Chapter One - Introduction

Let us discern for ourselves what is right; let us learn together what is good.
Job 34:4

Long in our history has the safety of what we build been mandated and our failure to build safely a source of liability. The "Road Safety Audit" Program has been developed to proactively improve the safety of the road and street network by identifying and reporting on the safety status of the network. This report argues for the use of the Road Safety Audit Program by showing that it adds value to a transportation entity and by showing that it is legally defensible.

Overview of the Program

The Road Safety Audit Program is a useful device for identifying potential safety improvements in streets, roads, and other vehicular thoroughfares. The potential safety improvements are aimed at reducing risks to people traveling in vehicles on the roadway and to pedestrians and other people on and adjacent to those roadways. The potential safety improvements may be identified at any time in the project's lifespan - in the planning, design, construction, or as-built stage.

However, other road safety programs already exist, which appear to accomplish this same goal of improving road safety. Accordingly, the Road Safety Audit may be rejected by a transportation entity based on the belief that the Road Safety Audit Program adds nothing to the entity's existing safety management program.

Furthermore, if a Road Safety Audit is undertaken, and potential safety improvements are in fact identified, then if those improvements are not fully and promptly implemented, there is the possibility that the people injured in the area of the potential safety improvement may attempt to use the Road Safety Audit to show that the entity responsible for the design, construction, and maintenance of the roadway—being aware of the dangers—failed to perform its duty and correct the roadway to eliminate those dangers. In other words, the existence of the Road Safety Audit potentially poses an increased liability risk for the entity that authorized it.

It follows then that if the Road Safety Audit Program adds nothing to a transportation entity or if the danger of increased risk of liability is significant, the result will be that the Road Safety Audit Program will be discouraged or simply not undertaken. In short, the program will be used only if it adds value to a transportation entity and if it does not create an undue risk of liability for the entity. This report shows that the Road Safety Audit Program adds value to the transportation entity and that it is legally defensible.

Objectives of the Report

Primary Objective

This report strives to thoroughly examine questions of whether the Road Safety Audit Program adds value to a transportation entity and whether the program is legally defensible. Particular attention is paid to the transportation entity responsible for local roads.

Secondary Objectives

This report has four secondary objectives. First, an explanation of how to conduct a Road Safety Audit is presented. Second, the differences between the Road Safety Audit Program and existing safety programs will be explained. Third, the legal issues implicated from a transportation entity's use of the Road Safety Audit Program are identified. Finally, a framework for analyzing these legal issues is provided.

Organization of the Report

The environment in which the transportation entity operates is provided for background purposes in Chapter Two. In Chapter Three, the Road Safety Audit Program is introduced and in Chapter Four it is distinguished from existing road safety programs. In Chapter Five, the legal issues associated with the use of a Road Safety Audit Program are introduced and a method for analyzing them is derived. In Chapter Six, the legal issues are analyzed. Finally, in Chapter Seven, findings, conclusions, and recommendations from the research are presented.

Chapter Two - The Environment of the Transportation Entity

When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof.
Deuteronomy 22:8

To best appreciate the role and significance of the Road Safety Audit Program, it is necessary to understand the environment in which the transportation entity operates. First and foremost, of course, is the entity's obligation to provide safe roads, but the entity also has other obligations. The wane of governmental immunity and the rise of strict product liability indicate that the transportation entity has some responsibility to know the condition of its road network. In addition, as stewards of public coffers, the entity has an obligation to manage its risk. These obligations of the transportation entity form an environment in which the entity must identify and correct road safety deficiencies.

The Overarching Policy of Public Safety

It probably comes as no surprise to find that "[s]afety considerations are center-stage in highway and traffic engineering."¹ Indeed, transportation professor Ezra Hauer goes so far as to describe the goals of "'safe and efficient'" travel as "[h]abit and rote."² Though occasionally at odds with efficiency, the public policy of transportation safety is inherent in the administration of transportation systems and often is mandated by legislation.

Safety as an Inherent Public Policy

Historically Inherent

Transportation engineering has had the twin goals of safety and efficiency since its beginning.³ According to transportation engineer Stanley Polanis, when Burton Marsh became America's first full-time traffic engineer in 1924, "his responsibilities included the development of ways to move traffic safely and expeditiously through Pittsburgh."⁴

Initially the two goals nearly were synonymous, as almost any traffic engineering at that time "brought order to chaos," but eventually the two goals began to conflict.⁵ One need not strain too far to realize that increased efficiency via increased speed probably does little to improve safety.⁶ The extent to which the two goals conflict is of some debate in the transportation engineering profession, but is not as important here as is the fact that the goal of transportation safety is ¯ and always has been ¯ a goal of the transportation engineering industry.

For conflicting views, see Stanley F. Polanis, Some Thoughts about Traffic Accidents, Traffic Safety, and the Safety Management System 32 (Institute of Transportation Engineers Journal, October 1995), and Martin A. Wallen, What Makes a Good Safety Management System 26 (Institute of Transportation Engineers Journal, January 1993).

Morally Inherent

In addition to the historical evidence of the goal of traffic safety in the traffic engineering profession, this goal is part of the moral nature of engineers. The Preamble to the State of Wyoming's Code of Ethics for Engineers requires that "the services provided by engineers...must be dedicated to the protection of the public health, safety, and welfare."⁷ This statement verbalizes the moral obligation of engineers to provide safe projects. And reversing the purported moral obligation provides further illumination: it would be immoral for traffic engineers not to strive to provide safe roads.

The moral obligation of engineers to provide safe roads may be grounded socially, religiously, or philosophically, but it seems to be uniform. Civil engineering professor Ezra Hauer: "We genuinely feel that what we do, matters to safety."⁸ According to transportation researcher Martin Wallen, "[t]o suggest that traffic engineers or highway departments might forget to consider safety in their day-to-day activities can be considered heresy."⁹

Safety as Legislatively Mandated

State legislatures may expressly require their transportation entities to provide a safe transportation system. For example, Michigan and New Jersey statutes allow a transportation entity in their states to be found liable for failure to keep the highway safe.¹⁰ And, in enacting the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress empowered the secretary of the U.S. Department of Transportation (USDOT) to withhold up to 10 percent of a state's funding if the state failed to develop a safety management system in accordance with federal guidelines.¹¹

That transportation safety can be required by federal and state legislatures--ostensibly as the representation of the public sentiment--indicates that the public expects the entity to provide a safe transportation environment. This overarching public policy is addressed further in Chapter Six.

So, not only is improving road safety inherent in the transportation engineering profession and in the transportation engineer, it is demanded of them. But public policies other than safety also contribute to the environment in which the entity operates as addressed in the following section.

The Implied "Duty to Know"

Along with the obligation of the transportation entity to provide a safe road system is another obligation: the duty to know the condition of the entity's roads. This obligation is not explicit as are other duties of the entity, but instead is implied from trends in society and in the law. Trends such as the decline of sovereign immunity and strict product liability illustrate the obligation.

The Erosion of Sovereign Immunity

Up until the latter half of the twentie th century, governments enjoyed immunity from suit. This notion--called "sovereign immunity"--was based on the principle that people could not sue themselves. But in the 1960s and 1970s several state legislatures and state supreme courts reversed the doctrine, effectively allowing governments to be sued in much the same way as a private person.¹²

One result of the erosion of the doctrine of sovereign immunity is that transportation entities can no longer expect to be protected from lawsuits when there is a defect in their road system. Instead, they are expected to monitor and maintain their roads so as to mitigate any potential harm from the defects. In other words, they are becoming evermore expected to know the condition of their roads.

The concept of sovereign immunity is discussed in great detail later in this report.

Strict Product Liability Implications

Another trend in society and the law that has implications for the transportation entity is that of strict product liability. In strict product liability, manufacturers or sellers of defective products are subject to liability for harm caused by a product, which was defective when it left control of the manufacturer or seller.¹³

The implication for the transportation entity from this trend in the law is clear. The public--as the user of services and the consumer of goods--is becoming less tolerant for defects in those services and goods and is holding manufacturers and sellers liable for the defects. This translates into a duty on the manufacturer or seller to know the condition of their product and to improve its safety. Accordingly, this trend can implicate the transportation entity as the provider of transportation services and infrastructure.

Risk Management

A third aspect of the environment in which the transportation entity operates is that of risk management. Risk management is the administrative framework with which an entity--public or private, large or small--can objectively handle risks such as liability and loss. For the public entity, risk management is a necessary component of proper stewardship of the public's money.

Transportation researcher Erskine Walther defines risk management as "a process of identifying and evaluating all pure risk exposures faced by the [transportation] system and selecting the appropriate method or methods for eliminating, reducing, or otherwise handling the risk."¹⁴ Walther goes on to identify five elements of a risk management program: risk identification, risk evaluation, risk handling, implementing the method(s) selected, and continuous monitoring and review of the program.¹⁵ Research by Gary Gittings and Donald Jacobs identifie s five steps similar to Walther's.¹⁶

What is of interest here is not so much the process of risk management, but the impetus for it, and its role. The impetus for risk management is the need for a "logical, necessary, and effective approach for departments of transportation to use in dealing with their emerging tort liability problems." Its role is as one "component of comprehensive highway safety programs."¹⁷ In other words, in addition to improving road safety, a comprehensive highway safety program should incorporate risk management processes to address tort liability problems facing the transportation entity.

Summary

These three aspects of the environment in which the transportation entity operates show the necessity of the entity's undertaking of a safety program. First, transportation entities have the overarching obligation to provide safe roads to the public. While the respective legislative bodies often require this obligation, it is inherent in the profession of transportation engineering. Second, two recent shifts in public policy--the erosion of sovereign immunity and the increase of strict product liability--indicate that transportation entities likely are becoming subject to a "duty to know" the safety condition of their roads. Third, a comprehensive safety program will enable the transportation entity to manage its risk from tort liability in addition to improving road safety.

1 Ezra Hauer, Overview, in The Traffic Safety Toolbox: a Primer on Traffic Safety xii (Institute of Transportation Engineers 1999).

2 Id. at xi.

3 Stanley F. Polanis, Some Thoughts about Traffic Accidents, Traffic Safety, and the Safety Management System 32 (Institute of Transportation Engineers Journal, October 1995).

4 See id.

5 See id.

6 Ezra Hauer, Overview, in The Traffic Safety Toolbox: a Primer on Traffic Safety xi (Institute of Transportation Engineers 1999).

7 Board of Registration for Professional Engineers and Professional Land Surveyors, State of Wyoming, Rules and Regulations & Statutes A-1 (Appendix, 1998).

8 Ezra Hauer, Overview, in The Traffic Safety Toolbox: a Primer on Traffic Safety xi (Institute of Transportation Engineers 1999).

9 Martin A. Wallen, What Makes a Good Safety Management System 26 (Institute of Transportation Engineers Journal, January 1993).

10 See Mich. Comp. Laws Ann. § 691.1402(l) (West 2000) and N.J. Stat. Ann. § 59:4-4 (West 2001), for the Michigan and New Jersey statutes, respectively.

11 Martin A. Wallen, What Makes a Good Safety Management System 26 (Institute of Transportation Engineers Journal, January 1993).

12 Daniel S. Turner et al., National Research Council, Status Report: Tort Liability Among State Highway Agencies 81 (Transportation Research Circular, No. 361 1990).

13 Richard A. Epstein, Cases and Materials on Torts 760 (6th ed. 1995).

14 Erskine S. Walther, U.S. Department of Transportation, Ruralization of Risk Management: A Handbook for Small Transit Operators 2 (1992).

15 Id. at 11.

16 Gary L. Gittings and Donald J. Jacobs, National Research Council, Evolution of Risk Management in a State Highway Agency 70 (Transportation Research Circular, No. 361 1990).

17 Id. at 48; see also Erskine S. Walther, U.S. Department of Transportation, Ruralization of Risk Management: A Handbook for Small Transit Operators 25 (1992).