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 9 cision to warn of a condition rather than shield or fix it requires careful, logical, and documented analysis. 3. Decision to Remove the Hazard The application of engineering judgment may require that a condition be immediately remediated or removed. The agency simply does not have a choice and cannot keep a facility open if it is dangerous to the public. The agency has the authority to close or restrict access to a facility in this situation. Once an emergency or critical situation has been resolved, the agency must determine the means of restoring services or providing alternative services to the traveling public. In the case of a high- way or road agency, detoured routes are almost always available although they can cause inconvenience to the public if the de- tour is lengthy in distance or duration. Transit operations face the same challenges in maintaining consistent services. Both types of agencies are subject to discrimination claims for these decisions.59 4. Reliance on Asset Management Plan and State of Good Repair Principles The AMP assists the agency in determining the continuing usefulness and viability of an asset. It also provides the agency with data that may assist it in reducing costs, extending the use- ful life of vehicles, increasing equipment availability, optimiz- ing inventory levels, and ensuring regulatory compliance. The AMP requires replacement and/or maintenance of equipment on a regular scheduled basis. When defending a claim that a malfunctioning asset was left in service due to negligence of the agency, the agency can rely on the objective criteria and data found in its AMP as a basis for its defense and to assist it in explaining the reasons for its actions and choices. While few reported legal opinions discuss the AMP as a component of a defense to a claim, cases that discuss the discretionary aspects of the agency budget, such as the Coviello case, supra, where the court noted that the decision-making process of the agency, includ ing the allocation of its limited resources, was a discre- tionary decision and not subject to legal review, are helpful to the agency’s budget-based defense. IV. LIABILITY FOR CONDITION OF AND ACCESS TO FACILITIES AND ASSETS The following topics are analyzed in detail in this section: liability based on tort and discrimination theories and potential defenses to those claims; standards of care; governmental im- munities; and the consideration by the agency of cost of repair or replacement of a facility as a defense to a complaint. A. Tort Claims In a tort claim, a plaintiff seeks a civil remedy—typically money damages for personal injury and/or property loss— claiming negligence by the public agency or its employees. The lawsuit is based on a claim by a plaintiff that he or she has 59 See Section IV.C of this digest. guardrail repair cannot be completed immediately after a hit, and a guardrail may be out of service for a week or more. The Texas Department of Transportation installs a sign that warns motorists “guardrail out ahead” while some other states do not warn of the condition. A warning sign can be installed rela- tively quickly and inexpensively. However, the agency must be prepared to explain the reasons it chose to warn of a condition rather than take additional steps to address it. In California, a transportation agency is not responsible for harm caused by the lack of a warning device unless a reasonably careful person would not notice or anticipate a dangerous con- dition of the property without a warning of it. California courts have held that the government agency should warn of condi- tions that are not “reasonably apparent” to motorists. If a failure to post a warning sign results in a “concealed trap” for motorists who are using due care, the agency will not enjoy immunity.56 In Chowdhury v. City of Los Angeles,57 the court suggested that liability could occur in the following circumstances: the failure to “warn of a sharp or poorly banked curve” or “a hidden inter- section” or the failure to warn of a location known to the agency to “freeze and create an icy road surface.”58 In the instance of the agency warning of a known location that freezes, the agency can warn of a condition, but must make plans to fix the condition itself within a reasonable period of time. Analysis. In some cases, a condition should be remedi- ated but the work cannot be done immediately. Mitigation or reduction of a risk should be considered when the risk cannot be immediately eliminated. Mitigation should also be consid- ered when the condition cannot be fixed at all, whether due to practical implementation problems or budget restrictions. An example of this problem is a slippery road surface. The surface condition should be remediated as it is a potential hazard to the traveling public. While the agency may be able to warn of the condition rather than immediately expend funds for a roadway improvement, it still should address the condition. If a construc- tion project is required, months or even years may pass before the project can be funded and programmed. The agency must keep close watch on the condition of the road in case it deterio- rates, which could necessitate acceleration of the repair or the installation of additional warning signs. It may not be possible to remediate the condition immedi- ately or even in the immediate future due to budget consider- ations. A sign warning of the condition rather than a resurfacing might not be the preferred treatment, but it may be acceptable after the agency has considered factors such as traffic volume on the road and other needs on the system. The agency should also consider whether it has warned of similar conditions on other parts of its system. The agency can always consider other less permanent treatments such as scraping the surface of the pave- ment to provide additional friction or other treatments. The de- 56 See, Kessler v. State of California, 206 Cal. App.3d 317, 253 Cal. Rptr. 537 (1988), cited in Lakireddy v. City of Oakland, 2008 Cal. Super LEXIS 96 at *2 (2008). 57 38 Cal. App. 4th 1187, 45 Cal. Rptr. 2d 657 (1995). 58 Id. at 1197, 45 Cal. Rptr. 2d at 663 (citations omitted).

10 TCRP LRD 57 / NCHRP LRD 84 In MARTA v. Rouse,64 plaintiff was injured when her foot was trapped under the plate of an escalator in a rail station in Atlanta, Georgia. She filed a negligence action naming the Metropolitan Rapid Transit Authority (MARTA) as a defendant, alleging that a piece of equipment that was designed to prevent foot trapping should have been installed at the station. After examining fac- tually similar cases in other jurisdictions, the court dismissed plaintiff ’s claim, reasoning that a common carrier does not have an obligation to supply the “latest and best devices in situations requiring greater than ordinary care.”65 Referencing a decision in another jurisdiction, the court stated, “The court concluded that [the transit authority] does not have a duty to design and build a subway system that is completely accident-proof, nor is [the transit authority] required to constantly improve its subway system by incorporating every new safety device that may be- come available.” (Citations omitted)66 Analysis. The fact that new products or designs are avail- able does not mean that existing facilities that use older versions of those products or designs are not safe. In fact, the Policy on Geometric Design of Highways and Streets, a guide used by engineers to design highways, provides: “… the fact that new design values are presented herein does not imply that existing streets and highways are unsafe, nor does it mandate the ini- tiation of improvement projects.”67 A frequently used defense is based upon the concept that while systems or facilities can always be made safer, if the facility is in compliance with the rules or practices that were in place at the time it was installed, it is safe, or in a state of good repair. A finding of a state of good repair frequently equates to compliance with safety and mainte- nance standards. In City of Moorehead v. Bridge Co.,68 the court remarked that the bridge at issue should be maintained “in a state of good repair in accordance with the generally accepted standards by the Highway Departments for the States of North Dakota and Minnesota for similar structures.”69 3. Very High Degree of Care In many jurisdictions, a common carrier such as a bus or train is required by law to convey its passengers with extraordinary care or the very highest degree of care and protect passengers from foreseeable harm. Many states have established a com- mon carrier standard of care through statutes or caselaw, while others, such as California, use a statutory definition. According to California Civil Code Section 2100, “A carrier of persons for reward must use utmost care and diligence for their safe car- riage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”70 This 64 279 Ga. 311, 612 S.E. 2d 308 (2005). 65 Id. at 314, 612 S.E. 2d at 310. 66 Id. at 314, (citing, Jones v. Washington Metropolitan Transit Auth., 742 F. Supp. 24. 26 (D. D.C. 1990)). 67 AASHTO Roadside Design Guide, 4th ed. 2011, p. xliii. 68 2015 ND 189, 867 N.W. 2d 339 (2015). 69 Id. at p. 2, 867 N.W.2d at 341; See also, Rommel v. Illinois State Toll Highway Authority, 405 Ill. App.3d 1124, 938 N.E. 2d 1163 (2010). 70 General duties of carrier, Cal. Civ. Code § 2100 (2021). been injured by a wrongful or negligent act or failure to act. Plaintiff must prove (1) a duty to act in a non-negligent man- ner; (2) breach of that duty; (3) a causal relationship between the breach of the duty; and (4) damages. Several potential defenses may be used in support of the agency that is defending a tort claim. 1. Standards of Care There is not a precise standard of care for every situation. Generally, standards of care are established by governmental regulations and industry guidelines. For a plaintiff to recover damages under a negligence theory, he or she must prove the existence of a duty to that plaintiff as well as a connection be- tween the duty that was breached and the injury that occurred. Whether the duty exists is a question of law, which will be decided by a judge, and whether the duty was breached is a question of fact, which will be decided by fact finding judge or a jury60 When there are no guidelines in place at the time of an allegedly negligent engineering action, the proper standard of care is that of a reasonable engineer using accepted practices at the time of the act.61 If an agency is governed by laws, rules, or policies, and fails to comply with them, the failure to comply with those standards, without adequate explanation, generally indicates that an agency has been negligent in its actions. Discussed in the next section are standards of care that are typically applicable to agents and employees of transportation agencies, as well as the agencies themselves. The law varies by jurisdiction. Some jurisdictions enjoy governmental or other immunities and defenses, which will be considered by a court in conjunction with its analysis of the duty of the agency toward the plaintiff. 2. Reasonable or Ordinary Care The “reasonable person” standard of care refers to the degree of attentiveness, caution, and prudence that a reasonable person in similar circumstances would exercise. If a person has exer- cised reasonable care, he or she is not negligent. Many state laws require the government to keep its roadways in a “reasonably safe” condition to protect the motoring public.62 An agency can be held responsible for defects in its equipment if it knew, or with reasonable care, should have known, of a defect.63 a. Obligation to Upgrade The duty of reasonable care does not include the obliga- tion to upgrade facilities with the newest or best equipment if the equipment the agency has in use is in good working order. 60 See, Broussard v. State ex rel. Office of State Bldgs., 113 So. 3d 175, 185 (La. 2013). 61 See, Lunar v. Ohio Dept. of Transp., 61 Ohio App.3d 143, 147 (1989). 62 See, Reynolds v. Kansas Department of Transportation, 273 Kan. 261, 43 P. 3d 799 (2002), Knickel v. Ohio Dept. of Transportation, 49 Ohio App.2d 335, 361 N.E. 2d 486 (10th Dist. 1976), and Irion v. State, 760 So. 2d 1220 (La. Ct. App. 2000). 63 Boyd v. Manhattan & Bronx Surface Transit Operating Authority, 9 N.Y. 3d 89, 876 N.E. 2d 1197, 845 N.Y.S. 2d 781 (2007).

TCRP LRD 57 / NCHRP LRD 84 11 law is to protect work vehicle drivers against liability arising from their hazardous surroundings. If a work vehicle driver is operating in a snowstorm or clearing debris, there is greater po- tential for an accident.75 4. Agency Not an Insurer of Safety While a common carrier must operate with an extremely high degree of care, the courts have established that a common carrier is not an insurer or guarantor of its passengers’ safety and that negligence cannot be inferred simply because an accident occurred on a government facility. Proximate cause must always be established.76 A carrier is responsible to its passengers for in- juries that are caused by its negligence. It is not responsible for injuries that result from a cause that is outside its control.77 For instance, passengers may experience jolts or jerks while riding on a bus or train. These are normal occurrences for passengers that use these modes of transportation and are not a legitimate basis for a cause of action. 5. Negligence Per Se Negligence per se is a doctrine that requires an entity or agency to be found negligent if: 1) a law or a regulation adopted by it is violated and 2) the law or regulation was intended to pro- vide a private remedy to the person harmed by the violation. “A per se negligence rule substitutes a statutory standard of care for the ordinary prudent person standard of care, such that a viola- tion of a statute … is conclusive evidence of duty and breach.”78 For a statutory violation to satisfy the duty and breach elements, the person harmed by the violation must be among those the legislature intended to protect, and the harm must be of the type the legislature intended to prevent by enacting the statute.79 This doctrine is useful to the plaintiff who alleges that an agency has violated its own policies or guidance. In Idaho, state law requires that the state highway depart- ment adopt a manual that is in substantial compliance with the MUTCD. In Jorstad v. City of Lewiston,80 the court determined that the agency manual had the “force of law” and its contents and requirements applied to all state and local highways, further finding that failure by the city to follow the manual was negli- gence per se.81 Analysis. If a plaintiff can prove that a manual such as the MUTCD, which was adopted by the agency, was violated, and 75 See, Riley v. County of Broome, 95 N.Y.2d 455, 742 N.E. 2d 98, 719 N.Y.S. 2d 623 (N.Y. 2000). 76 See, Tomassi v Town of Union, 46 N.Y.2d 91, 97, 385 N.E.2d 581, 582, 412 N.Y.S.2d 842, 844 (1978). See also, Morris v. Chicago Transit Authority, 28 Ill. App.3d 183, 185, 328 N.E.2d 208, 209-10 (1975). 77 See, Gaines v. Chicago Transit Authority, 346 Ill. App. 3d 346, 349, 804 N.E.653, 655 (2004). See also, Rhodus v. Ohio Department of Transportation, 67 Ohio App. 3d 723, 588 N.E.2d 864 (10th Dist. 1990). 78 Gradjelick v. Hance, 646 N.W.2d 225, 231 n.3 (Minn. 2002). 79 See, Anderson v. Anoka Hennepin Ind. Sch. Dist. 11, 678 N.W.2d 651, 662-63 (Minn. 2004). 80 93 Idaho 122, 456 P.2d 766 (1969), overruled on other grounds by Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975). 81 Id. at 129-30, 456 P.2d at 773-74. duty is further outlined in the California common carrier jury instruction: 902. Duty of Common Carrier. Common carriers must carry passen- gers [or property] safely. Common carriers must use the highest care and the vigilance of an extremely cautious person. They must do all that human care, vigilance, and foresight reasonably can do under the circumstances to avoid harm to passengers [or property]. While a common carrier does not guarantee the safety of its passen- gers [or property that it transports], it must use reasonable skill to provide everything necessary for safe transportation, in view of the transportation used and the practical operation of the business.71 A common carrier is not responsible for injuries suffered by a passenger unless all of the elements of a tort can be established, including a breach of the duty to use the highest degree of care, which is the actual or proximate cause of the injury. a. Abandonment of “Highest Degree of Care” Requirement In Bethel v. New York City Transit Authority,72 New York had established a less restrictive standard of care for its common car- riers in some situations. Bethel, who was wheelchair bound, was injured on a bus when the wheelchair-accessible chair that he was using collapsed. When Bethel’s claim of negligence went to trial, the judge instructed the jury that the bus company “had a duty to use the highest degree of care that human prudence and foresight can suggest in the maintenance of its vehicles and equipment for the safety of its passengers.”73 Bethel did not produce any evidence at trial that the bus company actually knew the seat was subject to collapse. Instead, he relied upon a theory of constructive notice, arguing that a thorough inspection during or after a recent repair would have exposed the defect that caused the seat to collapse. The jury found in favor of plaintiff on the basis of the constructive notice theory. The bus company appealed, arguing that a common car- rier’s duty of extraordinary care was at odds with the concept of negligence in torts and that a common carrier should be held to the same duty of care as any ordinary tortfeasor in a suit related to maintenance of a vehicle. The court agreed, thereby establish- ing a less restrictive standard of care in circumstances involving maintenance of equipment in New York. New York has a law that protects its “hazard operators” from liability except when the operator exhibits reckless behavior. New York Vehicle and Traffic Law Section 110374 is an excep- tion to the general rule that vehicle drivers and owners are re- sponsible for damages proximately caused by their negligent acts. Street sweepers and snowplow operators are not held to the ordinary negligence standard while performing work on a publicly owned and maintained thoroughfare. The protection applies when such operators are engaged in “hazardous opera- tions” on or adjacent to a highway. The reasoning behind this 71 Judicial Council of California Civil Jury Instructions (2020 edition). 72 92 N.Y. 2d 348, 703 N.E.2d 1214, 681 N.Y.S.2d 201 (1998). 73 Id. at 352, 703 N.E 2d. at 1215, 681 N.Y.S.2d at 202. 74 Public officers and employees to obey title; exceptions, N.Y. Veh. & Traf. Law § 1103 (2021),

12 TCRP LRD 57 / NCHRP LRD 84 that the Iowa Department of Transportation (Iowa DOT) neg- ligently designed, located, and failed to upgrade the guardrail. Iowa DOT provided evidence to the court that the design and placement of guardrail standards changed rapidly between 1965 when the guardrail in question was installed and 1974 when the accident occurred. In that time, the state made five major guardrail changes. The trial court noted that it would be impos- sible to keep up with the ever-changing state of the art in guard- rail design and that the cost of those changes would be great. Iowa DOT proved that the cost would have been $25,725 per guardrail to upgrade all 200 existing guardrails to conform to each major design revision. The trial court found, and the Iowa Supreme Court agreed, that Iowa DOT’s decision to focus on completion of the interstate highways, decreasing traffic on pri- mary, two-lane highways, was reasonable and within its discre- tion. The state’s motion for summary judgment was sustained. In determining that the agency acted reasonably, the Butler court observed that [A]t any one time, the DOT may be aware of many facets of the State’s highway network which have become outdated due to recent design changes or advancements. At the same time, however, the DOT will have a limited budget with many competing demands placed on it. The DOT acts as a reasonable agency when it attempts to prioritize the needs of the entire highway system and make maximum use of its limited resources to best serve all of the traveling public.85 The issue, as framed in the Butler case, was whether the agency met the standard of care of a reasonable agency, prioritizing the needs of the entire highway system to maximize use of its lim- ited resources. In Abdulwali v. Wash. Metro. Area Transit Auth,86 plaintiff al- leged that WMATA did not provide adequate signing to warn of the dangers of moving between train cars, causing the death of a six-year-old boy who fell from the train after opening a bulk- head door. The only warning of the danger of traveling between cars was a sign on the door that read “No Passage—Except in Emergency.”87 Plaintiff challenged the adequacy of the sign’s warning. The court found that the text of the sign fit within the discretionary function exception to liability, noting “[t]he Transit Authority doubtless considered matters such as safety, aesthetics, cost, and a desire to alert passengers to the danger of moving between cars without discouraging them from so mov- ing during emergencies.”88 Analysis. Decisions relating to which facilities to budget re- pair or maintenance funds are distinguishable from negligent design cases. Maintenance can generally be seen as a more min- isterial function of the agency, where a design function is viewed as a discretionary function. For instance, once an agency has purchased equipment, it will have a manual for that equipment that contains checklists, maintenance schedules, and instruc- tions for upkeep. Maintenance of that equipment is a ministerial function of the agency employee, since there is little discretion 85 Id. at 421. 86 315 F.3d 302 (D.C. Cir. 2003). 87 Id. at 303. 88 Id. at 305. that the violation is proximately related to the harm that oc- curred, the agency will have a difficult time defending the claim. So that plaintiff ’s success on a negligence per se claim can be avoided, agency employees must be trained and competent in the operating practices of the agency. If a railcar operator is sup- posed to take certain steps every day, such as make a pre-trip inspection, and that inspection does not occur, a plaintiff can successfully argue that the agency was negligent if the injuries relate to the negligence. If the pre-trip inspection is part of a regulatory requirement, the agency will likely be found to be negligent as a matter of law. B. Governmental Immunities and Defenses for Tort Claims Defenses and immunities that are available to governmental agencies are discussed in this section. 1. Budget Constraints as a Component of the Defense In ARA Leisure Services v. United States,82 plaintiffs brought suit against the federal government after a tour bus left the road in a national park and multiple passengers were injured. Plain- tiffs claimed that the National Park Service’s decision to design and construct the park road without guardrails was negligent. Plaintiffs also claimed that the Park Service negligently main- tained the park road because, over time, the road had become narrower due to lack of maintenance. The lower court granted summary judgment in favor of the government on the issues of both negligent design and maintenance. The appellate court found that the decision to design and construct the road with- out guardrails was grounded in social and political policy, and therefore a discretionary act. The court based its ruling upon the Park Service policy that required roads to be designed “to be ‘esthetically pleasing [and to] … lie [] lightly upon the land utilizing natural support whenever possible.”’83 The court found the agency decision to allow the condition of the road to shrink from an original width of 28 feet to a width of 14.6 feet at the accident site was not protected under the doctrine since it was a ministerial decision. The court relied upon evidence that Park Service standards required park roads to conform to original road grades and alignments, finding the fact that personnel were required to work within a budget did not make their failure to maintain the road a discretionary function, noting that bud- getary considerations underlie virtually all government activity. The case was remanded so that plaintiffs could proceed with a cause of action based on the failure of the Park Service to follow its own maintenance policy. In the case of Butler v. State,84 plaintiffs were injured when their motor home left the road, and the vehicle was “speared” by a nearby guardrail. Plaintiffs sued the State of Iowa, alleging 82 831 F. 2d 193 (9th Cir. 1987). 83 Id. at 195, quoting U. S. Dept. of Interior, National Park Ser- vice, Compilation of Administrative Policies for National Parks and National Monuments of Scientific Significance, 65, U.S. Government Printing Office (1970). 84 336 N.W.2d 416 (Iowa 1983).

TCRP LRD 57 / NCHRP LRD 84 13 4. Adequacy of Policy An agency may argue, in defense of a suit, that its compli- ance with policies or standards relieves it of liability. A finding of a state of good repair frequently equates to compliance with highway safety and maintenance standards. However, the plan or policy itself must be logical and defensible. It is not sufficient to simply have a plan. This issue was discussed in Combellack v. State,89 in a hearing involving injuries relating to the State of New York’s alleged negligent removal of snow. The state had moved for summary judgment based on a qualified immunity defense. The court heard evidence that the state had a snow fighting plan and that its employees complied with the plan. The court, however, examined the plan and found it to be in- adequate. The court commented that the state did not present any evidence of the studies, analysis, or reviews that were used to formulate the guidelines, including whether the possibility of a vehicle vaulting over the attenuator barrels was considered. The court ultimately found that the state was not entitled to dis- missal of the claim. In Turner v. State,90 the court considered the Oregon De- partment of Transportation’s (ODOT) STIP, which was used in support of its defense to a dangerous road condition claim. The court noted that the STIP was a capital improvement plan that determined the prioritization, funding, and scheduling of transportation projects over a four-year period. As part of the agency’s motion for summary judgment, an ODOT traffic en- gineer attested that the agency prioritized transportation safety improvements under a Safety Priority Index System (SPIS), “primarily on crash history as reflected in SPIS safety statistics and the projected safety benefit that a project will have on that crash history.”91 According to the engineer, “it is ODOT policy to include the worst 5 percent SPIS-rated accident sites, as well as other high accident rated sites based on a cost/benefit analy- sis, in a list of potential highway safety construction improve- ment projects”92 in the STIP safety budget. The intersection that was at issue in the case was not listed on the top five percent of crash sites at the time of the accident, nor was it considered to be a high accident site. Because the intersection did not fit into either of those categories, the state did not add intersection im- provements to its STIP. The court ruled against the state’s summary judgment mo- tion, noting that ODOT did not show that modifications to the intersection were considered and rejected in the STIP process or that other available processes were used to decide against those changes. On appeal, the Supreme Court of Oregon agreed with the analysis of the court of appeals but noted that ODOT might have been able to develop the discretionary defense with addi- tional testimony and data.93 89 # 2019-040-043 (N.Y. Ct. Cl. June 17, 2019). 90 270 Or. App. 353, 348 P. 3d 253 (2015). 91 Id. at 366, 348 P.3d at 261. 92 Id. 93 See, Turner v. State, 359 Or. 644, 375 P.3d 508 (2016). involved with following the equipment manual. Design deci- sions are by their nature discretionary and involve the balancing of important policy considerations such as availability of funds and personnel. Budget constraints can be built into the defense of a claim or serve as the basis of the defense of a claim. Documentation of the process used to determine a course of action, after consid- eration of items such as budget, availability of and skill of em- ployees, and equipment capabilities all serve to support the de- fense of a claim that is based upon the discretion of the agency. 2. Sovereign Immunity Many government agencies enjoy sovereign immunity. This means that the government can only be sued under limited cir- cumstances such as when a dangerous condition of government property is alleged, or when constitutional rights are alleged to have been violated. The government is not subject to unlimited liability when it is sued, and damages are frequently capped by statute. State statutory caps are subject to change by the legisla- ture but range generally from $100,000 to $500,000. Analysis. Sovereign immunity is a budget constraint that has been placed upon a governmental agency by the state legislature or Congress. It is not negotiable. In the context of a serious tort claim, plaintiff ’s damages will likely exceed the statutory cap. If liability is not at issue, defense counsel can use the statutory cap as a basis to obtain a favorable and quick settlement. If liability is contested, plaintiff ’s counsel should be aware of the existence of the cap and the futility of obtaining a settlement or judgment in excess of the cap. The fact that the cap exists can be a powerful negotiating tool for both plaintiff and defendant. 3. Evidence of Decision-Making Process Evidence of the decision-making process can be persuasive to a jury or other finder of fact as noted in the Butler case, supra. When the agency can show the logic of its decision-making pro- cess, it is more likely to prevail in a negligence claim. An agency can base its defense on its plan to spend funds. The decision- making process can be project specific, perhaps including an ex- planation as to why a particular step in a process was changed, or the decision-making process can be explained as part of a statewide or agency-wide plan. The plan may include a cost- benefit analysis, data from accident or incident studies, trends, recommendations from federal authorities and any other infor- mation that supports or explains the reasons for the decisions of the agency. Documentation of the decision-making pro- cess of the agency can be particularly important to the defense of a case when the agency claims that it appropriately spent lim- ited funds. Frequently, the public agency engages in this type of analysis when devising and updating its list of upcoming trans- portation projects. Such lists are found in a State Transportation Improvement Program (STIP), which is required of the state transportation department, or Transportation Improvement Program (TIP) which is compiled by a metropolitan planning organization (MPO) and requires input and cooperation from state and local transit providers.

14 TCRP LRD 57 / NCHRP LRD 84 care if it has complied with the policies or guidelines that it has adopted, although the standards must be based on scientific studies and data. In other words, once a safety policy or require- ment is established, the agency cannot fail or refuse to follow its own requirements due to lack of budget. Practice Tip: Change the Policy. The agency may have the ability to change an internal policy or guideline as long as compliance with it is not required by law. If the agency does not choose to change a policy significantly, language in the policy itself can be changed to provide more flexibility. Language such as “as soon as practical” or “as determined by engineering judg- ment” can be helpful to the defense of a claim. 6. Restriction of Use of Safety Data 23 U.S.C. § 40998 protects information such as safety studies and hazard rankings that have been collected by the highway or rail agency to develop a federally funded safety construction improvement. The information gathered by the agency cannot be obtained in discovery or used in litigation against the agency. Some agencies, however, choose to use the data gathered in those studies to support their defense of a lawsuit. Section 409 contains a privilege that can be waived. The court in Renfro v. Burlington Northern and Santa Fe R.R.,99 stated “we see no com- pelling reason that the State cannot waive the privilege afforded it by Section 409. Section 409 merely affords the state a disclo- sure and evidentiary privilege regarding certain materials.”100 In trial practice, if accident or safety data are favorable to the agency, counsel may consider using the data in support of its defense to a lawsuit. For instance, a speed study may explain an increase or decrease in the posted speed of a road and counsel may want the jury to hear about the engineering methodology and judgment used to determine an appropriate speed. 7. Application of Discretionary Function Analysis in Facility Maintenance Claims In Smith v. Washington Metropolitan Area Transit Authority, supra, plaintiffs sued WMATA after their son died from a heart attack that occurred as he climbed a stopped escalator at a sub- way station. Two out of the three of the escalators had been placed out of service for safety reasons and agency personnel made the decision to stop the third escalator and allow patrons to walk up and down as they chose. WMATA did not have a statutory or regulatory mandate or any policy that applied to this set of circumstances. The appellate court found that the breakdown of the escalators at the same time was unforeseen, and there were no specific statutory or policy directives for the employees to follow. The court concluded that the decision to allow entering and exiting passengers to choose between walk- ing on a stationary escalator or riding an elevator was a decision that was discretionary, as the decision implicated the agency’s ability to fulfill its mission in a safe and efficient manner. Ul- 98 Discovery and admission as evidence of certain reports and sur- veys, 23 U.S.C. § 409 (2021) 99 945 So.2d 857 (La. App. 3rd Cir. 2006) 100 Id. at 860. Similarly, in Paget v. State,94 the court was critical of the Utah Department of Transportation’s decision to omit the installation of barrier at a location along I-80 in Utah, because the design standard relied upon by the agency did not provide adequate guidance to the designing engineer. The court noted Unfortunately, the Roadside Design Guide does not state any factors or unusual circumstances that should be considered in evaluating necessity. Given the confusing nature of what should be the more predictable categories on either side of it, the ‘Barrier Optional’ cat- egory appears to countenance little more than a free-for-all, affording highway designers carte blanche discretion to build or not to build barriers based, apparently, on little more than whim.95 Analysis. Most transportation agencies use an investment prioritization process that assigns a value to projects based on certain criteria, then ranks projects based on their value to de- velop a prioritized list. The agency may revise the prioritized list multiple times, with leadership making the revisions fit in with the agency’s missions and goals. While agencies may re- fine their ranking systems over time on data, the budget, and ultimately, the goals of the agency, the process should always be driven by analysis of carefully gathered and accurate data. Any plan developed by the transportation agency should be logical and carefully considered. A typical asset management framework uses measures such as age and condition to determine asset-specific impacts such as reliability and service quality, along with system impacts, which include system performance and safety. Some agencies use soft- ware tools to aid staff in the decision-making process, while others conduct a more informal investment prioritization pro- cess, using asset inventories, condition assessments, and obser- vations to make decisions. In either case, analysis of the data provides the agency with an overview of the condition of its assets and an understanding of potential investment priorities. Collaboration and information sharing among agency staff can ensure that all competing priorities of the agency are consid- ered, such as improving access for wheelchair bound patrons, improving service reliability, and mitigating safety risks. 5. Alleged Violation of Regulation or Policy Governmental discretion does not include the ability of personnel to violate the safety policies or rules of the agency regardless of whether money to change the condition of the property is in the budget. If a “challenged government activity involves safety considerations . . . rather than the balancing of competing policy considerations, the rationale”96 for an excep- tion to tort liability does not exist. In Ohio, the standard has been articulated as follows: “ODOT’s engineers, when under- taking and constructing a highway project, must adhere to cur- rent written standards in order to fulfill their duty of care.”97 An agency will usually be considered to have acted with ordinary 94 2013 Utah App. 161 (2013), overruled on other grounds by Paget v. DOT, 2014 UT App. 62, 322 P.3d 1180 (2014). 95 Id. at *P.19. 96 Summers v. United States., 905 F 2d 1212, 1215 (9th Cir. 1990). 97 Lunar v. Ohio DOT, 61 Ohio App.3d 143, 146, 572 N.E.2d 208, 211 (1989).

TCRP LRD 57 / NCHRP LRD 84 15 method that was developed as part of an SMS, a court may find that the agency acted reasonably and met the required standard of care. a. FTA’s Safety Management System Initiative104 FTA’s Safety Management System Initiative requires transit operators to manage safety risks through the implementation of an SMS. An SMS requires the continuous collection and analy- sis of information, which can be used to address risks such as criminal behavior. Measures in the SMS could include addition- al training for transit employees, a means of quickly contacting law enforcement, a list of riders who are banned from traveling in the system, and many other options that could be developed by the agency as it works through the SMS process. C. Assessment of Risk for a Civil Rights Claim and Strategies to Challenge the Claim Transportation agencies must provide a safe environment for the traveling public. Such agencies must also allocate pub- lic funds without discriminating, or appearing to discriminate, against protected groups. The framework for a decision-making process that can help the transportation agency allocate funds and avoid litigation is outlined in this section. This section also discusses methods that can be used to challenge a discrimina- tion claim. 1. Federal Regulations Section 601 of Title VI prohibits discrimination by a state or local agency and allows a right of legal action for indi viduals for intentional discrimination. Section 602 requires state and local agencies to ensure that their grantees do not engage in ac- tions that have a disparate impact that results in discrimination. Pursuant to Section 602, the U.S. Department of Transportation promulgated a disparate-impact regulation, which prohibits funding recipients from undertaking activities that have racially discriminatory effects. Recipients of federal funds must not utilize criteria or methods of administration that have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impair- ing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin.105 Agency policies that have a discriminatory effect must be eliminated unless the agency can show the practices were nec- essary to achieve a legitimate non-discriminatory objective. In 2012, FTA issued a publication to explain rights and remedies created by Title VI and environmental justice addressed in E.O. 12898.106 FTA clarified Title VI requirements as follows: 104 FTA, National Public Transportation Safety Plan, https://cms7. fta.dot.gov/regulations-and-guidance/safety/national-public- transportation-safety-plan, (last visited March 18, 2021). See also, P ublic Transportation Agency Safety Plans, 49 C.F.R. pt. 673 (2021) 105 Discrimination prohibited, 49 C.F.R. § 21.5(b)(2). 106 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. timately, the appellate court remanded the case to the district court to dismiss the allegations that were protected by discre- tionary immunity and determine whether Smith could make a prima facie showing of negligent repair and maintenance. The court also noted that there might not be a sufficient proximate cause nexus between the alleged negligence and Smith’s death. 8. Consideration of Cost of Anti-Crime Measures In Lopez v. Southern Cal. Rapid Transit Dist.,101 plaintiffs brought suit against Southern California Rapid Transit District (RTD) after they were injured during a fight on a bus owned by RTD. RTD argued that it could not protect passengers from assaults by fellow passengers due to the high cost of security. RTD presented evidence that it operated 220 bus lines over an area of 2,200 square miles with approximately 2,000 buses run- ning during peak hours. It contended that imposing the cost of trying to prevent third-party assaults would create a “colossal” financial burden on the district, and “nothing short of an armed security force could be expected to effectively curb criminal vio- lence” on board its buses.102 The court did not find that argu- ment persuasive, reasoning that RTD, as a public carrier, “has a duty” to use utmost care and diligence—whatever that may require in a particular case—“to protect its passengers from as- saults by fellow passengers.”103 The court noted that multiple ac- tions could satisfy the common carrier’s obligation of care and diligence in transporting its passengers. The court suggested that the bus driver might warn unruly passengers to quiet down or get off the bus; alert the police and summon their assistance, or, if necessary, eject the unruly passengers. The court also sug- gested that RTD could provide communication links between the bus driver and local police or bus headquarters to enable the driver to call for assistance when needed, and buses could be equipped with alarm lights to alert nearby police of criminal activity taking place on board the bus. The court further sug- gested that bus drivers, especially those on routes with a his- tory of criminal activity, could be trained to recognize and deal with potentially volatile situations. The court stated that it did not mean to suggest that the actions it suggested were the only actions a carrier could or should take to meet its duty to pas- sengers or that, in a particular case, a carrier would necessarily breach its duty if it failed to take any or all of these actions. The court simply suggested, for illustrative purposes, that there were a number of measures that RTD might take, which would im- pose little, if any, financial burden upon the district and could improve the safety of the bus system. The court did not find RTD’s budget restriction argument persuasive. Analysis. Lopez illustrates the importance of the agency de- cision-making process. The court did not discuss any processes used by the agency to deter crime on its bus routes, which in- dicates that such evidence was not provided. In the defense of a claim, if the agency is able to provide proof to the court of its efforts to deter crime, such as alarm systems, training, or a 101 40 Cal.3d 780, 710 P.2d 907, 221 Cal. Rptr. 840 (1985). 102 Id. at 787, 710 P.3d at 910, 221 Cal. Rptr. at 843. 103 Id. at 796, 710 P.3d at 917, 221 Cal. Rptr. at 850.

16 TCRP LRD 57 / NCHRP LRD 84 Darensburg alleged that MTC used facially neutral funding mechanisms that resulted in decisions that disproportionally favored rail service over bus service. After a bench trial, the dis- trict court found that plaintiffs had stated a prima facie claim of disparate impact discrimination, but that MTC had rebutted the presumption by showing that it had a substantial legitimate justification for the plan and granted MTC’s motion for sum- mary judgment. The court also found that plaintiffs were not able to prove the existence of a less discriminatory, equally ef- fective alternative plan. On appeal, the 9th Circuit again found in favor of MTC, finding that plaintiffs had used faulty reasoning in their statistical disparate impact study. While the Darensburg plaintiffs did not obtain a favorable court ruling in their legal action, supporters of their cause brought the funding issue to the attention of FTA in an ad- ministrative complaint. That complaint alleged that BART, the recipient of more than $70 million in funding that was to be distributed by MTC, failed to evaluate the equity impacts of its expansion project and therefore failed to comply with civil rights and environmental justice requirements. According to the complaint, one of the alternatives that BART had failed to evaluate was a bus rapid transit system that would have pro- vided fast service with a low fare to minority neighborhoods. In response to the complaint, FTA conducted an on-site investigation of BART’s Title VI compliance. In a January 15, 2010 letter to BART and MTC, the FTA Administrator stated that he believed the complaint’s allegations were true, and told BART and MTC that FTA would withhold the $70 million in funding unless BART could quickly provide an adequate plan to correct multiple deficiencies, including an equity analysis.111 At the conclusion of the investigation, $70 million in FTA funds was redistributed to all Bay Area transit systems and used to ad- dress budget deficits and mitigate the effect of services cuts and fare hikes. Analysis. While a plaintiff must show discriminatory intent by an agency to prevail in a suit and recover monetary damages, even when discriminatory intent is not proven, administrative agencies such as FTA, FRA, and FHWA may act on those allega- tions, as illustrated in the Darensburg matter. When a federal regulatory agency investigates claims that federal funds are not being used by recipients as intended by Congress, the outcome for the recipient state or local agency can be severe. A regulatory response can include withholding of future funds, a consent order, and/or increased scrutiny of the agency’s actions. The loss of planned funding from FTA or FHWA can be catastrophic to a state or local agency’s budget. Additionally, an unfavorable audit by a regulatory agency could be used by a plaintiff in a separate lawsuit to show a pattern of discrimination. 111 Peter Rogoff, FTA Administrator, January 15, 2010 letter, https:// www.bart.gov/sites/default/files/docs/BART_MTC_Letter_On_OAC. pdf; See also, Denis Cuff, Feds deny $70 million in stimulus money for BART rail extension to Oakland airport, East Bay Times, https://www. eastbaytimes.com/2010/02/12/feds-deny-70-million-in-stimulus- money-for-bart-rail-extension-to-oakland-airport-2/ (last updated Aug. 15, 2016). Title VI allows persons alleging discrimination based on race, color, or national origin by recipients of Federal funds to file administrative complaints with the Federal departments and agencies that provide financial assistance. Persons alleging intentional discrimination (i.e., disparate treatment) may bring an action seeking to enforce Title VI but cannot do so with regard to allegations of discrimination based on agency disparate impact regulations. Disparate impact claims may be filed with the Federal agency.107 a. Application of the Rules The public agency is charged with the practical application of Title VI and environmental justice, balancing many different issues and concerns in the allocation of its funds. Reduction of bus routes solely in minority neighborhoods could be the basis of a review. The placement of new and zero emissions vehicles in wealthy neighborhoods but not lower-income neighborhoods might also be scrutinized by a regulatory agency. Similarly, if the nature and quantity of bus service in an area is perma- nently changed, a service equity analysis must be conducted to determine whether the change results in a disparate impact on the basis of race, color, or national origin.108 A similar analysis should be conducted when the decision is made to close a facil- ity, whether temporarily or permanently, regardless of the rea- son for the change in service. The agency must explore options to provide the same or similar service to the public during the period of closure. Potential impacts to the populations it serves must influence the agency’s decision to perform tasks or repairs relating to the condition of its infrastructure, service outages, changes in service routes, or the frequency of service. This type of analyses is required for recipients of federal funds.109 b. Landmark Case The case of Darensburg v. Metropolitan Transp. Corporation,110 illustrates the concept of discrimination in the context of avail- ability of service. Darensburg was filed on behalf of minority bus riders who alleged that the Metropolitan Transportation Com- mission (MTC), the San Francisco Bay Area’s surface transpor- tation planning organization, placed an unequal and discrimi- natory emphasis on railway expansion to the detriment of bus riders. Plaintiffs alleged that MTC discriminated against them by selecting and funding Bay Area Rapid Transit (BART) rail projects rather than bus projects. Both MTC and BART are sub- ject to Title VI. Plaintiffs used bus services for transportation to and from work, school, shopping, and other destinations. Plain- tiffs complained that they were harmed by cuts to the frequency and reliability of bus service, fare increases, and the failure of the agency to make service improvements. Plaintiffs also alleged that the MTC plan had a disparate impact on minority riders and that the agency had a history of providing service that pre- dominantly benefited white riders. 107 Id. ch. 1-9. 108 Id. ch. 1-10. 109 The effect of the distinction between a temporary and a perma- nent change is discussed in Section IV.E of this digest. 110 636 F 3d. 511 (9th Cir. 2011).

TCRP LRD 57 / NCHRP LRD 84 17 c. Agency Forecasting and Planning for Budget Reductions Transportation agencies are required to develop and imple- ment agency safety plans, state of good repair reports, and asset management plans. The plans, once adopted by the agency, are both policy and guidance for the agency. The San Francisco Municipal Transportation Agency (SFMTA) State of Good Repair report indicates that in 2019, San Francisco’s transporta- tion system was generally in a state of good repair.112 The report detailed investments in critical and non-critical assets and iden- tified the work it had done on infrastructure such as facilities, stations, and technology. The report noted that the 2020 pan- demic would have long-term effects on the ability of the agency to invest in state of good repair projects. The SFMTA planned to address the deficit by prioritizing capital investments to maxi- mize asset conditions and meet replacement and rehabilitation cycles and provided detail within the report as to how and why the changes would occur.113 Similarly, MARTA published a set of service standards in 2017 that outlined the steps it planned to take should unplanned budget reductions occur.114 The plan specifically requires staff to consider the issues of service equity, vehicle availability, vehicle storage capabilities, and vehicle and operator availability when considering contraction of services. The standards, which were effective prior to the pandemic of 2020 or the need for budget reduction, provide guidance to the agency when and if it is faced with major operating budget shortfalls. In the event of budget contraction, MARTA intends to continue to provide core ser- 112 2019 SFMTA Annual State of Good Repair Report, https://www.sfmta.com/reports/2019-sfmta-annual-state-good- repair-report (follow link to “Supporting Documents  2019 SFMTA Annual State of Good Repair Report”). 113 Id. at 43. 114 MARTA Service Standards, FY 2017, https://www.itsmarta.com/ uploadedFiles/SERVICE_STANDARDS%20_FY_2017_Final.pdf. The standards provide In times of national or regional economic distress, cost containment and/or revenue generating actions taken by the Authority will include a multiple of alterna- tive considerations. These options are listed as follows: •   Implementing internal productivity-cost contain- ment initiatives; •  Seeking new revenue sources; •  Considering and proposing fare increases; and •  Reducing service as needed. Depending on the severity of the particular fiscal cri- sis, a significant contraction of service may be required to align the provision of service with expected revenues. The initial step in this process will be the identification of unproductive service, as outlined previously. However, this section serves to provide guidance for considering a systemic contraction of service when faced with major operating budget shortfalls. When faced with the cer- tainty of severely reducing transit services, the Authority must specifically define the types and levels of core ser- vices that will be preserved given the Authority’s com- plex multi-modal characteristics. Id. at. 22. vices, such as transport to health centers, major employers, and lifeline services, even if the frequency of those services must be reduced.115 Analysis. The MARTA and SFMTA policies are highlighted as examples of the ability of the agency to plan in advance for budget reductions so that it does not have to make important decisions rashly or during emergencies. The agency with a plan in place for budget restrictions can demonstrate that its actions were part of a carefully considered strategy that was developed over time and not in response to a situation that required quick action. 2. Compliance Reviews Compliance reviews relating to civil rights, equal employ- ment opportunities, Americans with Disabilities (ADA)116 and disadvantaged business enterprises,117 are conducted by regula- tory agencies pursuant routine scheduling or after a complaint or incident. When FTA conducts a Title VI Compliance Review, several items are typically audited: public outreach and partici- pation; evaluation of service and fare changes; use of multiple languages in outreach; documentation of Title VI complaints; service and equity analyses; records of investigations of Title VI complaints; notification of protection to beneficiaries of the pro- gram; and evaluation of potential adverse effects of service or fare changes in review of the program.118 If an agency is found to be deficient, it may be placed on a Corrective Action Plan (CAP),119 which requires strict compli- ance and periodic re-evaluations by the regulatory agency. A CAP will identify the actions that must be performed by the agency, which may include: a milestone schedule for completing the actions; the responsible parties for the actions; and the strat- egy for ensuring the completion of required work. The regula- tory agency monitors the agency’s progress in completing each required action. After the audit is concluded, a report is issued. The report identifies any deficiencies noted by the auditors and may recommend policy or procedure changes for the agency. A negative report, or one that requires multiple corrective actions, may be used by a plaintiff in a civil rights-based lawsuit as an indication that the agency has not complied with equal justice or constitutional requirements and principles. 115 Id. 116 Americans with Disabilities Act of 1990, Pub. L. 101-336, 104 Stat. 327. 117 U. S. DOT, Definition of a Disadvantage Business Enterprise, https://www.transportation.gov/civil-rights/disadvantaged-business- enterprise/definition-disadvantaged-business-enterprise (last updated Nov. 22, 2017). 118 FTA, Title VI Compliance Review Final Reports, https://www. transit.dot.gov/regulations-and-guidance/civil-rights-ada/title-vi- compliance-review-final-reports (last updated Dec. 31, 2020). 119 FTA, Corrective Action Plans, https://www.transit.dot.gov/ regulations-and-programs/safety/corrective-action-plans-caps- management (last visited March 18, 2021).

18 TCRP LRD 57 / NCHRP LRD 84 3. Strategies for the Defense of Title VI Disparate Impact Complaints A transportation agency can face a discrimination complaint for many of the actions it undertakes, including reduction of services due to budget restrictions. The agency can prepare in advance to defend against a complaint by documenting that it is actively engaging the public, for instance, considering the impact of its actions on lower-income and minority groups, and making its services accessible while considering its budget limitations. Actions that the agency can take to prepare for a compliance review or public complaint, depending on the cir- cumstances, are: • Develop procedures for investigating and tracking Title VI complaints filed against it and make its procedures for fil- ing a complaint available to members of the public. This will enable the agency to show that it has a plan in place to address complaints and that meritorious complaints are addressed. • Prepare and maintain a list of active investigations, law- suits, or complaints that allege discrimination based on race, color, or national origin. This list should include the date that the investigation, lawsuit, or complaint was filed; a summary of the allegation(s); the status of the investigation, lawsuit, or complaint; and actions taken by the agency in response to the allegations. Maintenance of the list demon- strates the commitment of the agency to investigation and resolution of complaints. • Seek out and consider the viewpoints of minority, low- income, and “Limited English Proficient” (LEP) popula- tions while conducting public outreach and involvement activities. Offer multiple opportunities for the public to be involved in the identification of social, economic, and envi- ronmental impacts of proposed transportation decisions such as websites, posters or flyers and town hall meetings. This step ensures transparency of the decision-making steps of the agency and the inclusion of multiple viewpoints in the process. • Complete an equity analysis when new facility locations are under consideration. Reach out to people who may be impacted by a change to the location of a facility, both positively and negatively. Compare the equity impacts of alternatives and conduct the analysis before selection of the preferred site. • Evaluate fare changes and all major service changes during planning and programming stages to determine whether those changes may have a discriminatory impact.120 120 See, FTA C. 4702.1B, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients”, October 1, 2012; see also, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964, 29 C.F.R., part 21 (2021); see also, U.S. DOT, Office of Civil Rights, Best Practices for Addressing Title VI in Transportation Projects, Speaking With One Voice, Lecture, Civil Rights Virtual Symposium, May 17-18, 2017. The following strategies and approaches are viable defenses to administrative complaints and challenges: • Attack the complaint itself: focus on the complaint’s failure to show or allege specific discriminatory intent or effect; discuss the complaint’s failure to identify any discrimina- tion; the absence of proof of any alleged disparity; and/or the complaint’s failure to prove a causal connection be- tween the alleged discriminatory behavior and the impact on the complainant or community. • If the allegation relates to a change or reduction in level of service or disparity in existing level of service, explain the basis for the agency decision; explain the adequacy of exist- ing service or of new service; explain the provision (if appli- cable) of alternative service or the need to reduce emissions as part of an emissions reduction program. • Show that a decision was part of a systematic and scientific study and that multiple options were considered, public hearings were conducted, and that public input was re- viewed. Explain that some factors are beyond the control of the agency such as a reduction in funding, or other admin- istrative difficulties. • Use statistics, demographic information, and other objec- tive measurements to rebut allegations of disparate impact. • Explain the source of agency funding and any statutory requirements or restrictions that relate to the funding, or the reason for a lack of funding, including a lack of federal funding or loss of subsidies or tax base. • Compare types of funding and explain the reasons for funding allocations. • Provide of an overview of the agency’s operations and facil- ities and be prepared to discuss capital replacement needs and/or explain preventative maintenance requirements of the systems which require additional funding.121 Analysis. In summary, if faced with a complaint, the agency should explain that the foundation for its decision is based upon the documented non-discriminatory evaluation conducted by the agency. This approach can include a defense to the com- plaint that relates to the agency’s reliance on state of good repair principles, its asset management plan, and other documents. When the agency can prove that it has conducted a thorough, equitable, and systematic analysis of its equipment, facilities, and vehicles, based upon the careful, scientific analysis, it can explain the reasons that changes have been made to the system. 4. Discrimination Claims Frequently allegations of discrimination and lack of safety are combined in suits against governmental agencies. This section is a summary and analysis of cases that involve claims related to the government’s alleged failure to maintain or construct facili- 121 Larry Thomas, Civil Rights Implications of the Alloca- tion of Funds Between Bus and Rail, TCRP LRD 27, Transporta- tion Research Board, the National Academies of Sciences, Engineering, and Medicine of Washington, D.C., (2007), p.11.

TCRP LRD 57 / NCHRP LRD 84 19 safe manner. The ADA requires public agencies to upgrade their sidewalks, curb cuts, and parking lots to be wheelchair acces- sible at the same time road improvements, such as resurfacing or overlay, are done.125 Additionally, the agency is required to compile a transition plan, which identifies routes and locations that will be upgraded and the timeframe in which the upgrade will occur. The court in Schonfeld v. City of Carlsbad,126 found that the city was in compliance with the ADA after examining the transition plan it prepared. The city provided evidence to the court that it had conducted a timely self-evaluation, solicited input from appropriate groups and individuals, indexed every street, inventoried existing and missing curb ramps, and then set up a procedure and budget to install 900 curb ramps over a four-year period. The court also noted that the city had set up an action plan, prepared an inventory report, and established a sidewalk installation prioritization process with appropriate budget allocations. The transition plan is an important sign to the public and a reviewing court that the agency is making prog- ress in complying with ADA requirements. Sidewalks may be closed during construction, impassable due to lack of maintenance or snowfall, or improperly con- structed. Each of these conditions pose a specific safety risk for people who suffer from physical disabilities. Large cities in- cluding Philadelphia,127 Los Angeles,128 New York,129 Seattle,130 and Atlanta131 have faced lawsuits based upon the ADA where indi viduals and groups allege that they have been discriminated against due to defects in sidewalks, curb cuts, and public build- ings, which are impassable and therefore inaccessible for dis- abled persons. As a result of these suits, each of these cities have been ordered by courts to devote substantial funds to sidewalk improvements. If an agency is sued for non-compliance with the ADA, its defenses are limited. 28 C.F.R. § 35.150 allows an agency to de- termine that the cost of compliance is unduly burdensome, but in order to prove that work required is “unduly burdensome” the agency must show that the decision was made by the head of a public entity or his or her designee, not an individual project manager or other lower-level employee.132 In order to meet the regulatory criteria, the agency must prove that it has considered all resources that are available in the funding and operation of its services and programs and that it has determined that fund- ing is unavailable for a project. 125 See, Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002). 126 978 F. Supp. 1329 (S.D. Cal. 1997). 127 Jason Laughlin, Philly’s sidewalks are so bad they violate federal law protecting people with disabilities, lawsuit contends, The Philadelphia Inquirer, August 26, 2019. 128 Emily Alpert Reyes, L.A. agrees to spend $1.3 billion to fix side- walks in ADA case, Los Angeles Times, April 1, 2015. 129 Clayton Guse, NYC sidewalk curbs still behind on Americans with Disabilities Act requirements: report, New York Daily News, July 26, 2020. 130 Adina Solomon, Crumbling Sidewalks Become a Legal Battle- ground, Bloomberg City Lab, August 16, 2018. 131 Id. 132 Existing facilities, 28 C.F.R. § 150(a) (2021). ties appropriately, allegedly resulting in discrimination against minorities, wheelchair bound individuals, and others. a. Intentional Discrimination Against Minority Community In Erie CPR v. Pennsylvania Department of Transportation (PennDOT),122 plaintiffs challenged the decision of the City of Erie and PennDOT to close a bridge during the construction of a new bridge, filing a lawsuit that alleged constitutional and envi- ronmental justice violations. Plaintiffs claimed that PennDOT discriminated against the primarily minority community by failing to adequately examine feasible alternatives for bicyclists and pedestrians during the time a new bridge was under con- struction. Plaintiffs alleged that leaving an existing bridge in place would have provided a safer and preferable corridor for pedestrian travel, and that defendants did not seek to commu- nicate with people with limited English skills prior to the bridge closure. The court found that the conduct of the defendants did not show the discriminatory intent required to support a claim of intentional discrimination. The court explained that in order to prove intentional discrimination through the application of a facially neutral policy (such as the one at issue in this case) the plaintiffs must have shown that the relevant decision maker adopted the policy at issue “because of, not merely in spite of, its adverse effects on an identifiable group.123 The court further pointed out that the mere fact of disparate impact was not suffi- cient to sustain a Title VI challenge to a facially neutral policy.124 Analysis. In Erie CPR, plaintiffs alleged that PennDOT discriminated against them by closing a bridge to pedestrian traffic. The city and state provided the court with documenta- tion of the decision-making process, including the feasibility study, which contained a cost-benefit analysis of eleven different alternatives. According to the study, the alternative of leaving the bridge in place during construction served fewer needs of the neighborhood than the selected alternate. In further support of its position, the agency noted that it had held three public meetings, four citizen advisory meetings, and obtained approval of the plan from regulatory agencies. The project had its own public website which provided graphic information, links to re- ports and publications, and contact information for the project. The court concluded that defendants undertook adequate pub- lic outreach methods during the decision-making process and provided multiple avenues for public input. This case illustrates the benefits of careful documentation of decision-making ef- forts and planning, which can lead to a successful defense of a discrimination claim. b. Lack of Access to Sidewalks The ADA was enacted to ensure that pedestrians with dis- abilities are able to access the public transportation system in a 122 343 F. Supp.3d 531 (3rd Cir. 2018). 123 Id. at 550 (citing Pryor v. NCAA, 288 F.3d 548, 562 (3rd Cir. 2002)). 124 Id. (quoting S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 265 (3d Cir. 2013)).

20 TCRP LRD 57 / NCHRP LRD 84 existing public transportation facility that affect or could affect the “usability” of a station or a part of the station, [I]t shall be considered discrimination, for purposes of section 12132 of this title and section 794 of title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered por- tions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.141 “This provision is known as the ‘Accessible Alterations Rule’”142 The court found that the replacement of a stairway at a sub- way station was “an alteration affecting the station’s usability”143 as contemplated by the rule and granted the motion for sum- mary judgment in favor of plaintiff. Analysis. Bronx Independent Living brought suit based on 49 C.F.R. § 37.43(a)(1), while MTA argued that the applicable regulation was 49 C.F.R. § 37.43(a)(2), not (a)(1). The differ- ence in the wording of the rules was important because under § 37.43(a)(1), MTA had made alterations to increase accessibil- ity regardless of cost, while under § 37.43(a)(2), MTA had to make those alterations only if the cost of the alterations would not be disproportionately expensive. Because of the complex- ity of this analysis, the agency must carefully review the regu- latory structure to ensure compliance with and understanding of the requirements of the rules before committing to a facility renovation. In Forsee v. Metro. Transp. Auth.,144 another accessibility case, plaintiffs, inter alia, argued that the City of New York had “his- torically stymied efforts to increase accessibility.”145 The plain- tiffs cited Bronx Independent Living, stating that the city’s op- position to installing elevators as part of the Middletown Road station renovation in 2013 “was illustrative of the city’s failure to increase accessibility in the city.”146 The plaintiffs survived the city’s motion to dismiss. Agencies that consistently fail to per- form accessibility upgrades may find that plaintiffs use examples of prior inactivity as evidence of discrimination. Access to Vehicles and Services. Public entities that pro- vide designated public transportation must make reasonable modifications in policies, practices, or procedures when those modifications are necessary either to avoid discrimination based on disability or to provide accessibility to their services. 49 C.F.R. § 37.169(c)147 identifies only three justifications a transportation provider can use to deny a request for a modification to a fleet route or service. The justifications do not include budget. These grounds apply to both advance requests for accommodation and on-the-spot requests: 1) granting the request for a modifica- 141 Id. (referencing 42 U.S.C. § 12147(a) (2019)). 142 Id. 143 Id. at 331 n.7 (citation omitted). 144 No. 19 Civ. 4406 (ER), 2020 U.S. Dist. LEXIS 56672 (S.D.N.Y. Mar. 31, 2020). 145 Id. at *8. 146 Id. 147 Process to be used by public entities providing designated public transportation service in considering requests for reasonable modifica- tion, 49 C.F.R. § 37.169 (2021). Compliance with the law and/or the adoption and imple- mentation of an adequate ADA transition plan are the only true and viable defenses to a claim of discrimination in this context. c. ADA Requirements for Buildings and Vehicles Accessibility features such as elevators at train stations and lifts or ramps on fleet vehicles can be the source of discrimina- tion claims. Budget restrictions, without adequate explanation, are not adequate defenses to such discrimination claims. Access to Buildings. Failure to make facilities accessible to wheelchair users when facilities are upgraded can result in claims against the agency. The court in Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Authority,133 considered the language of 49 C.F.R. § 37.43(a)(2) in a case in- volving the failure of the agency to install an elevator during a facility renovation. The first sentence of section 37.43(a)(2) provides: When a public entity undertakes an alteration that affects or could affect the usability of or access to an area of a facility containing a primary function , the entity shall make the alteration in such a man- ner that, to the maximum extent feasible the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area are readily accessible to and usable by indi- viduals with disabilities, including individuals who use wheelchairs, upon completion of the alterations. (emphasis added) The court found that infeasibility can only be “‘occasional and arises from the nature of the existing facility’—not from the budget limitations of a transportation authority.”134 The court noted that “ADA and U.S. DOT regulations define feasibility in relation to technical, rather than economic concerns.”135 Similarly, the court in Roberts v. Royal Atlantic Corp.,136 ob- served that “‘the maximum extent feasible’ requirement does not ask the court to make a judgment involving costs and ben- efits. … The statute and regulations require that such facilities be made accessible even if the cost of doing so—financial or otherwise—is high.”137 A similar issue was considered in Bronx Independent Liv- ing v. Metropolitan Transportation Authority.138 In this case, plaintiffs challenged the New York Metropolitan Transporta- tion Authority’s (MTA) decision to replace staircases, renovate floors, reconstruct platform edges, replace concrete platforms, and install new lighting, without constructing an elevator as part of the renovation. Plaintiffs sought a determination that the construction work triggered the accessibility requirements in the federal regulations.139 “Section 12147 of Title II (of the ADA) regulates the accessibility obligations of public entities making alterations to public transit facilities like subway stations.”140 The section states that when a public entity makes alterations to an 133 635 F.3d 87 (3rd Cir. 2011). 134 Id. at 95. 135 Id. 136 542 F.3d 363 (2nd Cir. 2008). 137 Id. at 371. 138 358 F. Supp.3d 324 (S.D.N.Y. 2019). 139 Discrimination, 42 U.S.C. § 12132 (2021). 140 358 F. Supp.3d at 328.