Saturday, October 24, 2015

A Crash Course in Road Design and State Liability

Vanderbloom v. State of Vermont, Agency of Transportation, 2015 VT 103

By Thomas M. Kester

If two cars crash in the Town of Berlin and no one is around, does it make a sound? My guess is—probably (philosophical arguments aside). But is the State liable for allegedly negligent design and construction of the road?

The main thrust of the plaintiff’s case (the plaintiff being one of the people hurt in the car crash) is that the State “had a duty to exercise reasonable care in the design, construction, and maintenance of highways, including Route 63,” and that the State’s design created “freezeback.” I initially thought “freezeback” was one of powers Mr. Freeze had in the Batman & Robin movie. “Freezeback,” as it is known in the road-design arena, is the process where melted snow and ice refreeze in the “travel” portion of the road rather than flowing into the shoulder. Plaintiff asserts that the State gave the cold shoulder to the road shoulder when designing Route 63 and is liable.

It will be a cold day in hell when the State doesn’t assert some sort of sovereign immunity and they did just that in this case. The State asserted that they have sovereign immunity from “[a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways” under the Vermont Tort Claims Act. The superior court agreed with the State, ruling that they were entitled to judgment as a matter of law on summary judgment. So, onto the appeal.

The question is whether the State waived its sovereign liability under the Vermont Torts Claims Act (VTCA). There is a general waiver under the VTCA, but there are eight exceptions, one of those being that the State preserves its sovereign immunity against “[a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways.” 

The plaintiffs try to overcome the State’s immunity by asserting that there are genuine disputes of material fact, specifically: (1) whether the State used a 1964 Vermont Roadway Design Manual or the 1954 American Association of State Highway Officials’ Policy on Geometric Design of Rural Highways (AASHO Policy); (2) whether the design of the Berlin road conformed to this standard; and (3) whether the State “purposefully deviated from that standard.”

The SCOV goes into the history of how the Agency of Transportation (AOT) designed this road. Though it's through a few layers, the Vermont Roadway Design Manual states AOT staff should “become familiar” with the AASHO Policy. The SCOV reasons that there is a “significant [distinction] with respect to the design features at issue in this case,” and it had to with how pitched or sloped shoulders should be as to allow drainage but not cause cars to slip off the road. Both parties agree that the road “was designed in conformity with the instructions in the Manual.” However, the Plaintiff relied upon its expert, that it wasn’t clear which standard the State followed because the Manual referenced the AASHO, and ultimately the Plaintiff argued that “the design standards in the Manual were not really ‘standards’ at all.” Maybe the Manual is open to interpretation like a 10th-grade book report of what the whale in Moby Dick represents to Captain Ahab?

The SCOV rules in the State's favor ultimately. It reasons that “nothing in the Manual requires that the AASHO standards be followed in every instance” or that the AASHO “trumps” the Manual. Further, just because the State relies upon the AASHO for guidance does not mean the State adopts it in preference to its own Manual. The final two arguments are that the State shouldn’t have adopted the standards it did, and that the Manual doesn’t reflect the State’s standards—both of which don’t carry any weight to the Court. (Of particular note is Footnote #5, as plaintiff’s expert “conceded that the State’s design in this case complied with the Manual,” the Court didn’t reach the question of “whether the State ‘purposefully deviated’ from a chosen standard.”)

I don’t know why I keep choosing cases that involve roads, but if anyone from the AOT is reading this please figure out how to reduce potholes during the winter, as I (and my car’s suspension/alignment) will be most thankful.

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