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Pages 13-23

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From page 13...
... NCHRP LRD 82 13 retains the exponential RHRS rating score for rock slopes, but it converts the RHRS rating score into a qualitative condition state ("good," "fair," or "poor") .118 For each condition, RAMP provides for consideration of the life-cycle costs of possible treatments -- ranging from routine maintenance (e.g., ditch cleaning and debris removal)
From page 14...
... 14 NCHRP LRD 82 lowing individuals to sue the state government in tort. However, in that same year the New York Court of Appeals held that the Court of Claims Act did not constitute a waiver of governmental immunity.133 The effect of this ruling was that the state government's liability in tort was limited to claims arising under the separate Highway Law, which provided that the state government was liable for injury due to defective highway conditions during times when roads were subject to patrol.134 Thereafter, the New York legislature amended its Court of Claims Act in 1929 to expressly provide for a general assumption of tort liability by the state government, and further amended it to its present form in 1939.135 With this waiver of immunity in place, a body of case law developed in New York that established a set of general rules regarding the state government's duty to maintain its highways in a reasonably safe condition for travel, at a time when governmental immunity had not been waived by other state gov ernments or by the federal government.
From page 15...
... NCHRP LRD 82 15 courts concluded that its non-ownership of the embankment did "not relieve the state from the duty to afford reasonable safe conditions for travel,"152 and held the state government liable for the injuries. In Juliano v.
From page 16...
... 16 NCHRP LRD 82 firmed that discretionary decisions immune from action in tort are those that are "grounded in social, economic, and political policy."172 In 1988, relying on its earlier decisions, the U.S. Supreme Court set forth a two-part test for determining whether the discretionary function exception applies.
From page 17...
... NCHRP LRD 82 17 agency authorized to make such decisions.194 The discretionary function exception nominally immunizes State DOTs for their negligence in performing activities that involve the exercise of discretion (such as highway planning) , but not in performing operational-level activities that do not involve the exercise of discretion.195 Courts often state that "to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place."196 In situations where there is not a discretionary function exception to tort liability, courts often find immunity through other judicial doctrines.
From page 18...
... 18 NCHRP LRD 82 that it actually exercised its discretion by undergoing a deliberative decision-making process.209 A highway plan may not be entitled to discretionary immunity where it lacks a reasonable basis, such as when the traffic or safety study on which it was based is "plainly inadequate."210 In other words, where a State DOT is sued for negligent highway planning, the State DOT may have to make a prima facie showing that its plan was not negligent in order to qualify for immunity from liability for negligence. There is some authority indicating that, once the decision is made to construct a highway, discretion is at an end,211 as the "planning" process is complete and future activities (design, construction, and maintenance)
From page 19...
... NCHRP LRD 82 19 lines, as nonconformance would exceed the designer's allowable discretion and would indicate that the design fails to meet the professional standard of care. It appears that, in order to qualify for discretionary immunity for negligent design, the State DOT may first have to make at least a prima facie showing that the design was not negligent.
From page 20...
... 20 NCHRP LRD 82 advantage of governmental immunity,234 because even the State DOT would not be entitled to immunity for negligent maintenance. Most tort actions against State DOTs involving injury to travelers allege negligent highway maintenance as the primary theory of recovery.
From page 21...
... NCHRP LRD 82 21 an accident resulted. If the warning signs or guardrails were not required by the original design or by standards at the time of design, but a subsequent policy was adopted to add those features given the characteristics (sight distance, etc.)
From page 22...
... 22 NCHRP LRD 82 As to the county, the Oregon Court of Appeals affirmed summary judgment.263 The county sought immunity on the basis of a "safety audit" authorized by its public works director "under his delegated authority to establish program priorities and resource allocation."264 The safety audit was used to prioritize projects based on a number of factors including "limited sight distance" and "appropriate signage."265 The county road received an "okay" rating, which was a "low priority," and it was decided not to under take improvements to the county road given the "limited County road budget."266 Based on these facts, the Oregon Court of Appeals affirmed that the county was entitled to discretionary immunity because the public works director, "through the safety audit, made discretionary choices about the priority of transportation improvements of the types at issue (road improvements, signage, other traffic controls) , and that policy was implemented by a person with authority to do so."267 Therefore, although it failed to make any of the safety improvements identified by the plaintiff, the county was immunized by the discretionary function exception because it was able to show that it decided to do nothing based on weighing the costs and benefits.
From page 23...
... NCHRP LRD 82 23 duty given a dangerous condition of a state highway.279 The court thus left open the possibility that a policy decision to implement a ranking system for improvements might be entitled to discretionary immunity if the State DOT strictly adheres to that policy. In Avellaneda v.

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