reducing risk and liability mn/dot traffic topics april 21, 2011 janelle anderson, p.e. mn/dot tort...
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Reducing Risk and Liability Mn/DOT Traffic Topics
April 21, 2011
Janelle Anderson, P.E.Mn/DOT Tort Claims & Traffic Standards Engineer
• Tort Claims OverviewDefinitions
• Design, Construction, Maintenance Issues
• Case Studies• Lessons Learned
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
• 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
Negligence –
“Failure to do something that a reasonable person would do OR doing something that a reasonable person would not do (jury decides)”
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
Duty + Notice + Causation = Liability
Sooooooooo…….
What can we do to reduce our Risk and Liability?
• Immunity: 5 Types1. Sovereign
2. Discretionary3. Design4. Official5. Personal
• Immunity: 5 Types
1. Sovereign: The Government cannot be sued
• 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
• Immunity: 5 Types (cont.)
3. Design: 10-year statute of limitations on design issues
(MN Statute 541.051)
• 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
• 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!!
• 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.
Design Issues
Design Issues - Overview
1. Design Policy Guidelines2. Available Resources/References3. Design Immunity
• 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!
• 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!
Resources References
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 TrafficEngineering Decisions
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
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 CourtDecision Stands)
Design Case Study
COURT OF APPEALS DECISION:1. 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
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
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
Construction Work Zone Issues
• 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 TrafficControl
• Document, Document, Document!
• 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!!!
DOCUMENT, DOCUMENT, DOCUMENT!!
• It is especially important to document anything you do, and why, if it is something different or outside of the MUTCD.
If able to improve something after a
crash -do so!
Subsequent remedial measures– not held liable for doing so if for safety reason.
Case Study:
• Hwy 61 St. Paul – Bridge over RR Tracks
TH 61(Arcade St)
over RRBridge
St. PaulTH 61 Br
Detour Route
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
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
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
State’s Position:• 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
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
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.
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
Maintenance Issues - Overview
1. Maintenance Policy Guidelines
2. Discretionary Immunity
3. Case Study
• 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!
• Maintenance Policy Guidelines•Develop Written Policies
Provides:
Consistent, documented method Guidance and assistance to employees Assistance in long-term planningProtection for Agencies to support defenses
Review and Update regularly • Document, Document, Document!
• Discretionary Immunityo 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
o 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.
Case Study:
• Snow Plowing
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.
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
• 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 safeShows the court a good faith effort to
keep roadways safeHelps give Agencies Official Immunity!
• Document, Document, Document!
Lessons Learned1. 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
Lessons Learned (cont.)4. Decision making: what would a reasonable engineer
do given the same set of circumstances.
5. No matter what you do, at some time you are likely to be accused of not meeting reasonable standard of care. Documentation will help you in these situations.
6. Keep up with changes in design and operational issues -
Lessons Learned (cont.)
7. Follow the Standards
8. Make training an important part of your employee development program.
9.Consider low cost interim measures to address a hazardous condition
How We Got Here
• Minnesota has reasonably good tort law
Caps to damage awards (State agencies) Exclusions Case Law establishing and defining
Discretionary and Official Immunity 10-year statute of limitations on design (MS
541.051)
How We Got Here (cont.)
• Minnesota has reasonably good tort law
Agencies indemnify their employees when acting within the scope of their job
Agencies aggressively defended themselves:Were proactive with training and safety
programsPaid up when wrong/no easy settlements
What to Take Away
Bring Your Decisions Under an Umbrella of Immunity
• Make Engineering Decisions Consistent with Agency Policies
• Make Policies while considering Social, Economic, Environmental, and Political Factors.
• Do the best job you can do• Use common sense and do what a reasonable person
would do• Adhere to standards, plans/ layouts• Review the workzone in the field• Discuss situations with your supervisor – if needed -
project engineer, chief inspector, superintendent, etc.
• DOCUMENT, DOCUMENT, DOCUMENT!!!
Recommendations:
CONCLUSION
Do not live in fear of being sued. Be reasonable, think & act SAFETY, have good records and you should have no problem meeting the Reasonable Engineer Standard of Care.
Fundamental Belief:
• Proper Documentation of Decision Making during Design and proper Review and Implementation during Construction results in not only a better design and safer work zone, but clearly reduces Risk and Liability
Claims Statistics:• How many Mn/DOT claims are processed?
• Answer: – 379 total claims in 2010 – 43 of those were paid (11%)– total paid out - $34, 327
Claims Statistics:• How many Mn/DOT claims processed are
related to Maintenance?– 251 Potholes (66%) (7 paid)– 28 Debris ( 7%) (3 paid)– 57 Other (15%) [18 Maint. Paid (tar)]– 336 total (88%) (28 paid)
(Mowing, plowing and striping claims paid through Allied)
QUESTIONS?Janelle Anderson, P.E.
Mn/DOT Tort Claims & Traffic Standards Engineer
Refer Claimant to Appropriate
District where damage occurred
Claimant contacts Mn/DOT
Did damage happen on State
Property?
No
Yes Refer to Proper Jurisdiction: City,
County, etc.
Did damage involve a state fleet vehicle in
motion?
Yes
No
Refer to Risk Management
Division of DOA
Claimant fills out form, sends to
Risk Management Division of DOA
Risk Management Division of DOA sends claim to Mn/DOT Tort
Claims Unit (TCU)
Mn/DOT Tort Claims Unit (TCU) does investigation
District sends Claimant a Claim
Form
TCU Recommendation to DOA: Pay the claim?
Yes
Risk Management Division of DOA
sends denial letter
DOA asks claimant for cost
estimates
DOA receives estimates,
prepares Release Agreement and
sends to claimant
Claimant returns signed Release
Agreement
Attorney General and TCU sign Release
Agreement and claim is paid (under $7,000)
No
1. TCU contacts District
2. District gathers data
3. District sends data to TCU
Did damage happen on a Construction
Project?
End
End
District Refers to Project
Engineer (see additional
information)
Yes
No
End
Tort Claims Process
Case Study:• I-94 Guardrail at Bridge Pier
–Schaeffer/Perry vs State of MN, Chrysler Motors Corporation
Case Study (Cont.):Background
Dr & wife with 2 of their 8 children driving on I-94 (no weather issues), drifted off roadway to the right, struck the end of guardrail (twisted end) and rode the guardrail to the bridge pier. Dr & wife died, children survived.
I-94 section straight and flat, 10:1 inslopes, road clear and dry
Case Study (cont):Legal Process
1. CIVIL Case• State motion for Summary Judgment based
on Discretionary Immunity(Denied)• State Appealed (Affirmed District Court
Decision - denied)• State went to jury trial
Case Study (cont.) :Court of Appeals Decision (C9-89-1028)
1. Affirmed District Court DecisionoDetermined planning level decisions are protected
(immunity) butoOperational level decisions are not protectedoDiscretionary immunity is to be construed narrowly
Case Study (cont.) :Court of Appeals Decision (C9-89-1028)
2. Appeals Court Opiniono Dispute over whether the decisions to design, install and
maintain the guardrail were planning or operational in nature.
o Court ruled original design and installation were operational decisions because no documentation existed otherwise
Case Study (cont.) :Court of Appeals Decision (C9-89-1028)
2. Appeals Court Opinion (cont.)
“In cases where discretionary immunity applied, the government was able to articulate the specific reason why a certain challenged decision was made.”
Case Study (cont.):• Outcome:
– State lost at trial, paid almost $500,000– Considered appealing based on discretionary
immunity– Felt Mn/DOT acted appropriately but lost anyway– Considered amending tort claim law 3.736