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Pages 34-46

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From page 34...
... 34 NCHRP LRD 82 planned approach to deal with rockfall sites as funds were made available, litigations brought against the state because of rockfall accidents were either settled out of court or findings favorable to the state resulted."432 One reason for evolving the priority list into the RHRS was that the Oregon DOT's "legal counsel recognized the value of having a systematic way to set rockfall project priorities and allocate the limited repair funds"433 and believed "that greater legal protection is afforded the agency by having the RHRS in place."434 In 1993, while acknowledging that the RHRS had not yet been "tested in court," and again without citing any legal authority, the developers of the Oregon DOT RHRS wrote: The courts have indicated that it is unreasonable to expect an agency to have at its disposal enough funds to deal with all safety related issues at any given time. However, a system must be in place by which needed safety projects, including rockfall remediation projects, can be identified and developed as funding is made available.
From page 35...
... NCHRP LRD 82 35 by decision-makers to prioritize slope remediation projects, that could demonstrate that the State DOT is negligent or at least that it has failed to exercise its discretion, so that it is not immunized by the discretionary function exception. The remainder of this section examines the reported case law involving unstable slope management programs, to consider whether there is legal support for the contention that the programs help State DOTs avoid tort liability for highway slope failures.
From page 36...
... 36 NCHRP LRD 82 tion, there were a number of slopes with a higher hazard priority ranking.458 Mr. Badger declared that the Washington State DOT elected to defer remediation of Slope 1867 until a planned future construction project that involved relocation of a portion of I-90, during which Slope 1867 would be eliminated.459 Upon hearing the Washington State DOT's motion for summary judgment, the trial court found "that the USMS as a system qualified for discretionary immunity,"460 so that slope remediation decisions based on the USMS could be entitled to the discretionary function exception.
From page 37...
... NCHRP LRD 82 37 was thus effectively prevented from eliciting testimony from either expert witness regarding potential protective devices or other mitigation measures that could have been used on the slope itself. Evidentiary rulings such as excluding the 2005 report also handicapped the plaintiff 's argument that the Washington State DOT had notice of a dangerous condition at Slope  1867 and should have taken action to warn travelers.
From page 38...
... 38 NCHRP LRD 82 management decisions are not negligent to the extent the discretionary function exception does not apply. In 2015, in Pszonka v.
From page 39...
... NCHRP LRD 82 39 first states in the nation to develop a fully-funded program that would proactively address the stabilization of unstable slopes. Washington's program is unique in that it addresses rock slope instabilities and soil slope instabilities.
From page 40...
... 40 NCHRP LRD 82 Notwithstanding the June 2015 consent agreement, in Novem ber 2016, shortly after Snohomish County was dismissed from the lawsuit on immunity grounds, the State of Washington (without admitting liability) consented to a judgment in the amount of $50 million, to resolve all remaining personal injury claims against all state agencies arising from the Oso landslide.508 One will never know how different the outcome would have been if the negligent design and maintenance claims against the Washington State DOT had not been dismissed in June 2015.
From page 41...
... NCHRP LRD 82 41 dangerous condition of the site, or at least that the injuries were reasonably foreseeable.518 In order to invoke the CGIA waiver of immunity for dangerous conditions on public highways, the plaintiffs alleged that the Colorado DOT negligently failed to maintain the highway "free from dangerous conditions."519 The plaintiffs alleged that the Colorado DOT breached its duty to maintain by, among other things, "not installing devices to prevent boulders from falling on the highway,"520 such as the rock bolts or wire mesh suggested by Mr. Andrew's affidavit. In addition to the duty to maintain, the plaintiffs also alleged that, given the actual knowledge of the rockfall hazard rating at the site in question, the Colorado DOT was negligent by failing to warn travelers, or by failing to close the highway and direct traffic to alternate routes.521 Relying on Mr.  Andrew's affidavit that the rockfall hazard was attributable to design, the Colorado DOT moved to dismiss based on the highway design exception to the CGIA waiver of immunity.522 The trial court denied the motion to dismiss, finding that "[t]
From page 42...
... 42 NCHRP LRD 82 As to the alleged negligent failure to install protective devices such as rock bolts or wire mesh, the court sided with plaintiffs, indicating that the Colorado DOT could have a maintenance duty to install protective devices, even if not included in the original design, if protective devices "are necessary to return the road to its original state of being, repair, or efficiency as initially constructed."536 In reaching this conclusion that the duty to maintain may include installation of mitigation measures that were not included in the original design, the court was persuaded by an affidavit from the plaintiffs' expert consultant: In my opinion, the installation of rock bolts and wire mesh can be used in a wide range of applications from initial design of rock slopes to maintenance and remediation of rockfall hazards. Rock bolts and wire mesh are routinely installed following initial design and construction to mitigate the risk of rockfall."537 In a concurring opinion, some of the justices appeared to lament that the Colorado DOT was potentially subject to liability in this case, in light of Mr.
From page 43...
... NCHRP LRD 82 43 "The RHRS does not prescribe what is to be done after the ratings are determined.
From page 44...
... 44 NCHRP LRD 82 C Defending Limitations of Unstable Slope Management Programs State DOTs may be concerned that, as in the Medina and O'Grady cases, tort plaintiffs will attempt to use the State DOT's unstable slope management program to demonstrate liability of the State DOT.
From page 45...
... NCHRP LRD 82 45 traditionally subject to the discretionary function exception,580 similar to the decision to locate a highway in an area prone to rockfall. However, on appeal, the plaintiffs "shift[ed]
From page 46...
... 46 NCHRP LRD 82 mony of defective maintenance of the wastewater system, which Dr. Watts contended resulted in water outflows that triggered the rockfall.

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