Liability and Street Reclaiming

David Engwicht

The major objection I get to street reclaiming and the use of intrigue and uncertainty to tame traffic is liability. Yet exactly the same issue was raised when I first promoted traditional traffic calming. After all, traffic engineering had been based on removing anything that hindered the quick passage of vehicles, not putting obstacles in their way. The key to resolving the liability issue back then was for engineers to demonstrate to the courts that these changes would make streets safer rather than more dangerous. Even today, many cities shy away from traffic calming for fear of being sued. Yet the facts do not back the perception.

In an article Legal Status of Traffic Calming, Reid Ewing reviews data from nearly 50 cities with traffic calming programs in the USA and found only two successful lawsuits against traffic calming programs, and one of these was overturned on appeal. (Transportation Quarterly: Vol. 57, No.2, Spring 2003 (11-23)). Reid Ewing explains why there have been so few successful cases:

In both case and statutory law, the distinction is made between discretionary functions which are generally immune from tort claims and ministerial functions which are not. Discretionary functions involve a choice among valid alternatives. Ministerial functions involve operational decisions that leave minimal leeway for personal judgment.

The decision to spend public funds on traffic calming, or to install one set of measures versus another, or to design measures for one speed versus another, is discretionary. The duty to warn motorists of traffic calming measures that require slowing down, or to maintain measures in a safe condition, or to construct measures per design specifications, is ministerial…

Under sovereign immunity, courts will not second-guess discretionary decisions of public officials if there is any reasonable basis for them.

This suggests that the 'intrigue and uncertainty' approach to slowing traffic would be even less susceptible to litigation than traffic calming has been. The decision to use intrigue and uncertainty rather than speed humps or stop signs is a discretionary decision. Please note that this does not mean that the city can remove signs warning of speed humps and not the speed hump itself. This kind of uncertainty is 'bad uncertainty' and opens the city up to litigation.

The other major area of litigation is suing for damages on traffic calming devices that have not been properly maintained or not properly signed. However, the intrigue and uncertainty approach does not use devices such as speed humps that can potentially damage a vehicle. There is therefore no need for signs and the potential for damage through not properly maintaining infrastructure is greatly reduced.

The only potential area of litigation that may result from the approach outlined above is if someone runs off the road and collides with a street reclaiming device such as a sculpture or banner pole. As outlined in the Intrigue & Uncertainty ebooklet, the use of the Universal Anchoring Device (UAD) should overcome this potential problem. The UAD allows the city to nominate where devices are placed and maximum dimensions of those devices. It may even be possible for the UAD to be designed so that it sheers off if struck with sufficient force.

In the USA there is no design manual with set standards for traffic calming. Many practitioners fear that having no design guidelines will open them up to liability. Reid Ewing asks, 'In the absence of standards, what is to immunize traffic calming programs against legal challenges?' His answer is 'a rational planning and implementation process' because being able to demonstrate a rational approach is important in tort liability and substantive due process cases.

It is therefore important for cities to adopt a rational and orderly planning process for the introduction of ambiguity, intrigue and uncertainty as a means of reducing traffic speeds and building the community and economic life of the city. In the Intrigue & Uncertainty ebooklet I argued that maximum safety is achieved when the environment sends a clear message about the amount of unpredictability that is likely to be encountered. A rational planning process must therefore involve a partnership with the community: a building of a vibrant street life at the same time as traffic control devices are reduced and other design elements are introduced that mark the street as an outdoor living room rather than a corridor. This means there must be a strong social program element to this strategy, not only to get residents to relate to their street in a different way, but to relate to their car in a different way.

A rational and orderly planning process will probably start with residential streets, school streets and neighborhood activity nodes such as local shopping centers, particularly those on arterials. This is where the PAD Factor (Perceptual Actual Differential) is likely to be very high (high levels of unpredictability in the environment but high levels of predictability signaled by the design). These areas will benefit most in safety terms from the introduction of ambiguity into the street design. A rational and orderly planning process may require a gradual reduction in traffic control devices, not a blanket overnight removal.

A rational planning approach may also require setting up some trial and experimental areas to prove that this approach actually works. It will not just be important to measure traffic speeds and accident rates in these areas but to also quantify any improvements in the vitality of community life.

Creative Communities International is seeking to partner with cities world-wide to test these new approaches to making streets safer and to incubate innovative social programs that enable residents to reclaim their streets for neighborhood building activities. A yearly Intrigue & Uncertainty World Tour will be part of this incubation process.

For more information on why street reclaiming reduces deaths and injuries see the article Does Intrigue and Uncertainty Compromise Safety? To see this liability article in its original context, download the Intrigue and Uncertainty ebooklet at the top of the page.