Context-sensitive Design: Will the Vision Overcome Liability Concerns?

摘要

During the 1960s the American public began to demand transportation projects with less impact on the community and its environment, even at the cost of reduced safety and mobility. Congress enacted laws and established public policy objectives to protect and enhance the nation's environment and cultural resources. More recently, Congress has encouraged flexibility in highway design to accomplish these objectives. AASHTO, TRB, state departments of transportation, and FHWA have developed a process, which has come to be called context-sensitive design/context-sensitive solutions (CSD/CSS), to meld design with these objectives. The process is envisioned to result in a transportation project reflecting community consensus on purpose and need, with project features addressing equally safety, mobility, and protection and enhancement of the natural environment. This vision requires the exercise of flexibility in design―the balancing of competing interests. Some are concerned that increased exposure to tort liability will result should design standards or guidelines become too flexible, because they would fail to treat safety as a paramount concern. This assumes that safety is considered a paramount concern both in transportation design and in tort law. This assumption is shown to be erroneous; Congress has established statutory requirements and public policy clearly demonstrating that safety, while it is a primary consideration in design, is not to be a paramount consideration. Safety should be balanced with mobility, protection and enhancement of the natural environment, and preservation of community values. Some court decisions, particularly in the federal sector, recognize and grant design immunity to policy judgments that balance competing interests in the design process. Ultimately, tort law must coincide with public opinion and public policy to be in the public interest. Therefore, tort law will adjust to accommodate CSD/CSS processes, reducing liability exposure. CSD/CSS decisions must be documented with a view of telling the whole story to juries in future tort litigation. Such documentation will greatly assist agency counsel in explaining and proving the reasonableness of design decisions in the context within which they were made. The CSD/CSS vision, it is believed, will overcome liability concerns, both in the short term and in the long term.