Estimates by the FHWA indicate that there are an average of 15 signs per mile on the nation’s 3.8 million miles of streets and roadways [6]. The resultant 57 million traffic signs represent a huge investment in materials, labor, equipment, and maintenance costs. While this is a significant investment, improvements using standard traffic control signing are reported in the “1988 Annual Report on Highway Safety Improvement Programs” as having the highest benefit-cost ratio of any highway safety improvement [7]. Properly designed, located, and maintained standard traffic signs and other carefully conceived devices can be an effective method of increasing traffic and operational efficiency and subsequently decreasing the tort liability exposure of roadway agencies.
The concerns about tort liability judgments are valid, as the number of cases is steadily increasing. In almost every state, the shield of sovereign immunity either has been abolished by judicial decisions or has been eroded by legislative modifications to governmental immunity. In one state, for example, the legislature was instructed to enact comprehensive tort claim procedures in the near future or the doctrine of immunity would be abrogated by the state supreme court. In another state, the concept of sovereign immunity was declared unconstitutional [8].
A tort is a civil wrong or injury. The purpose of a tort action is to seek compensation for damages to property and individuals. The following elements must exist for a valid tort action:
• The defendant must owe a legal duty to the plaintiff.
• There must be a breach of duty; that is, the defendant must have failed to perform a
duty or performed it in an improper manner.
• The breach of duty must be a proximate cause of the accident that resulted.
• The plaintiff must have suffered damages as a result.
In highway-related tort cases, the first element is relatively easy to establish. Roadway authorities have been vested with the responsibility of providing reasonably safe travel opportunity for roadways under their jurisdiction. The failure of the roadway agency to properly perform that duty, and that this breach of duty was the proximate cause of an accident, are more difficult to establish. In most instances, establishing that a breach of the legal duty occurred becomes a major issue in tort liability cases. Plaintiffs typically will attempt to establish that the agency having roadway jurisdiction was negligent in its duty and/or a physical condition was permitted to exist that was a hazard.
Negligence is the failure to exercise such care as a reasonably prudent and careful person would use under similar circumstances. Roadway agencies can be judged negligent in two ways: (1) wrongful performance (misfeasance), or (2) the omission of performance when some act should have been performed and was not (nonfeasance). Roadway agencies can, therefore, be judged negligent either by addressing a safety problem incorrectly or by ignoring it. The critical issue in highway tort liability is the care with which highway agencies perform their responsibilities. If it is judged that a reasonable standard of care was not exercised, then the responsible persons and/or organizations may be held liable for injuries and damages that resulted.
In an attempt to familiarize roadway agencies and their employees with the potential liability, and to make them aware of their duties and responsibilities to the traveling public, the NCHRP published Synthesis of Highway Practice 106: Practical Guidelines for Minimizing Tort Liability [8]. In particular, this publication advises agencies to supply a consistent highway environment for motorists. The use of standard design features and uniform traffic control devices is also emphasized.
All states are to adopt the standards of MUTCD as the basis for designing and installing traffic control devices. Some states adopt MUTCD in its entirety, while other states incorporate additional devices and practices into their manuals which address their specific roadway design and driver expectancy needs. MUTCD provides minimal requirements, and states that do prepare their own manuals are required to conform to the national standard. Additional devices not included in either the federal MUTCD or those of the states are frequently developed to provide motorist warning of roadway hazards which, ideally, should be eliminated. The reasons for not eliminating the hazard can include geometric constraints, planned improvements, usefulness of the condition for other purposes, burden of removing the condition, and the lack of a method to correct the situation. When the need to warn motorists involves commonly encountered hazards, such as a stop sign ahead on a rural roadway, then an appropriate warning device can be found in MUTCD. When the hazard is posed by unusual or unique conditions, however, the highway engineer is placed in the difficult position of identifying, or often designing, a warning device that provides a clear message to the motorist of the potential hazard. It should be emphasized that the installation of a warning device does not remove the agency from liability, especially if it can be shown that it was reasonably possible to eliminate the hazard.
