Legal Issues in Transportation

Brian A. Coon, PhD, JD, PE, PTOE, ACTAR

Dr. Brian A. Coon• B.S.E.B.S.E., Mechanical Engineering, University of Iowa, Mechanical Engineering, University of Iowa

• M.S.E.M.S.E., Civil Engineering, University of Nebraska, Civil Engineering, University of Nebraska

• Ph.D.Ph.D., Transportation Engineering, University of Nebraska, Transportation Engineering, University of Nebraska

• J.D.J.D., Criminal Law, University of Nebraska, Criminal Law, University of Nebraska

• Fulbright ScholarFulbright Scholar, Swedish Road and Transport Institute, Swedish Road and Transport Institute

• Police OfficerPolice Officer, Kansas Law Enforcement Training Center, Kansas Law Enforcement Training Center

• Professional Engineer Professional Engineer (P.E., Civil and Mechanical)(P.E., Civil and Mechanical)

• Professional Traffic Operations Engineer Professional Traffic Operations Engineer (PTOE)(PTOE)

• Accredited Traffic Accident Reconstructionist Accredited Traffic Accident Reconstructionist (ACTAR)(ACTAR)

• Licensed AttorneyLicensed Attorney, Colorado, Kansas, and Nebraska, Colorado, Kansas, and Nebraska

• Certified ADA Coordinator Certified ADA Coordinator (ACT) (1(ACT) (1stst in the United States) in the United States)

WHERE I'VE WORKED . . .

Transportation Is Legal & Political

• Engineers have an inherent reluctance to engage in politics and the law.

• In actuality, engineers are ideally suited for these realms.

• Comfortable dealing with rules and codes.

• Look for the “best alternative.”

• Working within physical constraints.

• Limited by economic resources.

Why Is Politics Important?

• Existing infrastructure and systems are in a state of disrepair and continuing to decline.

• Current estimates are that 32% of the nation’s major roads are in poor or mediocre condition, and 24% of its bridges are structurally deficient or functionally obsolete.

• “[I]f there's even one life that can be saved, then we've got an obligation to try.”

The Truth of the Matter

• Transportation Engineers are involved with life and death more than you may think.• Motor Vehicle Crashes: 35,332• Falls: 26,009• Alcohol-Induced: 25,692• Murder: 16,259• Murder (firearm): 11,078• HIV Disease: 8,369• 9/11 (World Trade Center): 2,996

Factor of Safety

• Critical or Non-Critical Components

• Substantial financial loss

• Serious injury or death

• What do we consider?

• Law, policy, or industry standards

• Risk analysis

• Failure mode

• Effects analysis

Previous Driving Records (Fatalities)

Professional Obligations

• Is there a professional obligation to engage the public on these issues as engineers?

• We know the public is using the facilities we design!

• We know that we can do better—but it takes “stakeholder buy-in” and support.

• Money.

Highway Engineering Pranks

Long-Term Sustainability

• MAP-21: Moving Ahead for Progress in the 21st Century Act, the first “long-term” highway authorization enacted since 2005.

• The legislation signed into law in July 2012 lasts for only 27 months.

• Still have not addressed the core issue of creating a dedicated and reliable source of transportation funding.

Sources of Revenue

• Generally no change to the tax rates.

• These taxes consist of gallonage taxes on fuel, an annual tax on heavy vehicle use, a load rating-based tax on heavy truck tires, and a retail sales tax on truck and trailer sales.

• $0.184/gallon of gasoline.

• $0.244/gallon of diesel.

• $0.183/ 126.67 ft3 of CNG.

Gas Tax Revenues

• Gas tax revenues: primary means to fund the planning, construction, operation and maintenance of transportation infrastructure and systems.

• Revenues are declining due to inflation, rising construction costs, and the growing use of alternative fuels and more fuel-efficient vehicles.

Decrease in Vehicle Miles

• According to the 2009 National Household Travel Survey (NHTS), the number of miles driven per person has declined since 2001 for every age group of drivers.

• Nationwide, about 8 percent of the U.S. population now have no vehicle access.

• The very things we encourage (carpooling, mass transit, biking, walking) decreases revenue.

Additional Funding

• $2.4 billion from the Leaking Underground Storage Tank Trust Fund.

• From the General Fund of the Treasury• $6.2 billion to be deposited in the Highway

Account in FY 2013.• $10.4 billion to be deposited in the Highway

Account in FY 2014.• $2.2 billion to be deposited in the Mass

Transit Account in FY 2014.

So What Is the Point?

• If we are not proactive, we end up focused on responding to political pressures, diverting resources that could be dedicated to other more critical issues.

• Long-term sustainability of the transportation system is critical.

• Transportation Engineers have a vital role.

• It is critical—of paramount importance—that we become engaged in the process.

Legal Issues in Transportation

• No, it was a lead-in, not a “bait and switch.”

• What liabilities do we have as transportation engineers?

• The National Traffic Signal Report Card gave an overall “D.”

• We are allowing people to design who don’t know how to design.

• The political process can be a legal liability.

I Have A Problem!

• “If something is not done about the traffic problem on my street, someone is going to be killed and it will be your fault.”

• This is usually followed by a demand for various traffic control measures and often backed up with petitions from residents.

• Generally, just because a person has a driver’s license, they think they understand traffic engineering

Levels of Culpability

• Ordinary negligence is a person's failure to be careful under particular circumstances or to follow rules and standards.

• Gross negligence or recklessness is carelessness accompanied by a disregard for the resulting harm.

• Intentional tort is the purpose of committing an act that violates a right or causes injury or knows that a violation or injury will occur.

Negligence

• The most common definition is to the effect that negligence is the failure to exercise reasonable and ordinary case under the circumstances.

• In the case of a transportation engineer, the duty of care may be measured against that which would be exercised by a reasonable and competent transportation engineer.

What Is Reasonable Care?

• Compliance with law or ordinance.

• Compliance with administrative regulations and procedures.

• Published standards.

• Following industry custom (certain, uniform, and notorious).

• No requirement to do every possible thing to protect a life.

Legal Effects of the MUTCD

Kansas

K.S.A § 8-2003: Secretary of transportation to adopt sign manual.

The secretary of transportation shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the manual on uniform traffic-control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.

Missouri

• Sections 226.010 and 227.220 of the Revised Statutes of the State of Missouri authorize MoDOT to prescribe uniform traffic control devices on the state highways. Pursuant to the provisions of the above statutes, the Missouri Highways and Transportation Commission at the July 10, 2001 commission meeting approved and adopted the Federal Manual on Uniform Traffic Control Devices (MUTCD).

• Because MoDOT does not use many of the “common” size signs in the Standard Highway Signs and Markings book, they have produced their own sign detail policy, Sign Management System Sign Catalog.

The Importance of Consistency

• Follow the law. Failure to do so is negligence per se.

• Follow written policy. Fight for it, if necessary.

• Fight for consistency. If policy is violated one place, document it and justify it. If policy is violated a lot, change the policy.

Stop Signs

• Stop signs installed to control speeding: (a) don’t work

• (b) are frequently violated

• (c) are detrimental to safety,

• (d) are not warranted in the Manual

• (e) actually increase speeds between stop signs.

The Best Defense . . .

• The 2009 Manual on Uniform Traffic Control Devices (http://mutcd.fhwa.dot.gov)

• Page 50, Numbered Line 05.

• “YIELD or STOP signs should not be used for speed control.”

Standard Brochures

Standard Brochures

Original 2009 MUTCD

• http://mutcd.fhwa.dot.gov/kno-faq.htm

• Section 1A.13. “Standard statements shall not be modified or compromised based on engineering judgment or engineering study.”

Revision 1, 2009 MUTCD

• The decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment. Thus, while this Manual provides Standards, Guidance, and Options for design and applications of traffic control devices, this Manual should not be considered a substitute for engineering judgment. Engineering judgment should be exercised in the selection and application of traffic control devices, as well as in the location and design of roads and streets that the devices complement.

Red on Top, Green on the Bottom

• Some early signals used only one set of two light bulbs to illuminate all the lenses for all four directions.

• The sides of the signal that faced north and south would have the red lens on top and the green lens on the bottom, while the sides that faced east and west would have the green lens on top and the red on the bottom.

Contact Information

Brian A. Coon

City of Wichita

455 N. Main, 7th Floor

Wichita, KS 67202

(316) 268-4448

bcoon@wichita.gov