Should Arizona Reconsider Statutory Immunity for Negligent Freeway Maintenance?

A couple of days have passed since the tragic bridge collapse in Minneapolis which led to the deaths of at least five people. The cause of the bridge collapse on I-35W will not be known for quite some time. However, if the I-35W bridge collapsed due to ordinary wear and tear, such a tragedy may have been avoided had the Minnesota Department of Transportation placed a higher priority on bridge repair rather than continuously deferring needed maintenance. According to MSNBC, in 2005, the bridge had been rated by Federal Government inspectors as a step above “intolerable” needing major safety related reinforcements, upgrades or replacement. In 2005, the bridge had been considered

deemed to have met “minimum tolerable limits to be left in place as it is,” according to the federal National Bridge Inventory database of inspection records.

Because it supposedly met minimum tolerable limits, it appears that safety and upgrade funds were not prioritized toward repair or upgrade work on this bridge. Two years later, the bridge collapsed. I guess that sometime after 2005, the bridge stopped meeting “minimum tolerable limits to be left in place as it its.” At what point did this tragedy become preventable? What money could have been made available to do repair work on this bridge after Minnesota transportation officials received notice of safety dangers in 2005? If such a tragic event occurred in Arizona, would the State be held accountable for its refusal to make highway repairs right away? The answer to this question depends in large part on a review of statutes granting the state and other governmental entities immunity from suits challenging its policy and resource allocation decisions.

In Arizona, public entities may not be held responsible for negligence involving the exercise of fundamental government policy including:

1. A determination of whether to seek or whether to provide the resources necessary for any of the following:

(a) The purchase of equipment.

(b) The construction or maintenance of facilities.

(c) The hiring of personnel.

(d) The provision of governmental services.

Generally this means that if the Arizona Department of Transportation made a reasoned decision and considered yet rejected allocating resources to fix a bridge problem, the State may not necessarily be held accountable for its negligent decisions not to provide resources for construction or maintenance. However, it seems to me that if decisions not to allocate resources toward a particular safety project violate reasonable and sound engineering principles which later prove dangerously fatal, the State should not be immune from accountability for negligence. If the State contracted with a private company to make engineering resource-allocation decisions and the company acted negligently, it would accountable to the victims of its misplaced decisions. Why then should our State receive immunity for the same wrongdoing? I believe it may be time to re-examine the reasons for the legislative grant of immunity to this public entity. I wonder how quickly Department of Transportation officials would allocate monies to road and bridge repair knowing they would be held accountable for any unreasonable delays.

With current immunity protections in place, the Arizona Department of Transportation in its Traffic Engineering Policies, Guidelines and Procedures manual appears to prioritize safety projects by comparing the costs of safety countermeasures to the costs of fatalities, injuries and property damages. It suggests that each person’s life should be valued at $3,000,000 and considers safety projects purely mathematically to minimize costs. Based on the agency policy manual, it will not commit to roadway safety countermeasures or modifications unless the costs of all fatalities, serious injuries and vehicle damages exceed the costs of safety improvements. Apparently the Arizona Department of Transportation is willing to accept death and injury on our state’s roadways so long as the aggregate costs for deaths, injuries and vehicle property damages do not exceed the costs for bridge repair, installation of guard rails or other safety improvements. Does this mathematical justification for acceptable death and injury sound reasonable? Do you believe the State should place a value on life and only commit to safety projects when the safety project costs less than the total costs of lives for which it values at $3,000,000 per person? Does this economic model exclude social and non-economic costs of death, injury, property loss and disfigurement? What would happen in Arizona if a highway bridge collapsed. Applying the Arizona Department of Transportation economic formula to the bridge collapse tragedy which occurred in Minnesota, if the bridge repair costs exceeded $15,000,000, representing how the department values the loss of life of five people, policy-makers would accept such losses in Arizona. This is true even if decision-makers received notice of structural problems a few years prior.

Perhaps removing immunity protections for the decisions made by our state transportation department officials will ensure that freeway safety maintenance and upkeep projects occur quickly and efficiently and that the costs of safety improvements will not be compared to the cost of human life before considering particular hazard elimination projects.

What do you think? Should the Arizona Department of Transportation continue to receive immunity protection from various lawsuits against it? Are you satisfied with the safety decisions made and roadway projects undertaken by our Arizona Department of Transportation? Should the Department set as a goal the elimination of all hazards on our roadways or are some hazards, deaths and injuries simply acceptable? I’d like to hear your thoughts.