Four principles involved in a tort action for negligent design, construction, and maintenance are discussed: (1) a primary defense is the state's immunity from suit and liability; (2) in those states where the action is based on a general waiver statute the case is decided in the same manner as any negligence or personal injury action, with certain exceptions; (3) in many jurisdictions the action is purely statutory with a distinctive body of case law and procedures; (4) the question presented where tort claims are in force usually is whether negligence in the plan or design, construction, or maintenance of the highway is "discretionary" and therefore immune. The various approaches and principles pertinent to the defense of sovereign immunity, the statutes waiving tort immunity of the department, the governmental-proprietary test of immunity, and immunity based on discretionary function or activity are detailed, and relevant cases are quoted. Tort liability has received varying treatment by the courts. In a few jurisdictions, the state cannot be sued without its consent; in others suit may be instituted only in a prescribed manner; and in still others, suit may be authorized only where it falls within the ambit of some special highway statute creating liability for breach of duty. Although the laws sometimes permit tort suites of this nature based on negligence principles as if the state were a private person or corporation, the prevailing trend is to authorize suit only as set forth by the legislature in a tort claims act. The cases are fairly uniform in holding that the design of a highway is discretionary because it involves high-level planning activity with the evaluation of policies and factors. Exceptions to design immunity which have been noted by the courts are listed. Negligent construction is not likely to be immunized by reason of the discretionary function exemption. However, it might be immunized where the plan or design specifies in elaborate detail how a feature is to be completed. Negligent maintenance is least likely to be immune from liability.

Media Info

  • Features: Appendices;
  • Pagination: 49 p.
  • Serial:
  • Publication flags:

    Open Access (libre)

Subject/Index Terms

Filing Info

  • Accession Number: 00128804
  • Record Type: Publication
  • Contract Numbers: 20-6
  • Files: TRIS, TRB
  • Created Date: Apr 21 1976 12:00AM