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Traffic redesign: the new litigation opportunity?



There's an interesting article in the December issue of Wired how a number of European communities are reducing traffic accidents and improving traffic flow by counterintuitively reducing what are commonly thought of as safety features -- traffic signs, lane-marking, traffic signals, clearly demarcated sidewalks. The article is unclear whether the reduction in automobile problems is actually the result of design improvements, or simply a function of would-be drivers substituting their traffic problems to more conventional roads to avoid the hassle of an unmarked roundabout. (For example, I usually drive three blocks out of my way to avoid Dupont Circle.) There would also be substitution away from driving in favor of pedestrian activity, though this would be a benefit in the long run. (Tom McNichol, "Roads Gone Wild", Wired, Dec. 2004) (via Marginal Revolution).

So perhaps this is real innovation and improvement, and perhaps not. But there's one factor critical to American implementation that is not mentioned in the article at all: governments could not hope to inexpensively implement such programs in many places without a change in existing law. Right now, a number of jurisdictions, most notably California, permit lawsuits against state highway designers for accidents "caused" by failures in road design. (E.g., Overlawyered, Sep. 30, Mar. 16). In Michigan, in Fiscal Year 1996-97, the Dept. of Transportation paid out over $11 million in judgments and settlements in design lawsuits, and that doesn't count the millions of dollars of employee time wasted in such lawsuits. In such states, any city adopting a non-traditional traffic architecture risks having their decision second-guessed by a jury. While it may be that "making driving seem more dangerous could make it safer," it's certainly the case that "making driving seem more dangerous" makes it seem more dangerous to juries. And if enough places adopt "psychological traffic calming," plaintiffs' lawyers won't hesitate to sue road designers who've adopted or rejected it for failing to do the opposite.

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.