1 Larry W. Thomas, Liability of State Departments of Transportation for Design Errors 1 (2017)

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                                                                    Responsible Senior Program Officer: Gwen Chisholm Smith

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            This  report was  prepared   under   NCHRP Project 20-06, Legal Problems Arising Out
            of Highway Programs, for which the Transportation Research Board is the agency
            coordinating   the  research. The   report was  prepared   under   Topic 22-02   by Larry  W.
            Thomas, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects,
            was  the  principal investigator  and  content  editor.


State highway departments and transportation agencies
have a continuing need to keep abreast of operating
practices and legal elements of specific problems in
highway law. The NCHRP  Legal Research Digest series
is intended to keep departments up-to-date on laws that
will affect their operations.


Transportation departments have demonstrated an interest
in protecting their agencies from liability for design errors
and omissions in infrastructure projects and defective
safety appliances and products. This study demonstrates
that litigation has defined the parameters of a transporta-
tion department's liability for design errors or omissions.
State tort- and sovereign-immunity statutes may shield an
agency from liability. If the state has waived its immunity
for certain claims, however, the transportation department
may still have immunity when it has exercised discretion
in the planning or design phase of a project. When a gov-
ernment contractor is acting as an agent of the transporta-
tion agency, the contractor may also have a claim. If a

contractor is at fault, the agency may be able to recoup any
related losses incurred from the contractor.

   Transportation departments generally require govern-
ment contractors to maintain insurance to cover costs and
damages resulting from claims due to defective planning,
design, and construction The digest covers liability insurance
for design errors and omissions. It also examines public con-
struction law, professional liability, and product warranties.

   A survey was sent to all 50 U.S. state departments of
transportation (DOT) and the District of Columbia. The
survey requested the state to provide information on its
experience with and policies and practices on claims for
design errors and omissions. Over one-half of the state
DOTs  responded to the survey, and many offered exam-
ples of related standard contract and insurance provisions
and forms. A significant number of those who responded
to the survey indicated that within the past 5 years, claims
had been brought against them or their contractors for
allegedly defective planning or design. Only a few had
been held liable, however. The results of this digest should
be beneficial to transportation managers, attorneys, engi-
neers, design contractors, and insurance personnel.

      The National Academies of

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