How can I minimize exposure to tort liability?

  • Consistency/Uniformity - It is important to treat similar conditions in a similar manner across the agency or school district. There cannot be one set of design standards or traffic control at one school within an agency, and a different set of design standards or traffic control at another school having similar conditions within the school district or agency.
  • Documentation - It is important to document traffic studies and decisions and WHY a particular traffic control or design decision was made. Wording in agency files should be very carefully reviewed before it is preserved. Unsupported opinions, informal comments, or inflammatory statements should not be retained in files (such as the word, "Hazardous" . . . Unless to say that a condition is "Not Hazardous"). Engineering conclusions should not be made by a non-engineer, and traffic studies should be done by a trained engineer or under the supervision of an engineer.
  • Prioritize improvements/changes - The courts will recognize that an agency or school does not have the money to fix all traffic problems identified as a part of a traffic safety program, and agencies are not obligated to provide "perfect" traffic conditions. However, developing a reasonable prioritized list of improvements will provide an agency protection in the event a collision occurs at a location on your list that is ranked below the higher priority locations.
  • Follow-through - The creation of a prioritized list of improvements does not give any protection from tort liability if the agency does not make any progress towards fixing any of the problems or safety concerns that have identified. Furthermore, if notes are made that a problem exists and a condition needs to be corrected, it should be corrected. The lack of corrective action when an agency or school has been given adequate actual (or constructive) notice of a defect will result in liability problems. Courts also recognize that it takes a reasonable amount of time to design and implement corrective actions, and will give an agency that time to implement corrective actions for problems that have been identified and prioritized.
  • Schools/Local Agencies work together - Schools and local agencies need to work as a team to ensure safe traffic conditions for student and parents, especially when a problem is identified. No greater problem exists than when two agencies point a finger at each other during a lawsuit or when a problem arises. Juries do not look fondly at agencies who argue about responsibility for traffic safety when a collision involving a child occurs and they will likely 'punish' one if not both agencies who cannot work together. This cooperative effort between school districts and local agencies should not begin after a collision occurs but should occur up front when a SRTS program is initiated. The best way to prevent a lawsuit is to create the safest traffic conditions possible at a school and along the school route which will minimize the chance of a collision.
  • Follow MUTCD/State Guidelines/ITE - School officials, parents, and elected officials must understand that traffic engineers must follow the Standards and Guidelines in the Manual on Uniform Traffic Control Devices (typically adopted as State Law), other agency or State guidelines and practices, or State-of-the Practice guidelines within the Traffic Engineering industry such as Institute of Transportation Engineer (ITE) Recommended Practices and AASHTO Guidelines. Furthermore, studies that are considered definitive traffic engineering treatises such as the Zegeer (FHWA) crosswalk study are also accepted by courts as state-of-the-practice guidelines that should be followed when making a traffic control decision. For example, just because a committee feels that a crosswalk marked with a fluorescent pink color may provide more warning to drivers as a crossing location, in actuality there is no such study that would support that assertion, and state law prohibits the use of a non-standard color of crosswalk.
  • Training - Training of school or agency staff is vital to protect local agencies from litigation. School crossing guards must be trained before being allowed to work in traffic. Staff or volunteers who work as a parking lot monitors or those who monitor the crossing guards must be trained on what they are allowed to do, what to wear, and how to keep themselves and the children safe. Training is also needed to understand what to do when a collision occurs. An attorney should be consulted before making any subsequent remedial measures after a collision occurs.
  • Maintain what you build/provide - Agencies must be able to maintain what they build. For example, flashers, electronic devices that automatically detect pedestrians or provide driver feedback must be kept in operational condition. Crosswalks and signs must be replaced when they wear our, are vandalized or are no longer functioning properly. Trees or bushes that block sidewalks or traffic signs must be trimmed to allow sidewalks to function or to assure adequate visibility. In addition, there should be a program to periodically monitor traffic control devices and report any deficiencies to the appropriate agency for repair. It may be better to not have a flasher at a school rather than have a flasher that is not operating or is not maintained.

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