www.transit. dot.gov/sites/fta.dot.gov/files/docs/FTA_Title_VI_FINAL.pdf. 35 For instance, Mo. Rev. Stat. § 304.180.4. (2020), (Regulations as to weight — axle load, tandem axle defined—idle reduction technology, increase in maximum gross weight permitted—requirements during disasters), authorizes the Missouri Department of Transportation (MoDOT) to establish weight limits for bridges or close a bridge when the Commission finds that the public may be at risk if this action is not taken. 36 Public transportation safety program, 49 U.S.C. § 5329 (2021), was the impetus for a national public transportation safety program. Section 5329(h) provides (1) Restrictions and prohibitions. The Secretary shall issue restrictions and prohibitions by whatever means are determined necessary and appropriate, without regard to section 5334(c), if, through testing, inspection, investigation, audit, or research carried out under this chapter, the Secretary determines that an unsafe condi- tion or practice, or a combination of unsafe conditions and practices, exist such that there is a substantial risk of death or personal injury. (2) Notice. The notice of restriction or prohibition shall describe the condition or practice, the subsequent risk and the standards and procedures required to address the restriction or prohibition. (3) Continued authority. Nothing in this subsection shall be construed as limiting the Secretary’s authority to maintain a restriction or prohibition for as long as is nec- essary to ensure that the risk has been substantially addressed. 37 Public Transportation Safety Program, 49 C.F.R. pt. 670 (2021) and State Safety Oversight, 49 C.F.R. pt. 674 (2020). D. Potential for Discriminatory Impact on Users of the Facilities In addition to regulatory safety requirements, public agen- cies must consider the impact of their budgetary actions upon minority and other protected groups. Title VI of the 1964 Civil Rights Act27 requires federal funds to be expended only on ac- tivities and programs that do not discriminate against people on the basis of their national origin, race, or color. This prohibition against discrimination applies to recipients of federal funds in two categories: 1) intentional discrimination and 2) procedures and criteria that do not appear to be discriminatory in nature but actually have a discriminatory effect on protected indi viduals. Section 601 of Title VI28 prohibits discrimination by a state or local agency and allows a private right of action for individuals who have experienced intentional discrimination. Section 60229 requires state and local agencies to ensure that their grantees do not engage in actions that have a disparate impact that results in discrimination. Agency policies with discriminatory effects cannot remain in place unless the agency can show the prac- tices were necessary to achieve a legitimate non-discriminatory objective,30 although there is no private right of action to en- force disparate-impact regulations that have been promulgated by federal agencies.31 Such federal regulations are enforced by the grantor agency by the withholding of grantee funding. Executive Order 1289832, Federal Actions to Address Envi- ronmental Justice in Minority and Low-Income Populations, was signed into law in 1994 and remains in effect today. The executive order required federally funded agencies to iden- tify and address “disproportionately high and adverse human health or environmental effects”33 on minority and low-income populations in their programs, policies, and activities. Policies of FHWA and FTA echo the language of the executive order and require agencies to identify and address adverse effects of their programs, policies, and activities on minority and low- income populations. The overlap between the statutory obligation placed on federal agencies under Title VI to ensure nondiscrim- ination in federally assisted programs administered by state and local entities, and the administrative directive to federal agen- cies under the executive order to address disproportionate ad- verse impacts of federal activities on minority and low-income 27 Pub. L. No. 88-352, § 601, 78 Stat. 252 (1964), as amended, codi- fied at 42 U.S.C. 2000(d)--2000(d)-7 (2021). 28 Id. § 2000(d). 29 Pub. L. No. 88-352, § 602, 78 Stat. 252 (1964), codified at 42 U.S.C. 2000(d)-1 (2021). 30 U. S. Department of Justice, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000D ET. SEQ., https://www.justice.gov/crt/fcs/TitleVI- Overview (last updated June 26, 2020). 31 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 517 (2001). 32 Exec. Order No. 12898, (February 11,1994), 3 C.F.R., 1994 Comp., p. 859, 32 C.F. R. 651,17 (2021). 33 Id. § 1-101.

TCRP LRD 57 / NCHRP LRD 84 7 lowing are examples of other objective criteria that may be used by the agency. a. National Bridge Inspection Standards.43 b. The transit agency may rely on its state of good repair analysis. The federal regulation contains guidance for measuring the condition of capital assets.44 c. Asset Management Plan45 or TAM. A plan includes categories such as inventory, inspection schedules, rating of condition of equipment and vehicles, budget, and risk. d. Vehicle pre-trip inspection or mechanics inspection checklist. e. Building inspection codes and criteria for inspection of new build- ing construction. f. Visual inspection of conditions such as flooding, or a roadway blocked by debris. g. Internal processes which require the collection of accident data that assists in determining potential projects and infrastructure improvements. h. Manual on Uniform Traffic Control Devices (MUTCD).46 Bridge inspection criteria, the MUTCD, building inspection codes, and other types of standard guidance have been devel- oped through years of scientific and engineering studies. Some of these methods are nationally accepted industry standards. 4. Discretion of Agency An action in tort is the basis for claims of damages due to property loss or injury allegedly caused by an act of an employee of the government or due to the condition of property that is owned or maintained by the government. In order to bring a claim, plaintiff must allege that the agency had a duty to him or her, that the duty was breached, the breach was the cause of in- jury, and that damages occurred.47 One of the defenses to a tort claim made against a governmental agency is that the agency is exempt from liability because the action complained of was within the agency’s discretion. The allocation of funds among competing interests such as safety, maintenance, long-term pur- chases, and expansion of the system is inherently a discretionary function of the agency. The concept of discretionary and ministerial functions is incorporated into both federal and state law. The discretionary function defense exempts the governmental actor from liabil- ity for “[a]ny claim … based upon the exercise or performance or the failure to exercise or perform a discretionary function or 43 FHWA, National Bridge Standards, https://www.fhwa.dot.gov/ bridge/nbis.cfm (last updated October 30, 2020). 44 Standards for measuring the condition of capital assets, 49 C.F.R. 625.41 (2021). 45 Transit Asset Management Plan requirements, 49 C.F.R. § 625.25 (2021). 46 FHWA, MUTCD website, https://mutcd.fhwa.dot.gov. The MUTCD identifies the standards used by transportation agencies to install and maintain traffic control devices on public streets and high- ways. It contains instructions for road markings, highway signs, and traffic signals. 47 See e.g., Turner v. North Carolina Department of Transportation, 233 N.C. App. 90, 93, 733 S.E. 2d. 871, 874 (2012). 1. State Law or Regulation In many cases, state law provides a basis for a transporta- tion agency to close or restrict access to its highways. The Washington State Department of Transportation is authorized to close or restrict its roadways if it is deemed necessary due to the condition of the road.38 Other transportation agencies, such as the Missouri Department of Transportation, have laws that require regular inspection of the bridges and allow weight and speed restrictions to be placed on the structures at the discre- tion of the agency.39 The agency can close or reduce access to its facilities when it has determined that a safety issue is serious enough to warrant action. This action may be spurred by a sud- den emergency or by a planned event. 2. Federal Regulatory Agencies Regulatory agencies, such as FHWA and FTA may, in some circumstances, temporarily administer a safety oversight pro- gram or withdraw previously authorized funding for safety reasons.40 For instance, in March 2015, in order to avoid a po- tential loss of funding, Washington Metropolitan Area Transit Authority (WMATA) was required to develop an action plan to address safety findings and recommendations that were is- sued by FTA following FTA’s comprehensive inspection of the rail and bus transit systems.41 In 2018, the Mississippi governor issued an emergency executive order requiring the closure of more than 100 bridges in Mississippi after structural inspec- tions were performed by federal highway officials.42 The emer- gency declaration was issued after the governor received a letter from FHWA, which warned that the Mississippi Department of Transportation was at risk of losing federal funds if the bridges remained open to traffic. 3. Objective Criteria An agency has multiple tools available to determine whether action should be taken in response to a potential safety concern. Scientific studies, review of data, and the implementation of technological advances are normally the basis of the agency’s decision-making process. The agency’s own policies, equipment manuals, and vehicle service manuals also contain objective cri- teria that is used to guide the decision-making process. The fol- 38 Closure or restriction authorized—Restriction for urban public transportation system use, Wash. Rev. Code § 47.48.010 (2021). 39 See, Inspections, when made—action to be taken, report of cer- tain first class counties, Mo. Rev. Stat. § 61.071 (2020). Alabama and Alaska have similar statutes, See, Closing highways and roads; barri- cades; signs; notice, Ala Code. § 32-5-16 (2021); Closing highways, Alaska Stat. § 19.10.100 (2020). 40 49 U.S.C. § 5329(e)(8)(C) (2021). This subsection allows for tem- porary federal assumption of rail transit safety oversight. 41 WMATA FTA Corrective Plan, https://wmata.com/rider-guide/ safety/fta-cap.cfm, (last visited March 18, 2021). 42 Cameron McWhirter, Mississippi Gov. Bryant Orders More than 100 Bridges Closed, The Wall Street Journal, (April 12, 2018), https://www.wsj.com/articles/mississippi-gov-bryant-orders-more- than-100-bridges-closed-1523541600.

8 TCRP LRD 57 / NCHRP LRD 84 of repairs, upgrades, and funding allocations as part of a risk- benefit analysis. The process of determining which projects or repairs were selected and the reasons for the selection should be documented in a detailed manner. The business record may include copies of policies, agency program needs, the AMP or TAM, emails, reports, drawings, photographs and/or letters and directives from regulators. The agency should document its decision-making processes in a location and format that can be accessed for many years. The following analysis could be part of the decision-making process. 1. Hierarchy of Treatments An agency may be criticized for the closure of a facility by those who depend on it for daily travel, simply due to the in- convenience caused by the closure. Governmental agencies have the ability to shut down their facilities when faced with a condi- tion that mandates closure. It is unlikely that a legal challenge would be made to a decision based on an obvious hazard such as a sinkhole opening on a highway or improperly functioning brakes on a light rail car. However, an agency may face legal liability in the civil rights context once an immediate hazard is identified that results in the need for permanent closure of a roadway or facility.54 The hierarchy of treatment analysis is relevant to multiple layers of agency decisions, such as in the instance when a sink- hole suddenly appears on a heavily traveled highway. In that case, the agency would have to prepare a short-term and long- term plan to address the sinkhole. The short-term response would likely be to close the road and reroute traffic or close the lane of travel. It would not be sufficient to warn of the condition since the ground would be unstable. The longer-term response would likely be to fill in the sinkhole or permanently reroute or close a portion of the road. In the case of improperly function- ing brakes on a railcar, the agency must immediately take the vehicle out of service. If there are no other available cars, ser- vice would be reduced until a substitute could be found. A mere warning of the condition of the brakes is clearly not sufficient. The agency must use its discretion and objective criteria to de- termine which conditions can be warned of, and which condi- tions must be temporarily or permanently fixed. 2. Warning of the Condition Courts have ruled that there is no obligation to warn of an obvious condition. In Smith v. Washington Metropolitan Area Transit Authority,55 the court found that WMATA was immune for its failure to warn patrons of the inoperative status of two escalators, noting that the agency was not obligated to warn of an obvious condition, and that decisions concerning the proper response to hazards are protected from tort liability by the dis- cretionary function exception. Even though there may not be a legal obligation to warn of a condition, a transportation agency may choose to warn of it. For instance, an agency may become aware that its guardrail is damaged along an interstate. Typically, 54 See Section IV.C of this digest. 55 290 F.3d 201 (4th Cir. 2002). duty on the part of a federal agency or an employee of the Gov- ernment, whether or not the discretion involved be abused.”48 The purpose of the discretionary exception is to “prevent judi- cial ‘second-guessing’ of legislative and administrative decisions that have been reached . . . [based on] social, economic, and po- litical policy of the agency.”49 In contrast, if an action taken (or not taken) by the govern- ment is found to be ministerial, the government is not exempt from liability. A ministerial act is generally defined by the courts as an act that is required by statute, regulation, or policy. An agency does not have the discretion to act (or not) if a statute or policy directs mandatory and specific action.50 An agency’s actions do not involve policy decisions when the acts concern mundane, administrative, “garden-variety”, housekeeping prob- lems.51 The employee who is performing a ministerial act has no option except to conform with the directive.52 For example, an employee is performing a ministerial act if he performs an inspection of a restroom on the hour because agency policy re- quires the restroom to be inspected every hour. Discretion of the agency as a defense to a lawsuit is discussed in depth in Subsection IV.B. of this digest. B. Assessment of Risk for Tort Claims The agency must seek to identify potential hazards to its facilities and mitigate or eliminate them, if possible. Risks such as harm to people or property, inconvenience, and loss of access to transportation systems should be ascertained. Once those risks are identified and evaluated, appropriate methods of miti- gating or eliminating inconvenience to the public and potential injuries can be determined. The agency must consider the con- dition of equipment and facilities as well as the importance of the continuance of the use of the asset to the operation of the en- tire transportation system. A similar method of risk assessment has been adopted by the FRA, which is designed to eliminate, control, or mitigate all identified hazards where feasible.53 If a lawsuit is filed, and liability of the agency for its actions or inactions is questioned, the basis of the agency’s defense of the claim will likely be a filed business record and witnesses that de- scribe the thorough and thoughtful decision-making process of the agency. This documentation will be important so the agency can show the discretion it used in prioritizing the importance 48 United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808, 104 S. Ct. 2755, 2762, 81 L. Ed. 2d 660, 671 (1984) (citing 28 U.S.C. § 2680(a) (1984)). 49 Id. at 814, 104 S. Ct. at 2765, 81 L. Ed. 2d at 674. See also, Risner v. Ohio DOT, 145 Ohio State 3d. 55, 46 N.E. 3d 687 (2015). 50 Navarette v. United States, 500 F.3d 914, 916 (9th Cir. 2007). 51 See, Aslakson v. United States, 790 F.2d 688 (8th Cir. 1986). 52 Rothrock v. United States, 62 F.3d 196 (7th Cir. 1995). 53 FRA, The Collision Hazard Analysis Guide Federal Railroad Administration, October 2007, https://railroads.dot.gov/elibrary/ collision-hazard-analysis-guide-commuter-and-intercity-passenger- rail-service. The Guide provides a step-by-step procedure on how to perform a hazard analysis and how to develop effective mitigation strat- egies to improve passenger rail safety. The analysis can be conducted in conjunction with the passenger railroad’s system safety program plan.

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The condition of the transportation infrastructure in the United States is an issue of national importance. State departments of transportation and transit agencies face tough choices as they make decisions about how and when to keep their assets safely open to the public.

The TRB Transit Cooperative Research Program and National Cooperative Highway Research Program's TCRP Legal Research Digest 57/NCHRP Legal Research Digest 84: Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints addresses the legal ramifications to transportation agencies that have to decide whether to repair, improve, or rebuild assets that are in poor repair.

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