Potential Liability Associated with Unstable Slope Management Programs (2020) / Chapter Skim
Currently Skimming:
Pages 24-33
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 24... ...
24 NCHRP LRD 82 highway construction and maintenance. To avoid liability in the latter situation, State DOTs must demonstrate that they were not negligent.
|
From page 25... ...
NCHRP LRD 82 25 the alternative with the least adverse impact.304 Therefore, considering the risk of slope failure as part of the highway planning process can demonstrate that the agency exercised its discretion even if it does not select the highway route with the lowest risk of slope failure.305 On the other hand, if the agency learns of significant risk of slope failure associated with its planned highway route during the planning stage, and fails to adequately consider alternatives with reduced risk, that could indicate that the agency abused its discretion,306 which could result in courts concluding that the agency's planning decision is not entitled to the discretionary function exception. Furthermore, notwithstanding the discretionary nature of environmental procedural statutes, there may in some cases be substantive law that imposes on the agency an obligatory or mandatory duty to protect against the risk of slope failure (e.g., regulations related to highway development in landslide zones)
|
From page 26... ...
26 NCHRP LRD 82 are liable for dangerous conditions of public property.311 The county argued for the application of the discretionary function exception to the statute, which provided for immunity arising out of a plan or design, where "there was discretionary approval of the plan or design prior to construction, and . . . substantial evidence supports the reasonableness of the plan or design."312 The county contended that the temporary single-lane solution was provided for this rural road because there were several higher priority road sites that had been damaged in the winter storms.313 County engineering personnel testified that the single lane conformed to applicable guidelines, including line-of-sight requirements.
|
From page 27... ...
NCHRP LRD 82 27 initial design and construction, "the state is required to take the steps necessary to return the road to the same general state of being, repair, or efficiency as initially constructed, but nothing more," so that the State DOT is only required to maintain the highway in the condition "deemed to be acceptable during the [initial] design stage."328 Under the California design immunity statute, a "change of physical conditions may cause a public entity to lose its design immunity."329 Once the highway is no longer "in conformity with a plan or design or a standard which reasonably could be approved,"330 immunity arising from the original approved design remains in effect "for a reasonable period of time sufficient to permit the public entity to obtain funds and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity."331 If the public entity cannot obtain funding for the remedial work, immunity arising from the original approved design "shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard."332 C
|
From page 28... ...
28 NCHRP LRD 82 2. Damage to Adjacent Real Property Apart from cases such as Moloso where personal injury occurs during construction, most slope failure cases against highway departments involving "negligent construction" (or "negligent excavation," "negligent compaction," etc.)
|
From page 29... ...
NCHRP LRD 82 29 Pennsylvania statute waives immunity for both dangerous conditions of streets and dangerous conditions of real property under the government's care, custody, or control.354 Although holding the county liable in negligence, the court did not appear to consider whether the work was performed negligently, concluding instead that "it seems that the removal of eight tons of material was the cause of the landslide,"355 which sounds more like strict liability, or at least res ipsa loquitor, than traditional negligence analysis. Although there is a relatively low bar for adjacent landowners to hold the State DOT liable for "negligent construction" where the State DOT has engaged in construction activities on the slope that subsequently fails, that is not the case when the link between the slope failure and the alleged "negligent construction" is more attenuated.
|
From page 30... ...
30 NCHRP LRD 82 identify a "manageable" number of high-risk locations to proactively mitigate.370 Considering the high cost of initiating such a system, including the cost of inspections, the experts opined that the city acted reasonably by not initiating an unstable slope management program such as an RHRS.371 The trial court granted summary judgment to the city, leaving only the State of Montana as a defendant.372 Although the Montana DOT did have an RHRS in place at the time, it likely did not include the Rimrocks site because Highway 3 was located along the ridge, rather than below it, and thus travelers on the highway were not at risk of being impacted by rockfall. Instead, the Montana DOT's experts ("various Montana Department of Transportation[]
|
From page 31... ...
NCHRP LRD 82 31 elements"384 only if the State DOT "had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition."385 The trial court granted summary judgment in favor of the Pennsylvania Department of Transportation (PennDOT) because the plaintiff failed to allege or show proof that PennDOT had actual written notice of the dangerous condition.
|
From page 32... ...
32 NCHRP LRD 82 2. Damage to Adjacent Real Property Where highway slope failure results in damage to adjacent real property, the adjacent landowner typically asserts negligent maintenance in its lawsuit against the State DOT.
|
From page 33... ...
NCHRP LRD 82 33 In negligent maintenance cases, State DOTs will typically attempt to distinguish between routine maintenance activities and capital maintenance decisions, arguing that the latter are entitled to discretionary immunity. However, while courts recognize that funding is limited and that maintenance improvements requiring capital investment involve policy decisions that are entitled to discretionary immunity, the State DOT is not absolved of its duty to maintain the highway in a reasonably safe condition.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.