Municipal Building Projects: Balancing Liability Concerns and Design Recommendations
Q. If someone using public property is injured, can the municipality be held liable for damages?
A. Yes. If a person is injured at a municipal facility, they can claim that the municipality is liable for the injuries if the facility was negligently constructed or maintained. Negligence is a type of tort, based upon a wrongful action or failure to act, that violates a duty to a person and is the cause of some injury.
This is not an easy case for the injured person to win. At one time, the doctrine of “sovereign immunity" prevented governments from being held liable at all for torts, but that doctrine has been abandoned in most states, including New Hampshire. See RSA 507-B:2. Instead, the statutes have defined the standard of care that governmental units must meet to avoid liability.
An example of such a statute is RSA 231:92, which states with respect to the design function:
“IV. The setting of construction, repair, or maintenance standards or levels of service for highways and sidewalks by municipal officials with responsibility therefor, whether accomplished formally or informally, shall be deemed a discretionary, policy function for which the municipality shall not be held liable in the absence of malice or bad faith."
New Hampshire law protects discretionary decisions made by public officials so long as the public officials act in good faith to set design standards. See Mahan v. N.H. Dep't of Admin. Servs., 141 N.H. 747, 693 A.2d 79, 82 (1997). The standards, however, must be reasonable. For example, the road itself must meet the minimum standard set forth in RSA 231:90, II:
“II. For purposes of this subdivision, a highway or sidewalk shall be considered “insufficient" only if:
(a) It is not passable in any safe manner by those persons or vehicles permitted on such sidewalk or highway by state law or by any more stringent local ordinance or regulation; or
(b) There exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such highway at posted speeds or upon such sidewalk, in obedience to all posted regulations, and in a manner which is reasonable and prudent as determined by the condition and state or repair of the highway or sidewalk, including any warning signs, and prevailing visibility and weather conditions.
III. A highway or sidewalk shall not, in the absence of impassability or hidden hazard as set forth in paragraph II, be considered “insufficient" merely by reason of the municipality's failure to construct, maintain or repair it to the same standard as some other highway or sidewalk, or to a level of service commensurate with its current level of public use."
While there are protections against liability, the protections are not absolute, and a suit may proceed to trial if a plaintiff alleges that a municipal or state employee negligently fails to carry out an established plan of improvement or maintenance. See Schoff v. Somersworth, 137 N.H. 583 (1993) and Delaney v. State, 146 N.H. 173 (2001).
Q. Since a municipality can be held liable for poor designs and for poor maintenance, must the municipality accept the design recommendations of a professional engineer when reviewing a proposed project?
This question about liability arises most frequently in the context of public works projects, but can also arise when a planning board receives a consulting engineering report on a proposed plan, when a zoning board of adjustment hears conflicting professional opinions on a pending appeal or when a conservation commission hears conflicting professional opinions regarding the environmental impact of a project. Municipal staff and elected officials receive a professional engineering opinion, but then are also confronted with opposition from citizens who object to some of the characteristics of the project, such as the width of a road improvement, the impact upon the character of a neighborhood or the loss of valuable vegetation.
There is no single answer to this question. The law confers no special status upon an engineering recommendation that will protect the municipality from liability in all cases. There is no “safe harbor" specification that will serve to prevent the risk of all future lawsuits by injured persons. The opposite is also true, in that choosing a different alternative will not automatically subject a municipality to liability for negligent design of a public improvement.
Design is an art as well as a science, since the interplay of human behavior and psychology with the physical variables of materials provides an endless variety of design challenges. Although the designer has access to texts and publications containing recommended guidelines and minimum standards, a professional engineer has the ability to modify a guideline by using “engineering judgment" and tailoring a design to meet the unique factors presented at a design location.
Engineering judgment means a design that accounts for the mistakes that children, adults, and the elderly will make based on inattention or lack of judgment as they walk, ride a bicycle, or operate a motor vehicle. In sensitive areas, the designer has alternatives available to warn the user of a dangerous situation, or protect a feature such as shade tress, or a stone wall. Cost is a factor in each case, and the “best" alternative may not be attainable when resources are limited. Public projects are negotiated within an environment of limited resources, and the courts will take that into account when examining an exercise of discretion. Thus, a recommendation need not be accepted in every case and the reviewing officials may request changes.
Q. How should local officials proceed when presented with a design that has significant opposition, or is costly, or is not aesthetically pleasing?
A. The bottom line for local officials is that the law requires them to review the proposed design alternatives under a “due diligence" type of standard. That is, they need not accept a professional engineering recommendation as the only reasonable design, or even the best design. They can and should consider additional factors, such as cost, environmental concerns, protection of scenic and historical resources, the value of mature shade vegetation, and the expressed desires of abutting property owners when making their decision. The job of the engineer is to recommend the safest alternative at a site, while the municipal officials with overall responsibility for the public project take these other factors into consideration.
To the extent that the “due diligence" review by the local officials convinces them that the proposed deviation from the professional engineering recommendation does not create a substantially greater risk of property damage or personal injury to its citizens than would be present if the original recommendation was approved, they will have a defense to a tort suit based upon their good faith exercise of discretion. The more that the records of the municipality support the diligence of their inquiry, the more likely they will escape liability. To the extent that they fail to exercise due diligence and to document the depth of their inquiry, the more likely that a potential plaintiff will be able to prove in the future that acceptance of a poor design was not based in good faith, and that the reviewing officials did not meet their duty to the public to build reasonably safe public improvements.
Local officials should carefully consider their decision to deviate from a recommendation if the engineer reports that he or she is unwilling to place their professional “stamp" upon the revised plans for a project. The professional engineer's stamp is a certification that the engineer believes that the plan represents a project that, if constructed, will be reasonably safe for public use. The professional engineer is a licensed professional, who is ethically interested in protecting the safety of persons who use the facilities that are designed, and personally interested in avoiding liability for malpractice of his or her profession. If the engineer will not “stamp" a revised specification, there is either a practical or ethical problem with the specification that should be fully explored and resolved before the local official approves the revised specification for construction.