The Turquoise Trail -- Highway Construction Design and Liability


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 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 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.


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