Transportation Forensics and Risk Management
It is important to recognize the importance and implications of tort liability risk for road agencies. This webpage describes the tort claims process and the engineer’s role in that process.
There’s A Litigious Environment Out There!
Driving is an inherently dangerous activity and the individual drivers make numerous, independent decisions that affect the safety of everyone on the road. Any crash can have various causes and the damages and injuries suffered as a result of a crash can be equally various and numerous. Resulting ambiguities regarding causation and damages, along with the ever-present desire to seek compensation, often set the stage for litigation.
Magnitude of the Problem
No accurate nationwide database exists to track indicators of roadway tort liability environment. Gittings (1997) estimates payments on tort claims for 1991 alone ranged from $145 to $345 million. A 2001 survey (Urban Transportation Monitor) showed on average, state highway agencies faced about 80 lawsuits per year. Average cost to defend a lawsuit was about $70,000 (Urban Transportation Monitor). The road agencies have two major duties:
- Provide Reasonably Safe Roads
- Warn of Existing Hazards
Common Problem Areas
The common problem areas are:
- Design: Inadequate sight distance and failure to install traffic barrier are two major issues in this area.
- Construction: Improper drainage is a common issue in this area.
- Maintenance: Edge of pavement drop-offs, Failure to maintain drainage, Failure to maintain traffic control devices, and Failure to maintain vegetation are four common issues in this area.
- Operations: Two major issues are deficient work zone traffic control (lack of delineation and old markings still visible) and aon-Compliant (with MUTCD) traffic control devices (e.g. sign too low, symbol does not match advisory speed, and not crash worthy).
- Pedestrian and Bicycle Facilities: Three common issues are failure to maintain facilities, deficient temporary traffic control, and open grates.
The objectives of the risk management are making roadways safer, reducing potential exposure to liability, and improving ability to defend suits.
- Organizational Risk Management Activities
- Review of Policies and Manuals: Systematic review, by attorneys, risk management staff and engineers of relevant policies (strive to be a major part of the decision-making process).
- Review Documentation Procedures:
- Does agency take notice of information it has and respond in timely and appropriate manner?
- Does the agency document what it does? (e.g., customer service contacts, traffic control device inventories, construction diaries, etc.)
- Variations from Agency Guidelines
- Show that guideline was considered.
- Provide documented reason for variation.
- Approval by competent authority needs to documented.
- Develop and maintain personnel competence
- Provide appropriate training for all personnel.
- Conduct post-construction reviews.
- Agency practices
- correct known safety defects
- evaluate alternatives carefully and thoughtfully
- document decision-making thoroughly
- Avoid potentially troublesome words in written and spoken communication. For example:
| Acceptable |
Dangerous/Hazardous |
| Enough |
All |
| Safe |
Never |
| Unsafe |
Ensure |
- Individual Risk Management Activities:
- Get professional liability insurance.
- Follow good engineering practice.
- Pay attention to details.
- Pay attention to industry standards and guidelines.
- Avoid “cookbook” engineering.
- Participate in regular and relevant continuing professional development to stay current in your field
- Do not be afraid
- Treat every design, operations, or maintenance decision as if a family member or best friend would be affected
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