Liability and Risk Management Associated with At-Grade Pedestrian Crossings

Andrew Cooley
Institute of Transportation Engineers. ITE Journal

Nov 30, 2006 19:00 EST

INTRODUCTION

There is increased pressure to enhance at-grade pedestrian crossings. This phenomenon will make most agencies susceptible to litigation. This feature will discuss the effects of design treatments on litigation exposure and published standards on litigation and some practical steps that agencies can follow to manage this risk.

PRESSURE TO ENHANCE PEDESTRIAN FACILITIES

There is greater interest in pedestrian facilities and increased pressure to enhance multimodal transportation. Part of this pressure can be traced to the belief that pedestrian injuries and death rates continue to be significant.1 In addition, there is a belief that pedestrian enhancements will have a positive effect on safety.2

Along with the interest in designing more pedestrian facilities, design engineers have more options. The 2000 edition of the Manual on Uniform Traffic Control Devices (MUTCD) was expanded to include in-pavement flashing lights as a pedestrian amenity.3 The Federal Highway Administration's (FHWA) 2004 "Fed Safe" program provides an interactive process for design selection and includes options from street furniture to raised pedestrian crossings.4

ITE recently published an informational book that does a great deal to establish an acceptable nomenclature for design alternatives. Designers can use a "pelican crossing," a "puffin crossing," or a toucan crossing."5 Adding to this pressure is the availability of additional grant funds for discrete pedestrian enhancements.

PUBLISHED STANDARDS SET LIABILITY

Road design lawsuits are essentially engineering malpractice cases. In evaluating whether a design is negligent or defective, the courts frequently look to published standards to measure conduct.6 MUTCD is such a published standard, and some version of it is the law in all states using federal funds. Courts will look to publications of the American Association of State Highway and Transportation Officials to determine negligence.

From a strictly litigation standpoint, the best standards are clear, objective and quantifiable.9 These types of standards, when followed, can produce less exposure to litigation. If an agency can establish that it has complied with a national standard, that often is a defense. If the standard is objective and quantifiable, compliance can be plainly measured. In contrast, if the standard is subjective and qualified, the agency has more litigation exposure.

PUBLISHED STANDARDS FOR PEDESTRIAN DESIGN ARE INCOMPLETE AND RESEARCH IS CONFLICTING

There Is Little Guidance in MUTCD but a Lot of Options

One of the challenges faced by engineers working on pedestrian improvements is the status of research and the absence of clear guidance. Throughout the United States and internationally, there are a wide range of potential pedestrian enhancements. Research in the area is constantly evaluated and incorporated into MUTCD when a particular device has proven effective. MUTCD contains a number of options for pedestrian crossings.

One significant challenge has been adopting a consistent nomenclature. Pedestrian engineers can use a "bulb-out" or a "curb extension," which can mean the same thing.10 Researchers evaluating a pedestrian improvement with light-emitting diode signs may call them "roving eyes"; other researchers may call them "scanning eyes" or "animated eyes."11

The Research Is Conflicting

An engineer trying to sort through the various options will face conflicting research findings. For example, a popular pedestrian improvement is a bulb-out, an extension of the curb face to reduce crossing width for pedestrians.12 The theoretical basis of the bulb-out is the belief that a pedestrian will seek the shortest path to cross a road.13 Reducing the area of potential pedestrian-vehicle conflicts is a benefit.

Researchers evaluated whether the existence of these bulb-outs increased pedestrian usage of a crosswalk. In one controlled experiment, the researchers looked at a location before and after installation of a bulb-out. In the "after" evaluation, there was a statistically significant change in pedestrian crossings-in the wrong direction.14 Fewer pedestrians crossed after the bulb-out was installed.

Similarly conflicting research can be found regarding in-pavement flashing lights, which are recognized as an option in MUTCD. 15 Theoretically, in-pavement flashing lights will draw a motorist's attention to a marked crosswalk.16 It is expected that a motorist will recognize the marked crosswalk and that the rate of yielding to pedestrians will go up.17 The research, however, has been conflicting. One study found an increase in yielding rates.18 Another study found a decrease in yielding rates.19

Perhaps the area of greatest controversy is the use of a simple marked crosswalk. One study found that marked crosswalks were associated with an increase in accidents.20 A 2002 FHWA study found that some marked crosswalks were associated with an increase in accidents and some were not.21 Even the medical profession weighed in on the issue. In 2002, the Journal of the American Medical Association (JAMA) published a paper that concluded that marked crosswalks were associated with an increase in accidents for older pedestrians.22

The Lack of Clear, Objective Guidance Means that Agencies Face More Ligitation Exposure

Although conflicting research may pose interesting academic questions, it also raises significant practical problems for lawsuits. At the present time, there is no national database of lawsuits against public agencies for road design.23 Tort lawsuits involving traffic control devices are reportedly increasing.24 However, accurately measuring the amount of litigation and the amount involving pedestrian crossings is a challenge.

One reason at-grade crossings have greater potential for litigation is the speed differential between vehicles and pedestrians, resulting in greater accident severity. Another factor may be the greater amount of "political engineering" associated with pedestrian crossings. Public officials frequendy weigh in with requests for pedestrian improvements.

Pedestrian crossings also have a higher litigation exposure because experts have more to choose from. Almost all road design lawsuits involve expert testimony. Most courts will require that an expert back opinions with some published standards or research. Although it is important for an expert to look at all research, even with conflicting results, before rendering any opinion on the best treatments at a particular location, some courtroom experts may select the research to support a particular opinion.

For example, an expert offering testimony about the dangers of a marked crosswalk might rely upon the 1972 Herms study or the 2002 JAMA report. That same expert, seeking to criticize an intersection with no marked crosswalk, would rely upon the 2002 FHWA study.

The wide range of choices means that there is also a potential for inconsistent treatment within the same agency. The existence of internally inconsistent treatments can increase an agency's exposure to litigation.25 Courts frequently will look to an agency's design choices at one location to establish liability at another location. Therefore, the agency should thoroughly document the design choices covering the limited application.

How to Minimize Exposure

Despite conflicting research, the lack of clear guidance and the increased risk of lawsuits, there are some steps an agency can employ to reduce litigation exposure.

Use Best Engineering Judgment. It may be stating the obvious, but engineers designing pedestrian enhancements should use their best judgment. Although much of civil and traffic engineering can be performed using formulas and warrants, it is not so easy to design a pedestrian crossing.

That is not an excuse to abandon the core principle that all traffic control devices depend upon engineering judgment. Judges and juries tend to respect the honest and sincere exercise of engineering judgment, even where reasonable minds could differ.

Document the Exercise of Engineering Judgment and the Deliberate Choice To Use One Design Over Another. MUTCD recommends that installation of a traffic control device be preceded by an engineering study.26 Although there is no requirement that such a study be written, when it comes to selecting from the menu of pedestrian design choices, a written study is a good idea.

A written study will document the fact that engineering judgment was used at a location. It may be decades after a design is complete that a lawsuit is filed. The benefit of documentation is that it will be available to use in a defense, even if the actual engineer is not.

The engineering study should acknowledge the range of choices available to a particular location and offer a justification for picking one design choice over another. For experienced engineers, this may be quite a task. When an experienced engineer marks a single crossing at an intersection, it may be obvious to mark the crosswalk nearest a bus stop. Unless the exercise of that judgment is documented, it will look like an afterthought to suggest that was in the mind of the designer at that time.

Maintain a Relatively Consistent, Non-Politicized Pedestrian Crossing Practice. Agencies can employ a wide variety of crossing treatments, even on roads with similar geometry, speed limits and volumes. Perhaps acceptable in the civil engineering science, the use of internally inconsistent treatments is the basis of second-guessing in lawsuits. Rather than have to explain why one similar location has a different treatment than another, agencies should simply avoid the inconsistent treatment in the first instance.

Agencies should not let crosswalk policies become politicized. Every small town traffic engineer knows what it is like to get a call from a new mayor demanding a crosswalk in front of a constituents home. Unless the mayors request can be supported by the exercise of good engineering judgment and will not expose the agency to an internally inconsistent design, the request should be rejected.

WHAT HAPPENS IF YOU ARE SUED?

When an agency is sued for a pedestrian accident, several themes appear to resonate with judges and juries. People like their freedom and will accept a reasonable amount of responsibility. Judges and juries also seem to place responsibility on drivers to follow the motor vehicle code, and some responsibility on pedestrians for their choices. The classic lawyer's argument seeks to embrace these concepts:

"In this city, our crossings are reasonably safe when drivers obey the law and pedestrians keep a proper lookout.

"In this city, pedestrians get the freedom to choose when, where and how to cross. No one blocks off the road and the pedestrian holds all the cards. Only the pedestrian knows what the traffic conditions are like. Only the pedestrian knows what the lighting is like. Only the pedestrian knows if they are patient enough to wait for a gap. No one from the city is there to make these decisions.

"And with the freedom to choose comes the personal responsibility to choose wisely. A road that may be safely crossed at 11:00 a.m. on a sunny Sunday by a healthy 22year-old may be dangerous at 6:00 p.m. on a rainy Friday night when the pedestrian has a broken leg.

"A pedestrian crossing accident cannot happen unless the driver breaks the law and the pedestrian fails to keep a proper lookout. The crosswalk cannot cause an accident and the crosswalk should not be responsible in this case."

This is the kind of sample argument that should be successfully deployed any time an agency is sued over a pedestrian crossing.

CONCLUSION

For the foreseeable future, the range of pedestrian crossing alternatives may tend to grow, and the guidance for installing these treatments may not improve. Agencies should acknowledge the increased exposure for pedestrian facility design enhancements and those agencies should employ the practical steps set forth in this feature to reduce litigation exposure and enhance the defendability of a lawsuit.

© 2006 Institute of Transportation Engineers Provided by ProQuest LLC. All Rights Reserved.

Source: Institute of Transportation Engineers. ITE Journal