 Ask most any highway agency administrator. Tort liability is a major concern. In the past 10 years, it has touched many agencies, both state and local. All know, litigation may be an accident waiting to happen. We design roads and we build smooth highways and streets to accepted standards. Wise management will use the available resources to buy the most roadway and maintenance possible to meet the current and expected traffic demand. Yet more is needed, and that is a consistent highway safety attitude. In most instances, traffic moves, pedestrians are accommodated, and the movement of our population continues in a smooth fashion. Tragically, there are exceptions. An accident, any accident, is caused by a chain of events. Always involved are the driver, the vehicle, and the roadway condition links. When all of the links are combined, an accident occurs with loss of time, of revenue, and possibly the loss of life. Accidents and loss frequently result in a search for liability, for compensation. Whether we like it or not, more and more of our conflicts and problems are being settled in court with the wards spiraling higher. State and many local highway authorities once thought to be immune to such actions and now find themselves in the midst of a problem that is monumental. Tort liability. 10 or 15 years ago, the term probably never entered our conversation. Not anymore. The dramatic rise in court actions covering tort liability cases make the term more than a simple phrase. It's a real problem, one that won't go away. This fiscal year will probably spend about $20 million in settlements and judgments for tort liability, and that does not include all of the hidden costs, such as lawyer salaries, engineer salaries, hiring expert witnesses, and those kinds of things. Those added or hidden costs might add another $8 to $10 million to the total bill. Our other impacts are less obvious. Certainly our staff is getting to the point where they seem almost worn out from having to handle this tremendous explosion of litigation that we have encountered, and I would say those are the principal things. A year ago, I think our outlay for settlements and judgments was about $14 or $15 million. So that gives you an idea of the magnitude of the increase, and it seems to be almost increasing exponentially in the sense that the increases get larger and larger each time. That is inflation, but part of it is sheer numbers of cases. That's not an isolated response, but a symptom of just how big the concern over tort liability really is. Fact. From 1971 to 1985, the number of lawsuits filed against the State of California Department of Transportation more than tripled. Fact. A recent study conducted by the American Association of State Highway Transportation Officials reported that claims against 40 states, not 50, but 40 states totaled nearly $7 billion in potential liability. That amount had more than doubled in just a few years, and that's state liabilities, not cities, not counties, not local jurisdictions. Their totals add up to millions more. Where does all this money come from? Well, the tort liability problem has affected our agency most directly by costing us $4 to $5 million over the last 10 years. This is money that should be used to repair the highways, rather than pay defense costs and damages to plaintiffs. I think that the tragedy is that all these accidents are occurring, serious injuries are occurring to citizens, and they seek redress of their grievances somewhere. Unfortunately, people seem to think that government agencies all own a printing press and that the taxes that support us are unlimited. So they always join the highway agency in a suit involving an automobile accident, whether the negligence of the highway agency is great or small, hoping to get a bundle of money available for collection. There was a long period in our country's history when government agencies, including municipal departments, were considered immune from litigation of tort claims. Those days are over. The idea of sovereign immunity, a term that sounds like it comes out of the Middle Ages, which it does, no longer works as a protection for state and local governments, either through voluntary surrender, legislation, or court action, the umbrella of sovereign immunity has all but disappeared in most states. Courts rule consistently that governments must assume responsibility, read liability, for any provable negligence that results in harm to citizens. Two things have happened. As we mentioned, the number of court cases has dramatically increased, and with that increase has come a corresponding increase in the amounts awarded by courts to the plaintiffs. More cases, more money. Personal injury attorneys and their clients have realized the financial opportunities that lie in litigation. All of this complicated by another term we've had to come to grips with, joint and several liability. The fact is that liability laws vary greatly from state to state. Make sure you're current on what the law says and how it's being interpreted in your state. Well, joint and several liability has been around for many, many years. In its simplest form, it means that where you have two or more persons or organizations who are responsible for an injury, then any one of those persons can be made to pay all of the verdict or judgment. Now that happened regardless of the percentage of fault that might be allocated to any one party. I can best illustrate this by an example. Injured party sues a drunk driver and the public agency. Assume that the jury decides the drunk driver is 90% at fault, but that the public agency is 10% at fault. Under joint and several liability, the public agency can be compelled to pay 100% of the damages, even though only 10% of the fault was allocated to that public agency. Millions can be awarded in tort liability cases. The jury taking a position that favors the little guy. After all, that's the American way, isn't it? Root for the underdog? Or is it the American way? Since when do we view the government as the deep pocket sugar daddy that can be hit up for a handout whenever we need it? Our system works on equality and justice. Two concepts we can't ever afford to forget. In the honest interest of justice, we have to recognize that there are circumstances of proximate cause in which the state or municipality in question really is at some fault. Okay, Tony, let's go on the tour. Want to go the whole loop? Absolutely. We want to see the full range of potential problems. You got it. Everybody got their seatbelt on? Here we go. There are so many road conditions that can have a direct effect on driving conditions, traffic movement, and accidents. It's important to note and remember that all public roads are expected to be constructed and maintained at professionally accepted standards that will provide for safe vehicle operation. Ignorance of the standards or lack of agency funds do not lessen agency liability. Low shoulders. If a vehicle veers off the road here, it could be sent out of control. Whose fault is that out of control vehicle? The drivers who swerved to avoid something in the road? The designers who laid out the system 30 years ago? The road construction crew that built and has repaired the street according to directions? The city or county for allowing the road to exist? Tough questions. Foliage, trees and shrubs that block clear vision of signs must also be carefully monitored and controlled. Signing has a great potential for problems. Too many signs, unclear signs, hidden signs, damaged signs all create confusion. Confused drivers are not at their defensive driving best and that could be the beginning of a serious problem. Construction and maintenance work. Although we all agree that it's mandatory can really tie things up and make for conditions that can present serious problems for drivers. Weather is a major factor, not that we can do anything about the weather. Being prepared for snow and ice if that's part of our annual weather pattern or heavy rains or blowing dust or fog can make a big difference in how people move through our area. The list goes on and on. Every time we take another turn, cross another intersection, encounter another change in terrain or construction. Construction and worker hazards can be very real contributors to safety problems. Like the alignment of a curve, sometimes it's little more than an outdated road design or layout that needs to be corrected. Barriers and median strips, meant to promote safe and efficient passage, can also be a factor in accidents. All roadside hardware must be properly installed and maintained. If it isn't, it can be a hazard and a liability. Culverts, bridges, overpasses fall in the same category, meant to help but potential problems. Utility poles figure prominently in a great number of accidents. Pavement defects and potholes are another problem that have got to be high on the list. I'm sure you get the idea. How does it is to believe any road in any condition can be a factor in an accident? The question we must face then is really one of management, risk management. How can we effectively manage the risks involved in the tort liability problem? The answer is really two-fold. The first part should be both obvious and worth reviewing again and again. Think safety. Every person involved in the highway program must have safety as their number one priority. Our primary goal is to prevent accidents, to remove a link in that accident chain of events that we mentioned. Safety first is not just a motto. It must become SOP, Standard Operating Procedure. Correcting problem areas, continuing with highway safety training programs, systematically improving unsafe locations before they become accidents. What's the old saying? An ounce of prevention is worth a pound of cure. In this case, an ounce of prevention can avoid a ton of litigation. The second part of the answer is also very logical. Be prepared. Act positively by implementing a highway safety improvement program that systematically identifies the problems, develops solutions, and provides funds to implement those solutions. It's unrealistic to think that your state, county, municipality will not be affected in some way by the tort liability issue. Claims are inevitable. Be ready to present a solid defense. That way your agency has a much better chance of reducing the scope of that liability. Well, Oakland County Road Commission pioneered a management method called risk and liability management. It consists of two phases. The most important is accident reduction. We look at all of the intersections in our county in road segments to determine which has the largest number of personal injury accidents. We try to identify those segments and intersections that are causing the personal injury accidents. Then we establish we prioritize those lists and we establish interdisciplinary teams in the road commission and utilize local officials such as police officials and the data from the Traffic Improvement Association of Oakland County to discover what we think causes the accidents and then to take countermeasures to correct the situation and reduce accidents at the site. The most important thing that highway officials can do to reduce their risk of tort liability is to develop a strong and dedicated commitment to highway safety. This commitment must start at the very top and permeate the entire organization. The commitment must include a strong program for effective design, construction, maintenance and operation of all of the highway facilities with highway safety as a top priority. That commitment must also include a systematic process for identifying and implementing procedures to correct highway safety problems. Getting an effective risk management program underway is not an easy task nor one that should be taken lightly. This requires concentrated action and support at the top. That way people respect the importance and urgency of protecting the agency from crushing tort liability. Is everyone here? We have a full and important agenda and I'd like to get started. By starting at the top of the agency or department the chances of risk management being a priority are greatly increased and organized approach will bear the most fruit. Depending on the size and the financial and human resources available to your agency and organizational alignment to handle risk management can look something like this. Notice that this group is incorporating legal representation, enforcement personnel, traffic and maintenance staffers, educational personnel, design engineers and construction people. All coordinated through the supervisor's office. The goal of this group is communication and coordination, getting people to talk, plan and work together. Engineers and enforcement personnel, legal and maintenance professionals. At its simplest a risk management team working on tort liability should address the legal and the engineering aspects of highway and traffic safety. Once again coordinated through a central office to ensure goal setting and measurement. Let's never forget that our primary purpose is always safety, the saving of lives. Effective risk management is one very good way of striving for that goal. An active task force dealing with tort liability from a risk management perspective is a strong safety tool. That task force can begin immediately on inception by tracking and assessing the areas of potential danger just as we described in our driving tour. Look at every area of your jurisdiction's responsibility. First start with planning, back to the basics. Go over your planning procedures and the follow through to make sure that things get done. Next move to design functions. How are they accomplished? Who has management responsibility? There are manuals and directives for design and maintenance. Make sure they are reviewed and followed. When in a construction phase make sure your people are well versed not only in the contract specifications but also on the safety implications of the task. Periodic inspections are mandatory. Make sure they're being done. Operating and maintenance staffs must be included. Not only in the supervision and assessment but in the communication of how their work fits into the larger program of safety and risk management. People play better on the team when they understand the goals and the motivation. With a task force or a permanent committee in place begin an accurate and detailed program of record keeping. This exercise will make the daily planning and operation of your agency more efficient in providing the safest practical highway transportation system. In the event you do end up down the hall in court, you've got a head start on the research and homework that your legal counsel will need to do in order to defend your agency or department. In the event of an accident make sure the entire situation is investigated. That evidence is gathered and saved. It may take two years for a claim to be processed. So have and keep all your information. Every accident is a potential claim. Planning, budgeting and accurate accounting for your department's functions will point out areas of major liability and help you manage risk. The state of Pennsylvania has taken leadership I think in this area in my mind. They conducted a strategic planning process several years ago out of which came a decision to really focus on the issue of tort liability within the highway safety framework in the state. And they are now organized with tort liability as a central concern in their highway safety program. They have established an office with a tort coordinator. The lawyer is obviously going to be a critical member of that team and probably would quarterback the efforts. Certainly another critical player would be an investigator or investigative personnel. People who will go out and relentlessly gather facts to prepare you for the trial. In our highway design and maintenance construction cases we want the engineering side well represented on this team to be able to give testimony to those jurors to prepare appropriate courtroom exhibits to illustrate matters to the jury. We do have two attorneys, outside attorneys that handle all our liability cases. We find that that's a very effective way of managing your court cases. Secondly we appoint a member of our staff to serve as what we call a trial sitter so that the Oakland County Road Commission is represented at the defendants table and it's not some nameless, faceless government agency that's in effect on trial. That trial watcher assists the attorney in advising him as to our practices at the road commissioners. We know more about our operation than the attorney does and that work between our representative and the attorney has been very helpful in the trial of our cases. Training. Don't underestimate the value of training your people on the program you adopt. All personnel associated with the operation of highways must be properly informed and advised regarding the proper measures to use in all of the instances in which they are required. Training is available through the Federal Highway Administration to contract the agencies, professional institutions and others. Highway officials should dedicate themselves to providing the best possible training for all of their employees. Risk management, risk minimizing, is best accomplished when your entire staff from office personnel to maintenance staff is trained and aware. Yes, there is a consciousness of risk management in the states, definitely so. And among the highway safety offices I think in an increasing way there is a lot of education that needs to go on about that both within the disciplines themselves and I think in the American public. But right now there are many projects underway to try and make sure that people are trained correctly, make sure that the problem identification information is used in the proper way. I think with more attention being paid to tour liability there is more attention being paid to safety. An agency with a program of dedicated commitment to highway safety with highway safety as the highest priority element in all of its activities is an agency that has an effective tort liability risk management program. Does such a program work? Yes. Does risk management work I think without any doubt in my mind that yes it does? We know, for example, that the number of fatalities in this county have dropped significantly in the last five to seven years. While we can't prove that we have saved a specific life or stopped a specific accident from happening we know from our analysis of where we have gone in and taken safety counter measures that accidents have dropped significantly and that the number of personal injuries has reduced significantly. So we know that risk management does work. This is a never-ending process. Risk management is not something you do and then you put aside and forget for a few weeks or a month or a year. You must apply yourself to it on a continuous basis if you're to have any success at all. Tort liability won't just go away. Expect to be sued when there's negligence. Trying to ignore or hoping that it won't happen in your jurisdiction, those aren't realistic approaches to handling a growing, a giant problem. Being prepared, actively pursuing a traffic safety and information program, they're not only good ideas in general, they're mandatory in this specific area of concern. An informed, mobilized, organized agency can effectively deal with what otherwise might be a crippling problem. What does the road to effective risk management have in store for you? We hope many miles, many years of smooth, efficient, safe travel. By planning and acting now to correct potential problem areas, both physical and operational, and to set your organization on a clear, active highway safety program. That wish may well become a reality.