Tort Liability Defense Practices for Design Flexibility

In response to community and developmental demand, many state transportation agencies have modified their design policies to specifically require staff to consider historical, environmental, and other context-related elements during the design process rather than merely focusing on following generally accepted standards. However, the threat of tort claims continues in a number of states and that is having a damping effect on designers willingness to tailor designs to suit projects unique contexts rather than designing projects that follow standard templates. This research, which focuses on tort liability defense practices and cases involving the exercise of discretion in design, will hopefully provide a framework for determining successful strategies employed when defending design decisions made following the principles of Context Sensitive Solutions (CSS). This digest explores the concept of discretion as a defense to government tort liability, and defending these actions based on the designers and policy-makers discretion may be described by terms such as governmental immunity, official immunity, design immunity, or policy immunity. The existing law is relevant to analysis of tort legal defenses available to protect the decisions inherent in CSS. Many departments of transportation have adopted CSS principles or related concepts such as Practical Design to encourage flexibility in design decision-making. The digests processes for documenting design decisions, articulating clearly the various factors considered in making a decision with a focus on decisions that involve design exceptions, should be of great help to attorneys, administrators, information officers, document retention officials, risk managers, planners, designers, and others responsible for such decisions.