TO: Doug Wolf,
Staff Attorney, New Mexico
Environmental Law Center
FROM: Danielle
Visuaño [legal intern at NMELC]
DATE: July 30, 2001
RE: Highway 14 Construction Design and Liability
I. Introduction
In
New Mexico immunity from negligence liability is waived for the
construction of highways. However, immunity may be restored for
a construction decision that deviates from the applicable standards
if certain requirements are met. Hence, even if a decision to
reduce proposed lane widths from twelve to eleven feet on Highway
14, through areas of mountainous terrain between Cerrillos and
Madrid, was thought to be a deviation it could be sheltered from
negligence liability. Decisions for construction that are well
reasoned, documented, and involve the public demonstrate the
exercise of due care and strengthen the notion that such decisions
should remain free from negligence liability.
Furthermore, because a recent
study on American rural collector roads demonstrates that widening
lanes from eleven to twelve feet increases fatalities and injuries,
the Highway Department's liability might be increased if it chooses
twelve foot lanes over safer eleven foot lanes.
II. Legal Standard
New
Mexico provides "that governmental entities and public employees
shall only be liable within the limitations of the Tort Claims
Act and in accordance with the principles established in that
Act." NMSA 1978, § 41-4-2(A). Waiver of immunity from
negligence liability for highways, roadways, and streets is stated
as follows:
(A) The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties during the construction, and in subsequent maintenance of any . . . highway, roadway, street, . . .
Id. at § 41-4-11(A) (1991). However, the next Subsection defines the limits of liability as applied to highways, roads, and streets as follows:
(B) The liability for which immunity has been waived pursuant to Subsection A of this section shall not include liability for damages caused by:
(1) a defect in plan or design of any . . . highway, roadway, street, . . .;
(3) a deviation from standard geometric design practices for any . . . highway, roadway, street, . . . allowed on a case-by-case basis for appropriate . . . technical reasons, provided the deviation:(a) is required by extraordinary circumstances;
(b) has been approved by the governing authority; and
(c) is reasonable and necessary as determined by the application of sound engineering principles taking into consideration the appropriate . . . technical circumstances.
Id. at §
41-4-11(B) (1991). Therefore, to restore the immunity that is
waived in 41-4-11(A), if there was a decision to change the proposed
lane width from eleven to twelve feet, the decision must meet
a requirement of 41-4-11(B) in order to be sheltered from negligence
liability. In this case, shelter from liability can be sought
under 41-4-11(B)(3) for deviation from design standards. The
state has the burden of providing evidence on the plan or design
exceptions. Romero v. State, 112 N.M. 332, 335 n.2, 815 P.2d
628, 631 n.2 (1991).
Section 41-4-11(B)(3) provides
a strong shelter from negligence immunity in the case of the
Highway 14 deviation from the applicable standards. [footnote
1] However, it must be shown that the decision is due to extraordinary
circumstances, is reasonable and necessary, and is approved by
the governing authority in order to be sheltered from negligence
liability. Extraordinary circumstances requiring a change of
lane width from the proposed width of twelve feet to eleven feet
can be demonstrated with data showing that wider lanes decrease
safety.
III. Eleven Foot Lanes Are Safer
Although
the current road construction standards and guidelines (which
some assert support use of twelve foot wide lanes) were selected
with reasoning that they increase public safety, a recent report
suggests that widening lane widths to twelve feet can increase
traffic fatalities and injuries on rural collector roads. See,
Robert B. Noland, Traffic Fatalities and Injuries: Are Reductions
the Result of 'Improvements' in Highway Design Standards?,
CTR. FOR TRANSP. STUDIES, DEPT. CIV. AND ENVTL. ENG'G, IMPERIAL
COLL. SCI, TECH. AND MED, LONDON (2000), at http://www.cts.cv.ic.ac.uk/documents/publications/iccts00203.pdf.
Noland explains that any reduction in fatalities and injuries
previously associated with use of twelve foot lanes is the result
of many factors including: increased medical service, age, and
safety technology. Id. at 2.
Noland's results identify
that highway design improvements, in particular an increase in
lane width to twelve feet, actually results in an increase in
traffic fatalities and injuries. Id. at 18. It creates
a comfort factor for drivers which in turn encourages the driver
to increase the speed of travel and risk taking. Id.
IV. Applying Standard to These Facts
A
decision to maintain the current lane width of approximately
eleven feet (or reduce the proposed lane width from twelve to
eleven feet) because of the results of Noland's report demonstrates
an exercise of due care to protect the public. According to the
Conservation Law Foundation (CLF), deviations from guidelines
and standards in place for road construction are acceptable if
due care is exercised. Conservation Law Foundation, Take Back
Your Streets: How to Protect Communities from Asphalt and Traffic
(1998), at http://www.clf.org/pubs/index1.htm. Guidelines
are established to assist in the decision making process on how
to build a reasonably safe road and they must be flexible to
protect the scenery, community character, public health and safety,
and to mitigate the effects of such a project. Reasons for deviation
from the guidelines, because they are not applicable or can not
be reasonably met, must be documented to reflect the accuracy
and thoughtfulness of the resulting decision. A project that
contains well-defined public goals, is well documented, and involves
the public from its inception will stand up against a claim of
negligence.
In Clallam County Washington,
the Clallam County Board of County Commissioners decided, in
a decision dated November 28, 2000, that plans deviating from
the guidelines and made to be consistent with the City's comprehensive
plan also reflect the interest in protecting the public. These
plans coordinate with the city and county comprehensive plans
and conform more to the local desires, reflecting the exercise
of due care to mitigate the effects of such a plan. It allows
for effective notice to the public and for public involvement.
This in turn protects the rural safety and integrity. Considering
the local desires and involving the public serves to create a
well-rounded workable agreement since all affected parties have
the chance to come together to iron out the defects.
In the case at hand, if the
New Mexico State Highway and Transportation Department wishes
assurance in the event that building eleven foot lanes was treated
as a deviation from the standards, the decision to deviate could
also be supported by the Highway Department's knowledge gained
from the reports discussed above that not deviating would result
in an increase in fatalities and injuries, and would not be in
the public's interest. The result of not deviating from the standards
would in turn expose the Highway Department to liability because
they knew or should have known that such adverse effects would
result from not deviating.
V. Conclusion
In sum, the decision based on the public's concern for safety,
the Highway Department's knowledge of the effects of the decision
to maintain current the lane width of Highway 14 at eleven feet
through mountainous terrain, and supported with technical data
would demonstrate the extraordinary circumstance, the reasonableness,
and the necessity for the decision. To further strengthen the
decision to deviate from the standards, the reasons must be documented.
Exercise of reasonable care could be shown if the decision is
part of a public process and if made consistent to a comprehensive
plan for the area. This type of decision would contemplate the
public interests and mitigate the effects of such a project on
those interests. This would meet two of the three requirements
for the deviation exception under 41-4-11(B)(3). The only obstacle
is the governing authority's approval of the decision to deviate
from the highway standards to maintain narrower driving lanes.
If this approval is received, the decision to maintain the lane
width would be sheltered from negligence liability because it
would meet the requirements of 41-4-11(B)(3). [ footnote 2]
___________________ [ Footnotes]
1 There is also a shelter from liability for highway departments under NMSA 1978, § 41-4-11(B)(1) when the defect challenged by a lawsuit is in the plan or design. This would be a weak argument for shelter from liability in the Highway 14 project, as the Highway Department is involved in the plan or design.
2 Under Subsection A of 41-4-11, there is liability exposure for subsequently failing to maintain the highway. The purpose of the waiver of immunity for the maintenance of highways is for the protection of the public. Fireman's Fund Ins. Co. V. Tucker, 95 N.M. 56, 59, 618 P.2d 894, 897 (Ct. App. 1980). In Fireman's Fund Ins. Co., the Court of Appeals expressed that Section 41-4-11 does not create an obligatory duty for the Highway Department. Id. However, an obligation to inspect the highways and fences along the edges of the highway in order to protect the public existed before the enactment of the Tort Claims Act. Id. In another case, the Court of Appeals stated that if "the fact finder determines that the Department failed to comply with the design of the highway . . . the lack of agreements [with abutting landowners for construction and maintenance of the fence] or other protective measures would be considered maintenance." Madrid v. New Mexico State Hwy. Dep't, 117 N.M. 171, 175, 870 P.2d 133, 137 (Ct. App. 1994). This negligence claim may be mitigated by the Highway Department's demonstration that the decision to deviate was made for public safety reasons. This can be supported by the technical data, and public interest and support discussed in the memorandum.