Guidelines for The Implementation of Reduced Lighting on Roadways

Chapter 3. Legal Implications of Adaptive Lighting

The parties most concerned with the legal implications of an adaptive lighting system are the owners and designers of the system. The owner is likely the government agency responsible for drafting the regulations defining the system and for implementing it. The designers include the engineers and design professionals working for the owner or agency. The legal concerns range from the agency justification for implementing such a system to the legal liability of the owners and designers in the event of a personal injury lawsuit attributed to the adaptive lighting system.

Justification of Agency Decision

The implementation of an adaptive lighting system likely require the promulgation or revision of highway safety regulations and the exercise of agency decision making procedures. Such agency action is typically regulated by a statute outlining administrative procedures. (See, for example, 5 U.S.C. 553, informal rulemaking procedures of the Federal Administrative Procedures Act, and Wash. Rev. Code § 34.05.510, judicial review of agency action under State of Washington Administrative Procedure Act.)^(13,14)

The action of an agency in promulgating or revising highway safety standards may be challenged if it can be shown to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 [1983], reviewing order of National Highway Traffic Safety Administration rescinding crash protection requirements of the Federal motor vehicle safety standard.)⁽¹⁵⁾ In the Motor Vehicle Mfrs. case, the decision of the agency was challenged because it failed to present an adequate basis and explanation for rescinding certain requirements relating to the use of seatbelts and airbags in motor vehicle passive restraint systems under its regulations.⁽¹⁵⁾ The U.S. Supreme Court stated the following:

Most important is that the agency "cogently explain[s] why it has exercised its discretion in a given manner."⁽¹⁵⁾

For the agency implementing an adaptive lighting system, demonstrating the basis for the application of its expert discretion is crucial if the regulations are to survive. Supporting the decision with empirical data strengthens the case for needing the system, as does adherence to industry-accepted guidelines during the design of the system. A narrative explanation of the reasons the agency decided to implement the system—written or endorsed by the engineers with the particular expertise required—leaves little doubt regarding the basis for the new system. A well-supported agency decision will receive substantial deference from a reviewing court.

Tort Liability of Agency or Engineer

An agency implementing an adaptive lighting system, or the engineer designing such a system, may face tort liability for personal injury resulting from such a system on the theory of negligent design.

Negligence is "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm" (Restatement [Second] of Torts, § 282).⁽¹⁶⁾ Engineers and other design professionals must act according to the standard of care set by their particular profession:

In designing an adaptive lighting system, an agency or engineer does not breach this duty of care if the agency or engineer performs according to industry-accepted guidelines (e.g., Federal highway standards). That is, if the engineer does what every other engineer would do in the same situation, a plaintiff will be hard pressed to argue that the engineer was negligent.

SOVEREIGN IMMUNITY

Sovereign immunity is a legal doctrine by which the government cannot commit a legal wrong and is immune from civil suit without its consent. The government has waived its immunity in most States, although discretionary policy decisions of employees of Federal and State agencies are still protected from suit. This protection does not extend to consulting engineers or other design professionals working on behalf of the agency.

The Federal government has waived its sovereign immunity to a limited extent under the Federal Tort Claims Act (FTCA, 28 U.S.C. 1346[b], 2671–2680).⁽¹⁸⁾ Under the FTCA, the United States is liable for the following:

The United States may be held liable under the FTCA for torts of employees of the executive, legislative, and judicial branches, but not for torts of government contractors (28 U.S.C. 2671).⁽¹⁹⁾

A significant exception to the FTCA immunizes the United States government from claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function" (28 U.S.C. 2680[a]), even if the Federal employee acted negligently in the performance or nonperformance of his discretionary duty.⁽²⁰⁾ The U.S. Supreme Court has held that the discretion protected by the exception:

Elsewhere, the Supreme Court has stated that "[j]udicial intervention in [agency] decisionmaking through private tort suits would require the courts to 'second‑guess' the political, social, and economic judgments of an agency exercising its regulatory function" (United States v. Varig Airlines, 467 U.S. 797, 820 [1984]).⁽²²⁾ Hence, the Court protected employees of the Federal Aviation Administration (FAA) from suit brought by victims of airplane accidents, alleging that the FAA employees had acted negligently in certifying certain airplanes for operation.⁽²²⁾

Sovereign immunity also applies at the State level. Similar to the Federal government, Alaska has barred tort claims against a State agency or its employees relating to the discretionary functions of those employees (Alaska Stat. § 09.50.250 [1]).⁽²³⁾ Case law distinguishes between "planning level" and "operational level" decisions, attaching immunity to the former but not the latter (Wainscott v. State, 642 P.2d 1355, 1356 [Alaska 1982]).⁽²⁴⁾ A planning decision involves policy formulation, while an operational decision involves policy implementation (Alaska Dept. of Trans. and Pub. Facilities v. Sanders, 944 P.2d 453, 456 [1997]).⁽²⁵⁾ Thus, the decision of an agency to follow a certain policy is protected from suit, but the actual implementation of the policy is not protected. (See Moloso v. State, 644 P.2d 205, 218 [Alaska 1982], stating that "[o]nce the state decided to and did undertake the task of re–routing the highway for better road maintenance, travel, and safety, it was obligated to use due care in its design and construction.")⁽²⁶⁾

Texas has a similar sovereign immunity statute to that of Alaska, in which the State does not waive immunity for discretionary acts. (See Tex. Civ. Prac. & Rem. Code Ann. § 101.056 and 101.060.) ⁽²⁷⁾ This protection has been specifically applied to highway design and safety features. (See State v. Miguel, 2 S.W.3d 249, 251 [Texas 1999], stating that "[d]ecisions about highway design and about what type of safety features to install are discretionary policy decisions" for which the government cannot be held liable.)⁽²⁸⁾ Also as in Alaska, immunity does not extend to the negligent implementation of a policy decision. (See Tex. Civ. Prac. & Rem. Code Ann. § 101.021.)⁽²⁹⁾

The State of Washington also has a discretionary function exemption to sovereign immunity, but "its applicability is limited to high-level discretionary acts exercised at a truly executive level" (McCluskey v. Handorff-Sherman, 125 Wash.2d 1, 12 [1994]; see also Wash. Rev. Code § 4.92.090).^(30,31) Still, decisions involving traffic or highway planning are entitled to immunity. (See Jenson v. Scribner, 57 Wash. App. 474 [2012], holding that collection of accident data to plan and prioritize highway projects at a 2‑ year interval is part of the planning process and is, therefore, protected by sovereign immunity.) ⁽³²⁾ However, this protection does not extend to negligent design and construction. (See State v. Stewart, 92 Wash.2d 285 [1979], holding that, while the decision to construct a bridge was a policy-level decision, the State was negligent in its planning and design of the bridge because of the lack of lighting; also see Riley v. Burlington Northern, Inc., 27 Wash. App. 11, 17 [1980], holding that the angle of how a road approached a railroad track was a design issue, not a policy determination, and the State could not avail itself of sovereign immunity when sued for an accident related to the dangerous angle.)^(33,34)

Based on the foregoing, the decision of an agency to follow an adaptive lighting regime would likely be protected by Federal or State sovereign immunity. However, the agency would remain open to suit if the implementation or installation of an adaptive lighting system was negligent in some way. Moreover, neither the Federal exemption nor the State exemptions extend the immunity protection to engineers and design professionals who are not direct government employees but are only agents of the government. Accordingly, the engineers or design professionals creating an adaptive lighting system would not be protected from suit by sovereign immunity and would have to rely on a typical negligence defense concerning the standard of care.