Government Immunities vs. Life-Saving Infrastructure

The executive producer of the TV show Black-ish lost both of her teens in a 2019 crash. Diving into the details of that crash, I noticed road infrastructure played a pivotal role, but still largely remains unaddressed.

The crash took place on State Route 62, the deadliest road in the High Desert area with such a high fatality rate that the nearby Marine Base has one of the highest fatality rates from off-duty crashes in the entire Marine Corp. The crash took place on a 50-mile segment of said road found to be 12 times deadlier than the average California road, with 13 people dying there in 12 years, despite its low usage. Instead, media focus remained on the inebriated driver without a wider conversation about why reaching 90 miles an hour on a road where cars make 90-degree turns is even possible.

Neither city nor state governments seem very responsive. The California Department of Transportation had been made aware of these fatalities by journalists and advocates—but the fatality rate did not trigger “enough” accidents for a safety investigation. Yucca Valley’s city government, 11 miles from the crash, took nearly two decades to install medians on some parts of the route. Much of State Route 62 lacks medians or barriers to separate oncoming traffic, and it contains few rumble strips or other infrastructure to prevent distracted lane departure. Given that fatal crashes on the route involve driver impairment at lower than average rates (44% compared to 57% nationally), road design seems a likely culprit.

While some countries investigate the reasons behind every fatal crash to ensure it doesn’t happen again, our legal system does not encourage a responsive government. (If you want to see how a crash investigation could look in your city, though, check out Strong Town’s Crash Analysis Studio program!)

This appears to be the case for two main reasons:

Just as housing and zoning laws affect so many hidden aspects of our lives, the way U.S. governments set up legal protections for itself, or “government immunities,” also seems to affect how motivated governments are to minimize road fatalities. State and local governments create their own legal protections, deciding when people can or can't sue them for certain things.
In instances where a citizen can file a lawsuit against the government, courts tend to review whether the government acted in accordance with widely accepted standards for road design. Since the 1930s, the accepted standards (i.e., American Association of State Highway and Transportation Officials (AASHTO)) have encouraged high-speed car travel and optimized solely for the “comfort, safety, and convenience for the motorist,” rather than minimizing total road deaths overall.

An example of these in play might be the 2021 Boston Department of Transportation removal of concrete barriers protecting cyclists and pedestrians on Massachusetts Avenue within the Boston Medical Center campus, due to four property damage incidents. These barriers had initially been installed after car crashes killed pedestrians and cyclists in three separate incidents in 2020. Just two weeks after the concrete barriers’ removal, another crash injured a pedestrian. The Boston Transportation Department subsequently installed plastic bollards, which still permit vehicles to veer off the road and pose a threat to pedestrians and cyclists, but mitigate the city's liability for property damage. The Boston Department of Transportation’s actions show legal structures are likely incentivizing avoiding property damage claims over saving lives.

While we have no official confirmation for why the Boston Transportation Department removed the concrete barriers, it may be due to minimizing successful lawsuits. The Boston Transportation Department may be expecting that AASHTO's guidelines may be the basis upon which they are judged in a potential court case. AASHTO could be interpreted as discouraging infrastructure that slows down cars to save lives, because this conflicts AASHTON’s core principle: motorist safety and convenience, even when motorists are speeding. AASHTO says roads should be designed with “as high a design speed as practicable” (the opposite of the European method of making roads encourage the appropriate speed via curves, medians, and bike lanes).

The historical pattern of courts reviewing outdated urban planning recommendations may help explain why city governments sometimes backtrack on life-saving infrastructure projects to avoid potential property damage lawsuits from drivers. Even as AASHTO and national guidelines are updated to incorporate the safety of people on bicycles or on foot, courts and city governments may have already developed a culture that has associated car-centric design with lower liability risk. AASHTO guidelines still encourage high speeds in areas with businesses (i.e., stroads) and discourage trees or fixed objects near major roads, inadvertently increasing the likelihood of speeding and crashes into businesses and people.

Government immunities may have also played a big part, though these present a complex dilemma because these both helped and hindered life-saving infrastructure. Many states opt to protect themselves from lawsuits regarding their planning, policies, and design decisions. This immunity could have helped pro-pedestrian infrastructure in Boston’s case because the city could have fended off property damage lawsuits by stating the concrete barriers were a deliberate design choice to deviate from AASHTO. However, immunities could have hindered pro-pedestrian infrastructures by claims that Boston failed to meet its road maintenance obligations, a category where governments don’t have immunity. However, even that road maintenance exemption has in some cases supported life-saving infrastructure: a New Mexico family sued the state for not having erected a median barrier that would have prevented a fatal crash, citing the lack of divider as a maintenance issue.

The patchwork of immunity structures across states and cities varies so widely that they often cannot be compared directly or translated between jurisdictions. This lack of consistency often hinders the implementation of proactive measures by governments to minimize road fatalities. A striking example of this disparity is evident when comparing the responses of the U.S. and the Netherlands in the 1970s, despite having similar road death rates at the time. The Dutch government's proactive approach led to a significant decrease in fatalities, resulting in a current death rate that is 70% lower than that of the United States. However, the U.S. system did not exhibit the same level of responsiveness, leading to unsafe roads and thus fewer children from biking and walking to school. The decline has been so significant that now less than 15% of children walk or bike to school, compared to approximately 50% in 1969.

Reforming government immunity laws has the potential to encourage safer street designs, but it must be approached cautiously. One proposed approach is to waive immunity for policy decisions that blatantly contradict safety data. However, this might inadvertently solidify auto-centric designs as "safety-oriented." Another option is granting a grace period before revoking immunity, but this could unintentionally deter reforms by exposing cities to liability—i.e., from speeding drivers who incur property damage from concrete barriers.

Establishing nation-wide minimum safety criteria shows the most potential, but the devil is in the details. Success requires careful design and detailed statutes, not just general statements, to prevent manipulation and loopholes. Street design involves many complex elements beyond just width. Still, minimum safety criteria encoded in state law could grant immunity only to designs meeting key benchmarks proven to save lives.

While improving immunities doctrine across all U.S. states and jurisdictions is a massive undertaking, advocates can still make government more responsive by the following three avenues:

Calling on legislatures to commit to bills that promise better infrastructure. This opens up an avenue for the cities and states to be liable for not taking promised action. A bicycle safety advocacy group is suing Portland for failing to build pedestrian and bicycle infrastructure as required under their 1971 “Bicycle Bill.”
Encourage residents to voice their concerns and keep records of their repeated complaints to government officials. A New York family won a court case against the city for its failure to do a traffic calming study on the road where their child was killed. While the premise of their win was not the fact that the street wasn’t safe, it was that the city was negligent in not doing a traffic calming study in response to recorded complaints. (Note: frustratingly, if the city had done a traffic study which concluded that no change was needed, the city would have been found not liable.)
Clarify that cities are free to deviate from AASHTO guidelines and still be protected for two main reasons: (1) AASHTO is usually no longer federally mandated, and (2) multiple courts have held that policy decisions, such as using other more safety-oriented manuals or intentional pro-pedestrian street features, are protected from negligence liability under “discretionary immunity.”

We must call for a nationwide review of state and local government immunities structures. Government immunities play a critical role in preventing excessive lawsuits from paralyzing officials, but they should not be a hindrance to life-saving infrastructure. Citizens pay the price, losing 40,000 loved ones a year on our roads. Each traffic death is preventable; we need only summon the will. The memory of lives cut short demands nothing less.

Abi Olvera is an advocate from Washington, DC, with past experience on the board of BikeABQ, Albuquerque's largest bicycle infrastructure safety organization. She has contributed to the conversation on road safety with a TEDxABQ talk on preventable road fatalities in New Mexico. Presently, she's taking a sabbatical from federal service to research governance issues in emerging technologies.

The views expressed in this article belong solely to the author and do not represent those of the U.S. government.