The New York State Legislature’s recent passage of a Complete Streets law is just the latest step in a nationwide movement for balanced streets that are safe for everyone who uses them. Almost every state has at least one city or town – over 200 jurisdictions in all – that has already adopted or implemented some type of Complete Streets policy. The National Complete Streets Coalition explains that Complete Streets “are designed and operated to enable safe access for all users” and “by adopting a Complete Streets policy, communities direct their transportation planners and engineers to routinely design and operate the entire right of way to enable safe access for all users, regardless of age, ability, or mode of transportation.”
Despite this strong movement, there have been and continue to be difficulties in this process of caring for the needs of all roadway users. One concern in particular is legal liability. Tri-State has worked with municipal officials regarding Complete Streets policies and, on several occasions, these officials have expressed concerns about liability that might arise from implementing Complete Streets policies in their communities.
Tri-State previously wrote about liability in a similar context in 2008. That article addressed liability concerns arising from the implementation of traffic calming measures in Connecticut. At the time, Tri-State’s opinion was that liability fears related to implementing traffic calming measures were unfounded:
Liability issues have caused some municipalities to balk at traffic calming, but in practice these concerns have proven to be unfounded. A 2003 Transportation Quarterly article by Reid Ewing found that there had been only two successful lawsuits against traffic calming programs, one of which was overturned on appeal.
Connecticut (and New Jersey and New York, for that matter) have immunity by law for the design of road improvements and the decision to use traffic calming on a given street. True, if speed humps are designed so poorly that vehicles get damaged solely by driving over the calming device as intended, the town may be liable. Connecticut courts have used the words “totally inadmissible” and “obviously in need of correction” to describe such grossly negligent designs… Many states and municipalities have adopted design standards for traffic calming. Thanks to the design work of the Institute of Transportation Engineers and other groups, it should be easy for a town to build improvements – even old fashioned speed humps – that don’t cross the line from deterrence to damage and danger.
According to Ewing, governments can further protect themselves from liability by showing that traffic calming was installed in a rational manner: that government documented existing traffic problems, considered a number of alternate solutions, and performed follow-up evaluations of the traffic calming program. Agencies must also provide proper notice (i.e. signage) of calming devices which require drivers to slow down.
Given such immunity, local governments should be more concerned with liability issues that may arise from inaction. According to the Federal Highway Administration, an increasing number of cases are being settled where the responsible government entity identified a problem or dangerous traffic condition and chose to do nothing at all. Traffic calming is not the prescribed answer to every situation, but the government with knowledge of a dangerous traffic condition must reasonably react in some way.
Because traffic calming is one type of Complete Streets design, one can extrapolate that governmental immunity should also apply when implementing Complete Streets designs generally. Indeed, additional resources from the Rutgers University Alan M. Voorhees Transportation Center, New Jersey Trans Action Conference, AASHTO Subcommittee on Design 2008 Annual Meeting and Michigan Department of Transportation support this position and highlight some of the limited exceptions where liability might arise.
Ultimately, municipal officials appear to be overestimating the risks of implementing Complete Streets designs. With some limited exceptions, governmental immunity appears to be available to some extent in many jurisdictions. Government officials at all levels considering implementation of Complete Streets designs should consult legal counsel and resources available to them in order to fully understand all of the specifics of governmental immunity in their jurisdictions.
This blog is published to provide general information about and a general understanding of the law, not to provide specific legal advice. This blog does not create an attorney-client relationship and does not constitute legal advice. If legal advice or other expert assistance is required, you will obtain the services of a competent, professional person, and will not rely on information provided on this web site as a substitute for such advice or assistance. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.