Chapter Five - Addressing the Legal Issues

It is a trap for a man to dedicate something rashly and only later to consider his vows.
Proverbs 20:25

Even assuming a transportation entity accepts the Road Safety Audit Program as adding value to its organization, the entity may yet pause at fully adopting the RSAP for fear that it will expose the entity to liability. Transportation researchers Turner and Blaschke observe that the fear of a lawsuit has caused many transportation engineers to use "an excessive amount of caution" and to "hide behind their (archaic) standard drawings instead of diligently searching for the best design for every roadway site and every traffic condition."¹³²

The fear of liability that paralyzes some designers also has paralyzed the adoption of the Road Safety Audit Program. Indeed, "[t]he biggest obstacle to road safety audit success in this country can be summed up in one word: liability."¹³³ So this paper now turns from the question of whether the Road Safety Audit Program adds value to a transportation entity to the question of whether the Road Safety Audit Program can be used to establish liability of the entity that uses it.

The Situation

The Parties: The Alleged Victim and the Local Rural Transportation Entity

A setting in which the RSAP might be attempted to be used against the transportation entity is a lawsuit between a person allegedly harmed on the entity's road and the entity. In such a lawsuit, the plaintiff is the alleged victim and the defendant is the transportation entity. Literature was reviewed to identify both parties. The transportation entity responsible for local and rural roads was specifically described as a defendant.

The Plaintiff: The Alleged Victim

The plaintiff in our hypothetical is the road user who, alleging to have been "injured on the portion of the highway which was included in the audit,"¹³⁴ sues the transportation entity responsible for the road. "Road users" include motorists, passengers, bicyclists, pedestrians, and adjacent property owners. The plaintiff's alleged injury may be based on bodily harm or property loss.

The Defendant: The Local Rural Transportation Entity

The transportation entity may be found at all levels of government, in all corners of the Nation. This entity is responsible for the public administration of designing, constructing, maintaining, and operating the roadway, roadside, and their appurtenances. It is this responsibility that leads to the transportation entity being the defendant in our hypothetical.

Transportation entities exist at all levels of our nation's government. The Federal Highway Administration of the U.S. Department of Transportation is the primary transportation entity of the Federal government. At the state level, it is the state's Department of Transportation (DOT) or equivalent agency. Beyond the state level, transportation entities may be found at the county and municipality levels or in districts crossing other political boundaries.

The USDOT/FHWA is primary in the sense that other Federal agencies may have "transportation" branches that provide satellite support to the agency. For example, the U.S. Department of Agriculture has the "Office of Transportation." See generally, Norman Walzer & David L. Chicoine, U.S. Department of Agriculture, Rural Roads and Bridges: A Dilemma for Local Officials (1989).

The Local Rural Transportation Entity Explained.

Transportation researchers Walzer and Chicoine show that while states and counties are free to allocate responsibilities for their road systems as they see fit, three common approaches for allocating responsibilities over their local rural roads exist.¹³⁵ The first approach is where "the State administers virtually all rural local roads," the second "makes counties primarily responsible," and the third blends the two, having "a dual system of local governments."¹³⁶ As of 1989, the second approach was the most common.¹³⁷

The legal analysis of this report concentrates on the local rural transportation entity. The term "local rural transportation entity" is a label used to describe the local governmental organ--whether a town, city, or county government entity¹³⁸--responsible for primarily rural (as opposed to urban) roads. According to the U.S. Department of Transportation, the "vast majority (75.2 percent) of the Nation's roadways are under the jurisdiction of local governments (town, city, county)," with the remaining 24.8 percent under the jurisdiction of the federal and state governments.¹³⁹ The local rural road mileage of 2,238,308 accounts for 56.9 percent of the nation's 3,933,985 total mileage.¹⁴⁰ The local rural transportation entity indeed plays a significant role--as the primary road owner--in the nation's road ownership.

At the Fifth International Conference on Low Volume Roads (1991), transportation researchers Walzer and McWilliams emphasized the significance of rural roads. The authors explained that rural roads provide the farm-to-market connection, the rural-to-urban employment commute, and are used by emergency and other public services.¹⁴¹

Vulnerability of the Local Rural Transportation Entity.

Unfortunately, the local rural transportation entity is hindered with manifold challenges. While more than half the roads in the United States are under control of local rural transportation entities, these entities have access to only limited federal funding¹⁴² and rely primarily on local and state sources of revenue. Federal funding problems stem from a number of sources, including the "poor performance of the farm economy in the early 1980s," rural population declines, and the elimination of federal general revenue sharing.¹⁴³ Faced with the responsibility of managing many miles of low volume roads with inadequate funding "local transportation systems across the United States are financially strapped," with the result that "[s]afe and efficient travel is now threatened in rural areas."¹⁴⁴

Transportation professors Wilson and Lipinski identify other challenges facing local rural transportation entities: violations of "roadway consistency or driver expectation," a "lack of trained professional engineers," and an "increase in tort liability claims."¹⁴⁵

The challenges faced by the local rural transportation entity ultimately may result in increased risk of liability to the local rural transportation entity. Researchers Tate and Wilson found that "[m]anpower and funding are the major factors limiting counties' abilities to developand maintain [safety improvement programs]."¹⁴⁶ Forgone safety improvement programs may lead to missed roadway defects, and as our litigious society searches for a "deep pocket," roadway defects spawn tort suits.¹⁴⁷ Thus it appears that the local rural transportation entity--the transportation entity responsible for more than one-half of our nation's roads--is faced with financial constraints, defective roads, a lack of expertise, and rising liability. The vulnerability and importance of the local rural transportation entity warrant special consideration in this report's examination of the legal effects of a transportation entity's use of the Road Safety Audit Program.

The Protection: Sovereign Immunity

The first step in deciding whether the Road Safety Audit Program can be used to establish a local rural transportation entity's liability is to determine whether--in any event--the entity can be found liable for harms arising out of the roads it manages and operates. This determination may be dispositive: if the entity is immune from suit, the entity cannot be found liable. If the entity can be found lia ble, then further inquiry into the effects that the laws of evidence might have on using the RSAP report against the transportation entity is required. The doctrine of sovereign immunity is concerned with the first step; later inquiries are discussed in later chapters.

This report is concerned only with the immunity of sovereigns in their own state court system. The question of whether a state transportation entity is immune from suit in a federal court (i.e., the effect of the Eleventh Amendment) is not addressed here.

Sovereign immunity provides governments at all levels with a protection from lawsuits. According to transportation research by Turner et al., the "concept came to have two meanings: (1) the government could not be sued unless it gave its express permission, and (2) even where the government allowed itself to be [sued], it was not responsible for the acts of its employees."¹⁴⁸ The immunity of municipalities for their torts has been a subject of debate for decades, with those who wish to defend governments saying "sovereignty" and those who wish to hold governments responsible saying "fairness." Researchers Fuller and Casner frame the two sides of the debate in their 1941 Harvard Law Review article. The authors explain that defenders of munic ipal sovereignty "fear that fraud and excessive litigation would result in unbearable cost to the public in the event municipal corporations were treated as ordinary persons for purposes of tort liability."¹⁴⁹ Proponents of holding municipalities liable point to the "unfairness to the innocent victim" and to "the social desirability of spreading the loss"¹⁵⁰ in advocating against sovereignty.

The early rule regarding sovereignty of municipalities is summarized in "[t]he maxim, 'The King can do no wrong.'"¹⁵¹ This simple doctrine, which gives full liability protection to municipalities, according to Dray,¹⁵² was used in the 1788 English case of Russell v. The Men of Devon.¹⁵³ Dray further explains that this English doctrine of providing tort immunity to municipalities eventually became American doctrine.¹⁵⁴ Then, as Dray notes, the 1842 case of Bailey v. New York¹⁵⁵ limited this liability enjoyed by governments to only those torts arising out of governmental functions; the government could be held liable for torts arising out of its proprietary functions,¹⁵⁶ discussed below.

The Erosion of Sovereign Immunity

The protection that transportation entities once enjoyed from the doctrine of sovereign immunity has eroded via common law and the lawmakers--Congress and the state legislatures. Unsatisfied with results which were patently unfair to injured parties, state Supreme Courts began restricting the defense of sovereign immunity.¹⁵⁷ Turner et al. go on to explain that though this abrogation of the defense initially was regarded by some "as a legal fluke," it caught on, and through the 1960s and 1970s, "a series of states lost their immunity...through court rulings."¹⁵⁸

Not to be outdone, legislatures began enacting statutes that eviscerated the defense. In 1946 Congress passed the Federal Tort Claims Act,¹⁵⁹ which expressly authorizes suits against the United States government. Section 2674 of the Act says, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances."¹⁶⁰ Although Congress went on to limit the cause of action with respect to allowable damages¹⁶¹ and the statute of limitations,¹⁶² the Act marked the death knell of absolute United States governmental immunity.

State legislatures also began to modify their sovereign immunity doctrines. In 1996 Glennon reported that "[i]n the last thirty years, the doctrine of sovereign immunity has either been completely waived or modified in most of the States."¹⁶³

Wyoming's sovereign immunity history exemplifies the wrangling and complexity commonly involved in eroding a state's sovereign immunity. In 1978, in the case of Oroz v. Board of County Commissioners of the Board of County of Carbon, 575 P.2d 1155 (1978), the Wyoming Supreme Court abrogated immunity for Wyoming's counties, municipalities, school districts, and other subdivisions of the government, making it effective on July 1, 1979. But in 1979, the Wyoming Legislature enacted the "Wyoming Governmental Claims Act" (W.S. §§ 1-39-101 et seq.) including W.S. § 1-39-111, which contained the phrase "public facilities" as a source of liability. This phrase was interpreted by the Wyoming Supreme Court in State v. Stovall, 648 P.2d 543 (1982), to include "highways," finding the Wyoming DOT liable. Dissatisfied with that result, the Legislature repealed W.S. § 1-39-111 in 1986, and enacted W.S. § 1-39-120, which said the state was immune for defects in plans, for failing to construct or reconstruct, or for the maintenance of bridges, culverts, highways, roadways, streets, alleys, sidewalks, or parking areas. But in the 1993 case of Romero v. Hoppal, 855 P.2d 366 (1993), the Wyoming Supreme Court interpreted the word "maintenance" in W.S. § 1- 39-120 as holding the state liable for negligent maintenance, saying "maintenance" is a noun, not a verb. Accordingly, the government may be liable for negligent acts made while maintaining, but is immune from liability arising in the results of the maintenance acts.

A Continuum of Immunities

In a comprehensive 1992 survey of the status of state acts, AASHTO determined that of the 42 states that responded to the question of whether their state has "sovereign immunity as to highway tort claims," seven said they had immunity, five said they did not, and 30 said that their immunity was limited.¹⁶⁴ A similar compilation is found in section 895B of the 1982 Second Restatement of Torts.¹⁶⁵ This earlier compilation adds two considerations regarding the transportation entity's tort liability. First, whether a transportation entity has sovereign immunity as to its tort claims may depend on whether the entity is the state entity or a local entity.¹⁶⁶ Second, some of the more common features in those states with limited immunity were identified, including the requirement of legislative consent to suit, liability limited by dollar limits or insurance coverage limits, liability dependent on whether the alleged harmful act was of a general or proprietary nature, or limits and procedures enacted by a claims board.¹⁶⁷

The American Association of State Highway and Transportation Officials.

A continuum of immunities emerges. On one extreme are the states that have sovereign immunity and on the other extreme are those that have no sovereign immunity. In the middle of the continuum are those states with limited immunity. An additional consideration in each of the three positions is the state-local immunity distinction: whether the state and the local entities are treated the same. Again, in this report, the concern is the immunity of the local transportation entity.

Summary

People who are injured in the area of the potential safety improvement identified in the audit may attempt to use the RSAP report 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. The local rural transportation entity, though disadvantaged by inadequate funding and expertise, is responsible for more than one-half of the nation's roads. As such, the local rural transportation entity is particularly susceptible to a risk of liability. If this danger of increased risk of liability is significant, then the result will be that Road Safety Audit Programs will be discouraged or simply not undertaken by the local rural transportation entity.

However, the doctrine of sovereign immunity may protect some governmental entities from liability. Though some states have completely abolished the doctrine so as to subject their transportation entities to the risk of liability typical of any person, other states have kept the defense. Still others have crafted various limitations into their doctrines such that their governmental agencies can be found liable only under certain circumstances.

If a plaintiff injured on the entity's roads sues the local rural transportation entity, the relevant legal question then is whether the Road Safety Audit Program can be used to establish a transportation entity's liability. The method for addressing this question is now explained.

Methodology

To analyze the legal question of whether the RSAP report can be used to establish liability of the local rural transportation entity in a lawsuit arising out of injuries on the entity's roads, three legal inquiries arise:

• First, can the transportation entity be found liable in any event in a lawsuit arising out of injuries that occurred on the entity's roads?
• Second, if the entity can be found liable, can the RSAP report be used as evidence to show the entity's negligence?
• Third, if the entity can be found liable and if the RSAP report can be used as evidence against the entity, does the public interest in improving road safety through the RSAP outweigh holding the entity liable?

This report will address these three inquiries.

Because each of the 50 states has jurisdiction over such laws and because each state is free to determine the laws within their borders, subject of course to the United States Constitution, no simple answers to the three inquiries are available. In theory it is possible that there could be 50 different approaches (one for each of the states) to answering each of the three inquiries that comprise the overarching legal question. To avoid such complexity, it will suffice to obtain a framework of guidelines for use in answering the three inquiries. This framework will be based on the outcome from legal analysis of the three inquiries in a sample of states. Note that while the ensuing legal analysis focuses on the local rural transportation entity, this three-step framework is applicable for addressing the legal question at any level of transportation entity--whether federal, state, or local.

Six states were chosen for this sample. In each of these states, laws are researched with respect to a RSAP report and assumed parties (the plaintiff: the alleged road user victim; the defendant: the local rural transportation entity). Although this is not a statistically valid sample, because only a mere framework of relevant approaches to the legal question is desired, a sample of six states adequately provides this framework.

From Chapter Three: a "report on the conclusions drawn [and] recommendations regarding aspects which involve unnecessary or unreasonable hazards." Austroads, Road Safety Audit 43 (Austl. 1994).

The Six States: Arizona, Louisiana, Michigan, New Jersey, North Carolina, & Wyoming

Section 895B of the 1982 Second Restatement of Torts (Restatement) compiles the 1982 sovereign immunity positions of the 50 states and the District of Columbia.¹⁶⁸ For each of the 50 states, the compilation summarizes the judicial and legislative activity that led to the immunity position, and includes state and local entity immunities.¹⁶⁹ The table in Appendix II shows the Restatement's breakdown of the state and local immunities of the fifty states in 1982.

Though the Restatement included status of the District of Columbia, (D.C.), D.C. is abandoned in this study. This is done because D.C. is not a state.

As discussed above, a continuum of immunities emerges from the Restatement'scompilation. The state and the local entity could have absolute immunity, no immunity, or limited immunity, yet the immunities of the two entities are independent: the immunity status of the state entity itself does not necessarily control the immunity status of the state's local entities. An entity's absolute immunity "prevent[s] any recovery against the [entity] for tortious conduct."¹⁷⁰ "No immunity" indicates that the entity is "subject to liability in tort."¹⁷¹ Finally, "the tort immunity of the State and its agencies can be...severely limited by either legislative or judicial action."¹⁷² Table 1 shows the quantities of states with the various combinations of state and local immunity positions.

Examples of such limitations include distinctions between discretionary and ministerial acts, governmental and proprietary acts, insurance effects, and statutory tort claims procedures. These are discussed below.

Table 1. Number of State Positions regarding State Entity and Local Entity Sovereign Immunity

After Section 895B of the 1982 Second Restatement of Torts. See Appendix II for more detail on this Restatement.

Table 1 shows that absolute local immunity was non-existent in 1982. All local entities somehow could be found liable for their torts. Six states provide no immunity to their local entities while 44 allow their local entities limited immunity. Four states provide absolute immunity to their state entities, two give no immunity to their state entities, and forty-four states allowed their state entities limited immunity.

This study examines the law in six states to determine the answer to the legal question at the heart of this report (to what extent the RSAP report might be used to establish the local rural transportation entity's liability). Relevant to this study then--again, in dealing with the local rural transportation entity--is the Restatement's finding of the split between states with limited local immunity and no local liability (44 and six, respectively).

Even if the Restatement had identified states with absolute local immunity, the law of those states would not be explored because it would add nothing to the analysis. Those immune entities, by definition, cannot be found liable for their tort.

The six states sampled are Arizona, Louisiana, Michigan, New Jersey, North Carolina, and Wyoming. Arizona, Michigan, New Jersey, North Carolina, and Wyoming are five of the 44 states that were reported as having limited local immunity in the Restatement; Louisiana is the one state selected out of the six reported by the Restatement as having no local immunity.

Arguably, New Jersey may not be considered a "rural" state. However, New Jersey's laws concerning local immunity still will assist in developing the desired legal framework. In fact, the law draws a much clearer distinction between local and state transportation entity than it does between the urban and rural transportation entity. Thus, for our purposes here--attempting to develop a legal framework for analyzing the three legal inquiries--New Jersey's treatment of the local entity will be sufficient.

MINITAB for Windows (Release 11.21, 1996) is the statistical software used to select the six states. The random sampling tool of MINITAB was used for selecting the states, notwithstanding the fact that statistical validity of the sample was not the goal. Initially, three states with no local immunity and three with limited local immunity were selected, but preliminary research into the local immunity of those states revealed that their local immunity position had changed from that reported in the 1982 Restatement. Indeed, Louisiana is the only state out of those reported in 1982 as having no local immunity that still appears to have no local immunity. Therefore, the names of the remaining 49 states (i.e., without Louisiana) were entered into MINITAB and five states were selected from those 49: Arizona, Michigan, New Jersey, North Carolina, and Wyoming. These are the five sample states with limited local immunity. Louisiana, the sixth sample state, has no local immunity. As shown below, further research verified the local immunity positions of these six sample states. Table 2 lists the six states that were researched in this study.

Using MINITAB's random sampling tool was the method used to effectively draw the six states "from a hat." Perhaps it was overkill, but at a minimum it helped psychologically to have the six states' selection process preserved in a MINITAB output file.

Table 2. The six states selected for legal research in this study

The Process: Legal Research

Having selected the six states, the next step was to research the law in each of the states to determine how each state would handle the question of whether the RSAP report could be used against the local rural transportation entity to establish the entity's liability. Again, this question can be broken into three legal issues, each of which is discussed in turn:

• First, can the transportation entity be found liable in any event in a lawsuit arising out of injuries that occurred on the entity's roads?
• Second, if the entity can be found liable, can the RSAP report be used as evidence to show the entity's negligence?
• Third, if the entity can be found liable and if the RSAP report can be used as evidence against the entity, does the public interest in improving road safety through the RSAP outweigh holding the entity liable?

Statutes and cases were reviewed in the three inquiries. From these and any treatises or articles, the common principles and rules were culled and any eccentricities or exceptions thereto were identified, explained, and summarized.

To understand the la w with regard to the first issue, the law of each of the six states was researched to determine boundaries of the local rural transportation entity's sovereign immunity in that state. Statutes, court opinions, and legal commentaries and articles were examined to verify the status of the entity's local entity immunity and to ascertain what limitations (if any) exist on the entity's immunity.

The second issue breaks down further into two inquiries. The first inquiry is whether the plaintiff can gain access to the RSAP report through the state's "Freedom of Information Act" or through the rules of discovery. The second inquiry is whether the plaintiff can admit the report into evidence even if the plaintiff gains access to the report. Again, statutes, court opinions, and legal commentaries and articles were reviewed to understand these issues in each of the six states studied.

The third issue breaks down further into three inquiries. The first inquiry is whether the Road Safety Audit Program is merely a tool used by the local rural transportation entity in accomplishing the entity's legal duties. The second inquiry is whether decisions arising out of the RSA report are part of the entity's governmental actions. The third inquiry is into the effect that using the RSAP report against the entity might have on the public policy of improving road safety.

A framework was developed that explores inquiries in each of the three legal issues and how the law of each of the six sample states treats those issues. This framework directly answers the legal question at the heart of this report for the six states studied and provides guidelines for answering the question when the question is asked with respect to a state that was not specifically studied.

The legal research was performed with an assumed plaintiff, defendant, and RSAP report. The assumed plaintiff is the person allegedly harmed on the local rural transportation entity's road and the assumed defendant is the local rural transportation entity. For the hypothetical report, the Austroads definition is used: a "report on the conclusions drawn [and] recommendations regarding aspects which involve unnecessary or unreasonable hazards."¹⁷³ We now turn to analysis of the legal issues.

132 Daniel S. Turner and Joseph D. Blaschke, National Research Council, Effects of Tort Liability on Roadway Design Decisions 27 (Transportation Research Record 1512, 1995).

133 Darcy Lewis, Road Safety Audits: Will They Work in the U.S.?, Traffic Safety: The Magazine for Promoting Safer Roadways, National Safety Council 15 (July/August 2000).

134 Austroads, Road Safety Audit 26 (Austl. 1994).

135 Norman Walzer & David L. Chicoine, U.S. Department of Agriculture, Rural Roads and Bridges: A Dilemma for Local Officials 14 (1989).

136 Id. at 14-17.

137 Id. at 14.

138 Office of Highway Information Management, U.S. Department of Transportation,Our Nation's Highways: Selected Facts and Figures 20 (1996).

139 See id.

140 See id.

141 Norman Walzer & Ruth T. McWilliams, National Research Council, Financing Low-Volume Roads and Bridges: Results from a National Survey 3 (Transportation Research Record 1291, Vol. 1, 1991).

142 Norman Walzer & David L. Chicoine, U.S. Department of Agriculture, Rural Roads and Bridges: A Dilemma for Local Officials 3 (1989).

143 Norman Walzer & Ruth T. McWilliams, National Research Council, Financing Low-Volume Roads and Bridges: Results from a National Survey 3 (Transportation Research Record 1291, Vol. 1, 1991).

144 Norman Walzer & David L. Chicoine, U.S. Department of Agriculture, Rural Roads and Bridges: A Dilemma for Local Officials 3 (1989).

145 Eugene M. Wilson & Martin E. Lipinski, National Research Council, Role of Technology Transfer Centers in Developing Safety Programs for Low-Volume Roads 151 (Transportation Research Record 1291, Vol. 1, 1991).

146 Joseph Tate III & Eugene M. Wilson, Mountain-Plains Consortium, Adapting Road Safety Audits to Local Rural Roads 67 (1998).

147 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 1 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

148 Daniel S. Turner et al., National Research Council, Status Report: Tort Liability Among State Highway Agencies 80 (Transportation Research Circular, No. 361 1990).

149 Edgar Fuller & A. James Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437, 437 (1941).

150 See id.

151 W. Perry Dray, Municipal Tort Liability, 18 Wyo. L.J. 220, 220 (1964).

152 Id. at 221.

153 Russell v. The Men of Devon 2 Term. Rep. 667, 100 Eng. Rep. 359 (KB 1788)

154 W. Perry Dray, Municipal Tort Liability, 18 Wyo. L.J. 220, 221 (1964).

155 Bailey v. New York 3 Hill (NY) 531, 38 Am. Dec. 669 (1842).

156 W. Perry Dray, Municipal Tort Liability, 18 Wyo. L.J. 220, 221 (1964).

157 Daniel S. Turner et al., National Research Council, Status Report: Tort Liability Among State Highway Agencies 77 (Transportation Research Circular, No. 361 1990).

158 Id. at 81.

159 28 U.S.C. §§ 2671-2680.

160 See id. § 2674.

161 See id. § 2674.

162 See id. § 2401.

163 John C. Glennon, Roadway Defects and Tort Liability 19 (1996).

164 Administrative Subcommittee on Legal Affairs, American Association of State Highway and Transportation Officials, Survey on the Status of Sovereign Immunity in the States - 1992 5 (1993).

165 Restatement (Second) of Torts §895B reporter's note (1982).

166 See id.

167 See id.

168 See id.

169 See id.

170 See id. §895B cmt. a.

171 See id. §895B cmt. b.

172 See id.

173 Austroads, Road Safety Audit 43 (Austl. 1994).