ssessment Flexible Design and Liability John Maiorana ...the need to be flexible is written into documents that are the foundation for highway design.

Transcription

1 ommunity Impact ssessment Flexible Design and Liability John Maiorana John Maiorana is a Vice President and General Counsel with the RBA Group. After attending Rutgers College and Seton Hall Law School, he began a private practice as an attorney. From 1980 to 1990, he worked for the New Jersey Attorney General's office, where he represented the Department of Transportation - specifically, project development for the Project Location and Environmental Analysis Bureaus. In 1990 he joined the RBA Group, an engineering, architecture and planning firm headquartered in Morristown, New Jersey. At RBA, he acts as both the company attorney and director of engineering operations for the state of New Jersey. First off, as an attorney, it's incumbent upon me to let you know that anything I say is not to be accepted as legal advice. Those of you who are government employees can rely upon large law firms, so if there's something that I say that you think is either outrageously incorrect or interesting, talk to your legal representatives and get more information to confirm or refute information in this talk. 1 This presentation comes out of a perception I have about government employees who face a controversial issue in developing a project - one that's not easily resolved with a cookie-cutter approach. I think this is bound to have an effect on your thinking in that it encourages hesitation, discomfort, and occasionally a slowdown in the process....the need to be flexible is written into documents that are the foundation for highway design. I'm here to tell you that it doesn't have to be this way, because the need to be flexible is written into documents that are the foundation for highway design. For example, the forward for AASHTO's "Green Book" - the bible for transportation engineers - asserts that "As highway designers, highway engineers strive to provide for the needs of highway users while maintaining the integrity of the environment. Unique combinations of requirements that are always conflicting result in unique solutions to the design problems." In other words, right up front there's an acknowledgement of the competing interests that occur in designing a highway or making a roadway improvement. The intent of the policy in the "Green Book" is to provide guidance to the designer by referencing a recommended range of values - not a single value - to allow decision-making in dealing with critical dimensions. In other words, the policy allows sufficient flexibilities in order to encourage independent designs that are tailored to particular situations. Let's look at three more quotes from the "Green Book":

2 2 "Emphasis has been placed on the joint use of transportation corridors by pedestrians, cyclists and public transit vehicles, as a recognition that is competing interests for the same right of way. Designers should recognize the implications of the sharing of the transportation corridors." "These guidelines are intended to provide operational efficiency, comfort, safety and convenience for the motorist." "The design concepts presented were also developed with consideration for environmental quality."...our main concern as designers and project development people lies with the end product: auto accidents, pedestrian and bicyclist safety, and so forth. But we're also concerned about challenges to a project on environmental grounds... Again, these quotes acknowledge competing interests and recognize issues that need to be dealt with in the course of project development. Another AASHTO guide, the Roadside Design Guide, emphasizes that it is "a guide. It is not a standard or a design policy. It is intended for use as a resource document from which individual highway agencies can develop standards and policies." And lastly, there's the New Jersey Design Manual, which says "It is recognized that situations will occur where good engineering judgment dictates deviations from the current department design guidelines." All three of these design documents say the same thing: The design process recognizes the need to be flexible. When it comes to tort liability, our main concern as designers and project development people lies with the end product: auto accidents, pedestrian and bicyclist safety, and so forth. But we're also concerned about challenges to a project on environmental grounds, which are of a procedural nature. There is some commonality between the liability associated with both the end project and the procedure used in developing it. Take elements of negligence, for example. They may differ depending on your jurisdiction, but there is a basic "Law School 101" version: First, that the agency has a duty to the motorist, the pedestrian, and the bicyclist. Second, that the burden to prove negligence is on the plaintiff - the injured party. The plaintiff has to prove that the agency violated that duty. He or she has to show that there was a breach of duty; that the breach was the proximate cause of the injury; and that there are damages as a result. How do you define "breach of duty"? The duty is basically "to provide a safe and efficient roadway, but attorneys are going to find a duty to suit their needs when they're attacking the government and trying to pierce its immunities. In New Jersey, this is a big change from 30 years ago, when there was absolute immunity for public agencies. You could not sue the government, the premise being that the government is the sovereign, which dates back to days when

3 Public agencies do have some immunities, but you should not rely upon them in the course of doing your daily job. 3 our country was ruled by the king of England. In 1972, the legislature acknowledged that we must have the right to sue the government for egregious wrongdoing; however, they did preserve some immunities: one, for example, is discretionary activities. However, in the course of doing your job on a daily basis, I would not rely upon immunities, because a good attorney with a serious injury can find a way around them. You can be dealing with a serious injury where a judge is going to find a way to compensate the victim; or a judge who is inclined to support an injured party or at least give him his day in court. So my view on immunities is "pretend they do not exist." It's a bonus for you and your lawyer, because the burden is on the public entity to demonstrate that the immunity is in force. In New Jersey the tort claims act says that the public entity is liable for injury caused by a condition of property if its actions were "palpably unreasonable." What does "palpably unreasonable" mean? Well, the courts scratched their heads over this for a number of years because the legislature didn't define it; I myself don't know what "palpably" means. But there is a published decision in New Jersey, (Appellate Division), that speaks to this: "We conclude that the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical, or outrageous decisions of public servants." This dovetails with the New Jersey legislature's decision to give people their day in court against government under certain limited circumstances. Those circumstances, as defined by that court decision, must involve government actions that were "capricious, arbitrary, whimsical or outrageous." Note that the court did not state "unreasonable." But those other adjectives set a pretty tough standard for a plaintiff to prove. Your decision doesn't have to be the "correct" one, but it has to be reasoned - and it has got to be documented and included in your files. On the other hand, proving that standard might not be so tough if transportation decisions aren't documented. Earlier I noted that there are analogies between tort liability and environmental claims. An environmental impact statement (EIS) is a decision-making tool to enable reasoned choices among various alternatives. The goal is not to develop an objection-free EIS, but rather to demonstrate that environmental consequences have been considered. Now consider the tort liability case and the requirement, as you're designing a road, to document that you have considered alternatives. You need to show that you have considered issues raised by the public. And while your decision doesn't have to be the correct one (maybe there isn't a "correct" one), it must be reasoned. It has to be based upon some logic and a thought process. And obviously, that decision has got to be documented and included in your files.

4 4 The court will not secondguess your decision to design a roadway or an element of a roadway in a certain manner, unless that decision is simply outrageous. One reason why documentation is crucial is that the court will not substitute its judgment for that of a transportation agency - this also applies to tort claims. The court will not second-guess your decision to design a roadway or an element of a roadway in a certain manner, unless that decision is simply outrageous and not based on any conceivable factual scenario or guidelines. Therefore, based upon the administrative record, a plaintiff must prove that there was no rational basis for the agency decision. A project with no documentation is like Christmas for a plaintiff's attorney. It not only allows him or her to get into files beyond those that relate to the project, but also to start taking your deposition. This is an experience to avoid. A deposition may enable the attorney to defeat a motion for summary judgment and actually get to a trial - and you don't want to get that far, obviously. In most cases, if your files are good and your decisions are well documented, then the case will be decided on a motion for summary judgment. Finally, a couple of words about the consultant's role in liability, which is rarely discussed. Generally, consultants are contractually required to comply with agency design standards and procedures. Secondly, they are held to "the degree of care and skill ordinarily exercised by members of the same profession practicing under similar circumstances." So your consultants are really an extension of your staff. When they are asked to do things that are unique or "outside the box," you have to remember - as the agency - that the consultants have an obligation and are subject to a claim if their decisions fall outside of agency guidelines. Therefore, when consultants and the agency are moving beyond a cookie-cutter approach as a team, both need to make sure documentation is in place and that the agency approves the final design. That will make things much easier if there is an unfortunate circumstance in the future. In conclusion: In terms of liability, transportation professionals are in better shape than you might think Standards applied to agency decisions are stricter and different than standards applied to a typical plaintiff in a courtroom setting - transportation professionals are given much more discretion Use logic and stay generally within the guidelines of your own standards, but don't hesitate when a situation calls for initiative and innovative thinking Documentation of your decisions is going to keep you out of trouble

5 5 Your decision doesn't have to be the "right" one but it has to be supported by a factual basis and demonstrate a thought process Context Sensitive Solutions do not mean unsafe designs! FIGURE 6