Reducing Risk and Liability Mn/DOT Traffic Topics April 21, 2011 Janelle Anderson, P.E. Mn /DOT Tort Claims & Traff

1. Reducing Risk and Liability Mn/DOT Traffic TopicsApril 21, 2011Janelle Anderson, P.E.Mn/DOT Tort Claims & Traffic Standards Engineer

3. Tort Claims Overview Definitions • Design, Construction, Maintenance Issues • Case Studies • Lessons Learned

4. WHAT IS TORT LIABILITY? • A Tort is a civil wrong, other than a breach of contract, for which a court of law will provide a remedy in the form of $$$ money. • Liability – Implies a legal obligation to pay $$$ money for damages or injury

5. Limits of Liability (MN) • established by the Legislature under Tort Claims Act of 1976: • 1976-1984 $100,000 per person /$500,000 per event • 1984-1998 $200,000/$600,000 • 1999 $300,000/$750,000 • 2000-2007 $300,000/$1,000,000 • 8-1-2007 $400,000/$1,200,000 (35W Bridge) • 7/1/2009 $500,000/$1,500,000

6. Negligence – “Failure to do something that a reasonable person would do OR doing something that a reasonable person would not do (jury decides)”

7. Duty -An obligation on the part of an agency to protect others against unreasonable risks. Notice -Defendants (i.e. Gov’t Agencies) have a right to notice of a defect • Actual Notice: Letter, phone record, email, observation, etc. • Constructive Notice: A condition existed long enough that a reasonable person should/would have know of the defect Causation –The negligence caused the damages

8. Duty + Notice + Causation = Liability Sooooooooo……. What can we do to reduce our Risk and Liability?

9. Immunity: 5 Types 1.Sovereign 2. Discretionary 3. Design 4. Official 5. Personal

10. Immunity: 5 Types 1. Sovereign: The Government cannot be sued

11. Immunity: 5 Types (cont.) 2. Discretionary: When government agencies weigh economic, social, environmental and/or political factors when making policy or planning level decisions – ex. Project Selection, Design Standards, Plowing Policy

12. Immunity: 5 Types (cont.) 3. Design: 10-year statute of limitations on design issues (MN Statute 541.051)

13. Immunity: 5 Types (cont.) 4. Official: Legal immunity for Public Officials’ decisions that call for the exercise of judgment or discretion providing the government employee did not knowingly commit a malicious act

14. Immunity: 5 Types (cont.) 5. Personal: If an employee is acting within the scope of their job, they are likely indemnified. ALMOST NEVER AN ISSUE!!

15. Summary Judgment A judge can dismiss a case against an agency based on a written motion describing how the law (statutes and case law) prevents any further pursuit of the case (Immunity). Judges decide about legal issues and juries decide the facts in a case.

16. Design Issues

17. Design Issues - Overview • Design Policy Guidelines • Available Resources/References • Design Immunity

18. Design Policy Guidelines • •Develop a Design Plan • • Scoping Process • Document existing conditions • Establish project objectives • Identify deficiencies-problems • Work with other sections – Traffic, Maintenance, etc. • Develop Alternatives • Document, Document, Document!

19. Design Policy Guidelines • •Develop a Design Plan (cont.) • • Utilize the Available references. • Get required Design Exceptions • It is especially important to document anything you do, and why, if it is something different or outside of the standards. The same Design Guidelines DO NOT apply in all cases! • Document, Document, Document!

20. Resources References

21. Design Case Study Ireland vs. Lengsfeld and Carver County • Background • • Design • • Crash History • • Issues • Lessons Learned • • Importance of Documentation • • Application of Doctrine of Official Immunity Applied to Traffic Engineering Decisions

22. Design Case Study Background • 55 MPH Speed Limit • Curve Warning Sign in Place • STOP AHEAD Sign in Place • Rumble Strips in Place/Practically filled • Crash Occurred in the Middle of a Clear, Bright Summer Day Issues • No Speed Advisory on Curve Warning Sign • No Distance Plaque on STOP AHEAD Sign • STOP AHEAD Sign at 750’ Instead of 450’ • Maintenance of Rumble Strips Crash History • 2 Crashes Per Year • Crash Rate = 0.5 Crashes/MEV • Statewide Avg= 0.6 Crashes/MEV • Critical Rate = 1.3 Crashes/MEV

23. Design Case Study LEGAL PROCESS: CIVIL CASE • County Motion for Summary Judgment (Denied) • County’s Appeal (Reversed District Courts Decision) • Plaintiffs Appeal to State Supreme Court (Refused to Hear the Case-Appeals Court Decision Stands)

24. Design Case Study COURT OF APPEALS DECISION: • REVERSED DISTRICT COURT DECISION • Affirmed that sign placement was discretionary • Acknowledged MnMUTCD’s express deference to Engineering Judgment in installing traffic control devices • Affirmed that Rumble Strip Maintenance is discretionary

25. Design Case Study COURT OF APPEALS DECISION (cont): REVERSED DISTRICT COURT DECISION • Extended the Doctrine of Official Immunity to the decision making of a Traffic Engineer • In the future, Plaintiffs will have to demonstrate that the Government employee engages in willful or malicious acts to prevail

26. Design Immunity • MS 541.051 bars a claim for negligent design in regard to an improvement to real property if it is brought more than 10 years after substantial completion of the project • Eliminating design issues can result in either the case being dismissed or simplified – defending fewer issues • Design immunity forces plaintiffs to make claims of negligent maintenance

27. Construction Work Zone Issues

28. Construction Policy Guidelines • •Develop a Construction Traffic Control Plan • • Follow the Manual of Uniform Traffic Control Devices (MUTCD-Chapter 6) • Shall-Should-May • • Review and Maintain Construction Traffic • Control • Document, Document, Document!

29. Construction Policy Guidelines (Cont.) • Documented Reviews and Decisions regarding Changes in the Work Zone benefit both the Agency and the Contractor • • Examples of Documentation include decision- making checklists, keeping daily sign logs, work zone traffic observations, photos, diaries, etc. • • Documentation is really to your benefit … Really!!!

30. DOCUMENT, DOCUMENT, DOCUMENT!! • It is especially important to document anything you do, and why, if it is something different or outside of the MUTCD.

31. If able to improve something after a crash -do so! • Subsequent remedial measures– • not held liable for doing so if for safety reason.

32. Case Study: • Hwy 61 St. Paul – Bridge over RR Tracks

33. TH 61(Arcade St)over RRBridgeSt. Paul Detour Route TH 61 Br

34. TH 61 Bridge over RR Tracks • Vehicle was driven over 6 blocks ignoring warning signs that the bridge was closed ahead • Vehicle was driven through the ROAD CLOSED signs and down an embankment into a steel beam after the bridge was removed

35. TH 61 Bridge over RR Tracks • Crash occurred around 3:00 AM in June, 2002 • Plaintiff went into the windshield; was not wearing seatbelt • Concurrent Claims were also made against the Contractor, its Subcontractor and the vehicle driver’s insurance company

36. Plaintiff’s Claim against the State • Mn/DOT and Contractor were negligent in maintaining bridge construction project site • Mn/DOT and Contractor failed to provide adequate warning that the bridge was gone

37. State’sPosition: • Traffic control was adequate and following established state policy • Mn/DOT did provide advanced warning to motorists that they were approaching a work zone and that the bridge was out • Mn/DOT did post adequate warning that the bridge was gone and not open to the public • The driver of the vehicle was negligent and under normal, legal circumstances should have been able to avoid this crash

38. Legal Decision Points: • Case went through Discovery Process, which included answering Interrogatories and the taking of Depositions of the Mn/DOT Project Engineer and Project Inspectors, Contractor’s Supervisor and its Subcontractor for traffic control • Summary Judgment Argument was written arguing that the State has the right to delegate the responsibility for traffic control to the Contractor and that right is protected by statutory immunity • Mediation was scheduled and a settlement agreement was reached prior to the case going to trial

39. Reasons to Settle with Plaintiff: • Settled for $45,000 from all parties (Mn/DOT- $1,000, Contractor- $2000, Subcontractor- $1000 and Driver’s Insurance- $41,000) • From Mn/DOT’s perspective, settlement portion was agreed to based on the potential costs involved with continuing to have to defend against suit, potentially including in a court of law.

40. Summary: • Clearly, the vehicle’s driver caused this crash and probably no additional traffic control would have changed this result • However, an issue involving the State and Contractor emerged where neither had realized that the specifications required that the Contractor not only maintain a daily log of the signing, but that they were to provide it to Mn/DOT’s Inspector on a daily basis Recommendation: • Therefore, we must not assume that the language contained within the specifications, particularly dealing with the roles and responsibilities of both parties, will be exactly the same on every project – it may vary

42. Maintenance Issues - Overview • Maintenance Policy Guidelines • Discretionary Immunity • Case Study

43. Maintenance Policy Guidelines • •Developing Maintenance Policies • weigh factors: • Economic, • Social, • Environmental, and/or • Political factors • Leads to… • Discretionary Immunity! • Review and Update regularly • Document, Document, Document!

44. Maintenance Policy Guidelines • •Develop Written Policies • Provides: • Consistent, documented method • Guidance and assistance to employees • Assistance in long-term planning • Protection for Agencies to support defenses • Review and Update regularly • Document, Document, Document!

45. Discretionary Immunity • There is no immunity for ministerial acts: • Developing a snow plowing policy is considered to be a policy-making function • The act of plowing snow is considered to be a ministerial function • There also may be no immunity if an agency merely adopts an engineer’s recommendation based on professional judgment, if there is no record of the agency weighing any of the discretionary factors.

46. Case Study: • Snow Plowing

47. Case Study - Snow Plowing • During a significant snow event, two virtually identical crashes occurred, one on a Hennepin Co. Rd. and the other on a TH. Both involved vehicles going out of control on long bridges, hitting the bridge rail and then, because of a wedge of plowed snow at the base of the bridge rail, both vehicles flipped over the rail. • Both crashes involved serious personal injuries • At trial, both Hennepin Co. and Mn/DOT were found negligent and both agencies appealed the verdicts. Hennes v Patterson and Mn/DOT/Gorecki v Hennepin Co.

48. Case Study - Snow Plowing (cont.) • On Appeal, the case against Mn/DOT was dismissed because it was determined that their maintenance staff had exactly followed their written snow removal policy, a policy that had been adopted by top Mn/DOT staff after consideration of social, economic, and political issues. • On Appeal, the case against Hennepin County was upheld. The Court said that because Hennepin County did not have a written snow removal policy, there was no proof that the procedures their staff followed on the night of the crash were in fact consistent with the County’s policies. • KEY POINT: Having a written snow removal policy afforded Mn/DOT DISCRETIONARY IMMUNITY

49. Training Guidelines (all areas) • •Develop Training – Why? • Keep employees up to date on latest techniques • Employees are informed of policies and procedures • Keep our employees safe • Shows the court a good faith effort to keep roadways safe • Helps give Agencies Official Immunity! • Document, Document, Document!

50. Lessons Learned • The best defense is a good offense –proactive vs. reactive approach to traffic safety. 2. Have a good records system. • Know where crashes are occurring. • Identify hazardous locations. • Document your evaluation of alternative measures. 3. Design has to be maintainable