Meeting the Challenges of Transportation Liability and Legal Risk Management (TE-56) Course Outline

Session 1

Initiation of a Lawsuit

More than just a collision and injuries
It is about money.
- Insurance coverage will almost never fully compensate when there are catastrophic injuries
- Discussion of the 1% Rule in the State of California and its impact on litigation
  - Scenario using the 1% rule to identify possible outcomes in a significant or catastrophic collision
  - Rules in California versus other states
    - Comparative Liability, 50% rule, 51% rule, and contributory negligence
    - The effect on litigation strategies by public entities and agencies
Legal Concepts related to Dangerous Condition Claims in California
- Statutory basis for all claims
- Common Law Negligence is not applicable in a DC claim
- Term Standard of Care is not applicable as it would be for a private entity
- Discussion of the elements of a dangerous condition claim
  - Ownership or Control
  - Existence of a Dangerous Condition
  - Foreseeability
  - Notice
  - Causation
  - Damages
- Each will be discussion as it applies to the claim
- Affirmative Defenses
  - Identify the difference between and affirmative defense and the elements of the dangerous condition claim.
  - Design Immunity
  - Reasonableness
  - Comparative Negligence
- There is no employee liability in a dangerous condition claim absent very, very rare circumstances
  - Must be outside the course and scope
    - Description of what is in Course and Scope
    - Metcalf v. County of San Joaquin case discussion
  - Vicarious liability as applied to the public entity in a dangerous condition case

Early Investigations for Collision Cases

Collection of Evidence immediately or quickly thereafter is pertinent to defenses. Case example - shoulder drop off allegations
- Effect of failure to capture key evidence and information
Second Case Example – Guardrail Intrusion into vehicle compartment
- Effect of capturing key evidence and information
- Results in reduced risk and tort liability
What is involved in Early Notifications?
- Local Agencies – individual traffic management/engineers who work with local LE to identify significant (significant injuries/fatal) collisions and do a review.
  - Examples provided
    - Collision notifications
    - Effect of capturing evidence
  - Early investigation of the parties involved
- Creation of Precautionary unit/Team
  - Engineering staff (those who monitor the routes and those who are in operations)
  - Attorney staff – familiar with DC issues and what is necessary to help in the lawsuit.
- Identification and Location of Vehicles – Critical
  - Need to capture with AR
    - Vehicle
    - Black box data
    - Roadway/physical environment issues
  - Track down ownership and potentially insurance information
Identification of PRAs related to a specific collision
- Have attorney oversight of production
- Ensure coordination with litigation so that there are no “spoliation” allegations

SESSION 2

Discovery Issues

Types of Discovery in Dangerous Condition Cases
- Form Interrogatories
  - How attorneys respond and what they need from staff and consultants
  - Engineer’s viewpoint
- Special Interrogatories
- Requests for Production of Documents
- Requests for Admissions
- Demand for Vehicle Inspection
- Site Inspections (demanded by other parties)
- Destructive Testing
  - ECM/Black Box
  - Seatbelts
  - Tires
  - Concrete (Case example)
- Depositions
  - First Responders
  - Percipients
  - Plaintiffs/related
  - Agency employees
  - Experts
- Why the order above?
- What we need in written discovery to be effective in depositions
- When we need assistance from technical specialists or subject matter experts
  - In-house
  - retained
How to approach discovery
- Attorney’s View
  - Critical time limits
  - Verifications
  - Effect of incorrect, incomplete or evasive responses
  - Motion to Compel process
  - Sets the stage for dispositive motion practice
- What we need from staff, consultants and retained experts
  - Assistance with technical questions
  - What information is needed
  - Need time to meet with you and discuss
  - Recognize that what you believe is relevant and what the court allows in discovery
    - Using SR-133 litigation (racing drivers) as an example
- Staff and Consultant View
  - Time consuming with regular duties
  - Not wanting to be involved
    - As agency employees always involved
    - Knowing how to set up work to best help in future litigation (will be discussed further in more detail)
      - How to respond to discovery
      - How to be effective in depositions
Liability Discovery Conducted by the Defending Agency/Entity
- Need to address comparative negligence of the parties
- Proper Discovery to do so
  - Familiarity with a location
  - Vehicle information
    - Maintenance records
    - Care
  - Activities the day of the collision and the days prior
  - The details of the TCR, the claim and the complaint must be specifically addressed in contention interrogatories and RPDs
Damages
- Physical impairments/limitations
- Pre and Post Collision comparisons
- Activities/Sports/Hobbies
- Familial relationships (Wrongful death vs. injuries)
Sub-rosa – what role, if any, does it have in the liability/damages realm
- Case use of Sub-rosa – a case example
- Effectiveness in resolution on certain cases
  - Helps experts identify issues with claims of damages
  - Can be used for both liability and damages claims

SESSION 3

Dispositive Motions

Demurrer/Motions to Strike
- Standard
- When to bring and when to forego
- Effect of a Demurrer Ruling
MSJ
- Standards
- Procedural requirements
- Declarations/Affidavits
- Evidence and how to verify it
- Opposition and how to anticipate issues to be raised
Motions to Bi-furcate
- Standards
- Potential effects
  - HAS case example (shoulder drop-off case)
  - How to avoid unanticipated issues
Trial on Affirmative Defenses (CCP 597)
- Standards
- Procedures
- Technical and SME expertise almost ALWAYS needed
  - Testimony by staff, consultants and retained experts
  - Trial before the trial

MSJ Defenses

Cannot meet the elements
- No Dangerous Condition
- No Notice
- No proximate cause
Where do the planners, designers, operators and maintainers come into play
- Sworn Testimony
- Underlying information
- Conclusions to be drawn
Affirmative Defenses
- Design Immunity
  - Elements (Each element discussed separately and with specific examples of what meets and what does not meet that particular element)
    - Design caused or contributes to the collision/injuries
    - Plan approved in advance of construction by appropriate officials or built in conformity with the plans as approved and constructed
    - Substantial evidence supporting the reasonableness of the design
Reasonableness
- The elements
  - No responsibility if the act or omission of the employee was reasonable (Metcalf v. County of San Joaquin, 2008)
  - Jury must weigh the likelihood and seriousness of the potential injury against the practicality and cost of either
  - Taking affirmative action that would NOT have created the risk of injury; or
  - Protecting against the risk of injury
Case Examples
- Median Barrier Case (HAS/Rock)
  - reasonableness
- Signage case
  - No reasonableness

SESSION 4

Testifying

Deposition Testimony
- How to prepare with counsel
- What to review
- Procedure at depositions
Trial Testimony
- Responding to the jury
- Objections
Interactive Pointers section of the training
- Walking through different issues and how to address them
- We will provide the vignettes for the examples

Trends in Transportation Engineering that Affect Tort Liability and Risk Management

Safe Systems and Similar Policy Advancements
- Elements of the Safe Systems and Policy
- Origins
- History of Safety Programs through the FHWA
  - 1966 Creation of Department of Transportation
  - Issues addressed
  - Highway Safety Act of 1966
- Other Past Programs – CA and Federal
  - CURE
  - Median Barrier/Width Warrants
  - ROR
  - Bike & Pedestrian Monitoring
  - Wrong Way Collision Monitoring
  - HSM
- Challenges in the United States and California
  - Different Laws
  - Different Standards
  - How to work effectively with Staff and lawyers to implement policy decisions without increased risk or liability
- How to work with Attorneys
  - What is shared responsibility for an engineer/transportation official?
  - What ethical imperatives?
  - Recognizing Human Error vs. Legal responsibility for human error
  - Partnership and Collaboration with attorneys
    - SMEs
    - Active Engagement with Legal Staff
    - Attorneys understanding SS
  - Attorneys Training Staff
    - Before implementation of SS
    - After
Use of Liability Neutral Language
- Discussion of why it is so important
- Examples from cases
- Consistency in documents
Climate Resiliency and Tort Liability
- FHWA Order 5520 (December 2014)
- DOT Draft Strategic Plan for FY 2022-2026
- Types of Issues with Climate Resilience and Tort Liability
  - Unexpected conditions and “warning signs”
  - Reasonbleness elements will be a moving target
  - Nature of “extreme” will be redefined and change notice requirements
  - Case example
    - 2023 2024 weather events
    - Case issues (wet weather, catastrophic injury collision)
Litigation Trends Affecting Engineering Trends
- Waiving Economics and general damages
- Trying to Avoid Engineering Cases
  - Maintenance
- Reptile and Beyond
- Huge Asks
- Post-Covid Juries
  - What we are seeing in verdicts
  - What are jurors expressing
  - What the studies show
  - How this affects transportation cases