Discretionary Immunity and Changed Conditions

I the past 20 years, many articles about public agencies’ increasing exposure to liability have been published in engineering journals, legal journals, and in the popular press. These articles have helped to further professional awareness of the need to design, construct, and maintain highway facilities with public safety in mind. However, there has been no relief from the relentless juggernaut of litigation, public damages, and revelations of new and unique forms of public injury. This article will discuss construction failures, the need to incorporate safety as a design priority, ethical dilemmas for highway administrators, and the changing view of the courts in response to all of the above. Changing technology and the recognition of previously unknown interactions between building components could lead us to conclude that an increase in structural failures (particularly in an aging environment) and a corollary increase in litigation are likely. ] Media attractions such as the 1983 collapse of the Mianus Bridge in Connecticut have inspired a renewed sense of dedication to safety. Mianus forced us to reconsider time relationships, and time, in effect, leads us to reconsider design. Design is linked to foreseeability—the cardinal principle of safety holds that facilities must be designed to prevent the foreseeable occurrence of harmful incidents. z Foreseeability is a principle shared by engineers and lawyers. For example, safety engineers do not need lawyers to tell them it is foreseeable that a vehicle could leave the traveled pavement and strike a highway appurtenance. This principle of design foreseeability led directly to the development of the concept of the forgiving roadways At the same time, there are many ethical and philosophical dilemmas facing the highway engineer/administrator acting as a public agent. There is a continuing debate involving trade-offs: Public funds as opposed to public needs (new versus remedial). It is difficult to determine the effectiveness of minor improvements such as intersection or horizontal curve projects. The ethical questions involve choices between projects directed toward reducing the number of minor accidents and those resulting in fewer serious accidents. The question is: Do you have a responsibility to try to influence expenditures toward accident reduction, or do you rationalize that, in a bureaucratic system, other levels should make these decisions, th@ wrapping yourself in the discretionary absolution from liability?’