Tort liability of state highway departments for injuries caused by negligence in the design, construction, and maintenance of state highways is discussed in this paper. The defense of sovereign immunity to tort suits and the statutes waiving tort immunity of the state highway department are discussed, and the state's duty to the travelling public is examined. Highway defect statutes (the breach of statutory duty) are reviewed, as well as the governmental proprietary test of immunity. The immunity from liability based on discretionary function or activity is also considered. It is noted that the matter of tort liability of state highway departments for design, construction, and maintenance negligence has received varying treatment by the courts. The prevailing trend is for jurisdictions to authorize suit only as set forth by the legislature in a tort claims act. These acts typically include an exemption from liability for negligence in the performance, or failure to perform, discretionary activities. Where highway operations are at issue, the question becomes whether the activity or decision involved falls within the exemption from liability for discretionary functions or duties. 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 noted by the courts are listed. Negligent construction is not likely to be immunized by reason of the discretionary function exemption, particularly where the construction deviates from the approved plan or there is negligence in implementing the design. Negligent maintenance is least likely to be immune from liability.

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  • Supplemental Notes:
    • A supplement to this paper by L.W. Thomas was published in Addendum 2, December 1980, pp 1834-S1 through 1834-S14. Distribution, posting, or copying of this PDF is strictly prohibited without written permission of the Transportation Research Board of the National Academy of Sciences. Unless otherwise indicated, all materials in this PDF are copyrighted by the National Academy of Sciences. Copyright © National Academy of Sciences. All rights reserved
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  • Authors:
    • Thomas, L W
  • Publication Date: 1978


  • English

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  • Accession Number: 00178358
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Aug 31 1998 12:00AM