Traffic Calming Programs & Emergency Response:
A Competition of Two Public Goods


Chapter 5. Civil Liability Issues

In any high profile, controversial issue that occurs within local government, one usually can be assured that legal implications will be introduced into the debate. The issue of traffic calming is certainly not immune from the realms of civil jurisprudence. In most instances, the legal aspects are usually centered on three elements of law. The first one generally questions the statutory authority of local governments to provide for traffic calming devices. Second, for local actions and decisions, it is reasonable to expect legal challenges to the constitutionality of infringing upon the rights of residents. And the third area for review will usually involve the level of exposure the local government might incur from those seeking personal and/or property damage relief as a result of the public policy. Obviously, for these reasons, legal review is recommended for good public policy formation.

The formally adopted decisions and actions of all elected officials of government are always subject to legal scrutiny and risk. That level of risk is usually based on established precedents of case law coupled with sound practices that are reinforced with established national standards. Traffic calming actions and programs are vulnerable to suit.

Although there are national and professional standards for components of public transportation roadway systems, there are none from an adoptive government body or agency for traffic calming devices. Two nationally accepted transportation standards, the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) established by the U.S. Federal Highway Administration, and A Policy of Geometric Design of Highways and Streets, produced by the American Association of State Highway and Transportation Officials, are silent as to required design features or placement of traffic calming devices. Again, with no authorizing laws, standards or accepted professional practices, a local government has potential exposure to unwanted legal challenges and claims.1

ADA Implications

Recently, more and more concern and debate is emerging regarding the impacts that traffic-calming devices have upon persons with disabilities. Disabled citizens charge that these devices cause undue pain, suffering, and injury whenever they routinely encounter these roadway modifications. Generally, these citizens are opposed to the vertical devices such as speed humps, raised crossings and traffic circles on public right of ways.

One legal exposure to local governments is related to the federally mandated American with Disabilities Act (ADA) of 1990 and the law’s application to public roadways. A review of some of the provisions of this law reveals the potential legal exposures:

ADA, Title II, State and Local Government, Department of Justice Regulations, 28 CFR Part 35.

§35.104 Definitions. Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock, or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where building, property, structure, or equipment is located.2

The ADA law also addresses the new construction and alterations of roadways.

§35.151 New Construction and Alterations.

(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.

(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. 3

Some ADA compliance problems, and even court issues, have arisen from differing interpretations of the term "alteration". In most instances, the removal of a roadway surface and replacement with a new layer of paving is not considered by most highway agencies as an "alteration". However, the above ADA definition of an "alteration" appears to be much broader with the language of "affects or could affect the usability of a facility or part of a facility". This was reflected in a recent court case interpreting the definition. "In Kinney v. Yerusalim (812 F. Supp. 547[F.D. PA, 1993]), a Federal district appeals court decision held, ‘if a street is to be altered to make it more usable by the general public, it must also be made more usable for those with ambulatory disabilities.’'"4 This ruling makes traffic calming, particularly vertical devices, more vulnerable to potential litigation.

Disabled citizens certainly view that placing speed humps upon roads is an "altered portion of the facility" that becomes less accessible and usable, and thus is in direct violation of Title II of the ADA. This is supported by the concern expressed in a City of Berkeley (CA) internal memorandum. "The Commission [on Disability] is concerned that installation of speed humps appears to be contrary to the intent of the Americans with Disabilities Act (ADA), which stipulates that new facilities must be ‘readily accessible to and usable by individuals with disabilities.’ The ADA Title II regulations define ‘facility’ to include ‘roads’. The regulations go on to say that alterations to facilities must be accessible and usable ‘to the maximum extent feasible.’"5

Most recently, the Berkeley Commission on Disability further asserted their concerns prior to City Council action slated for November 23, 1999:

The Commission opposes installation of any traffic management tool preventing equal access. If vertical deflection devices were scientifically evaluated and show to be safe for vulnerable populations, there would be no such opposition; but it is not acceptable to install any vertical deflection devices for traffic management if they are designed to cause discomfort by generating up-and-down motion. Devices differing from current designs, but causing similar discomfort, also would restrict access for persons with disabilities. Examples of such variations included speed tables or raised pedestrian crosswalks, raised sections of roadway designed for vertical deflection of vehicles...Until adequate biomedical and engineering research is conducted, the moratorium should be retained on vertical deflection devices.6

Obviously, concerned about the legal implications regarding the ADA statute, the Berkeley City Council voted to indefinitely extend the moratorium on speed humps that had been in effect since July 1995.

Like other issues with traffic calming, the impacts upon disabled residents are difficult to quantify or qualify. There is little doubt that traveling over speed humps can be painful for those with orthopedic medical conditions and disabilities. "Contacts with disabled residents in Berkeley indicate that a number have problems with speed humps...they feel pain riding over humps in a vehicle, and they know of others who also do...Some slow down to nearly a full stop before crossing the humps, or cross them at an angle to lessen the impact."7 The Berkeley report also revealed that crossing humps in para-transit vehicles was frequently cited as a problem. Like EMS units, these para-transit vehicles have a high center of gravity and heavy suspension systems.

Similar concerns have been expressed from other special transit providers. "Many of our passengers have called us to complain about the rough ride they experience with speed humps and traffic circles."8 This local transit provider urged the Boulder City Council members to consider traffic device alternatives that do not use physical barriers such as humps and traffic circles.

General Local Government Liability

With exception of federal law, the general liabilities to local governments fall under the auspices of state law. As state laws vary within states, so do the decisions and verdicts of the state courts. This generally depends upon how much authority has been extended to local governments by the states to regulate and implement traffic control measures. Some states have retained full control of all public roadways and streets, whereas others have granted limited authorities to the local government for local control. Civil action resulting in imposed personal or property damage could be expected in a number of areas.

Speed Bumps Banned

After automobiles were invented at the turn of the century, and their use became abundant and common, local governments were immediately confronted with how to control their speeds. As such, the traffic calming issue of today is by far nothing new for policy makers. The actual idea of using physical barriers began early on with the installation of speed bumps on public streets. Speed bumps differ greatly than speed humps as they are much narrower and have a greater degree of rise, as do the more modern speed humps of today. Speed humps generally are 12 feet to 22 feet wide, and are generally 3 or 4 inches in height. Whereas, the older speed bump were only 3 to 36 inches wide and 3 to 6 inches high.9 However, their public use was short lived. Figure 5.1 displays the differences of the two:

Figure 5.1
Speed Hump vs. Speed Bump Design

line drawing of a speed hump profile

Typical Speed Hump

line drawing of a speed bump profile

Typical Speed Bump

Source: Transportation Quarterly, Vol. 47, No.3, July 1993, p.459.

Clear, case law has been established which bans the use of speed bumps on public streets. One such case was Vicksburg v. Harralson, 101 So. 713 (Miss.1924); whereby the court issued a directed verdict against the City of Vicksburg. In upholding this verdict, the Mississippi Supreme Court asserted: We do not think the city had the right to place a dangerous device or obstruction in its street, making it unsafe, and which would likely injure persons traveling in automobiles over it.

This scheme or method of warning drivers appears to us to be unreasonable, too drastic, and perilous for the purpose intended. The method of injuring one person in order to prevent danger to another is wrong in principle, as we see it, and is not such a reasonable regulation for the public safety as is warranted under the law, but is negligence. Creating one danger to prevent another is not in accord with the public safety - the very thing involved and desired.10

Traffic Control Device Legalities

One case in California had established that some devices used in traffic calming programs were illegal. "A locality has no right to interfere with the free flow of traffic unless expressly authorized by State statue. This fact led to the best-known legal challenge to traffic calming. Rumford v. City of Berkeley, 31 Cal.3d 545, 645 P.2d 124 [1982]...The California Supreme Court ruled that the diverters and half closures were traffic control devices not authorized by State law...Hence, the diverters and half closures were declared illegal."11 However, after this case law was established, the California Legislature responded by revising the statute to allow the local governments to use certain traffic calming devices not previously defined under the old law.

A 1998 Florida case brought the speed hump program in Sarasota to a complete halt. Challenging the City of Sarasota’s authority to install speed humps, two citizens filed suit in state court. In a June 29, 1998 ruling from the Twelfth Judicial Circuit Court of Florida, Judge Robert B. Bennett ruled in favor of the plaintiffs. "In his order, the judge explained that Sarasota can put up only the traffic-control devices that are noted in the Federal Highway Administration’s Manual on Uniform Traffic Control Devices (1988 Edition). Speed humps and speed tables are not included."12

This Court also adjudged: "Defendant [City of Sarasota] is permanently enjoined from erecting speed humps or speed tables on the streets or highways of the City of Sarasota. [Further, the] Defendant is permanently and mandatorily enjoined to forthwith remove from the streets and highways of the City of Sarasota all speed humps and speed tables previously erected and to restore the effected streets and highways to the condition they were in prior to the construction of the speed humps and speed tables."13

However, on appeal by the City of Sarasota, the Florida Second District Court of Appeal overturned the ruling from the lower court. "In overruling Bennett, the appellate court did not address the key question of whether speed humps are legal, however. Instead, the three-judge panel ruled that the plaintiffs, Robert Windom and John Hartenstine, did not have legal standing to file the suit. The court’s failure to address the legality of the humps themselves leaves open the possibility of another successful action against them...the appellate court stopped well short of declaring humps legal. The narrow scope of the court’s ruling means that adding more humps could still pose some risk."14

Another case, Marlboro Township v. Freehold Regional High School District, involves speed bumps and the local fire code. The Freehold High School installed speed bumps at the entrance of the school and at a side entrance in an effort to keep students from speeding through the parking lot. The local fire department of Marlboro Township, New Jersey considered the speed humps a clear violation of the fire code. Adopted by ordinance, the BOCA (Building Officials and Code Administrators, Inc.) Fire Prevention Code/1978, prohibits the erection and maintenance of speed humps. Formal requests to remove the humps were denied by the school district.

After failing to obtain voluntary compliance, the fire inspector swore out a summons charging the school administrator with violation of the ordinance. The municipal court judge found the school district in violation, ordered the humps removed, and fined the school administrator $250. On appeal, the Superior Court of New Jersey reversed the decision, citing the school district was not bound by the code.

However, the State Appeals Court reversed and upheld the municipal court decision stating that the school building was exempt from the fire code, but that the surrounding parking lot was not. The court in upholding the conviction, enjoined the hump removals, and suspended the imposed fine for the administrator.

Recognizing conflicting policy and intentions the Appeals Court had this to say: "This appeal demonstrates graphically that which occurs when genuinely caring persons face each other armed with substantial and genuine conflicting policy concerns".15

Currently, Texas law is silent regarding the authorization or use of traffic control devices. In addition, no Texas legal cases were identified pertaining to the usage of such devices upon public streets.

Personal Injury

There is great potential for vehicle occupants to be injured from traffic calming devices. Severe injuries can occur to the head, neck and spinal vertebrae, along with various strains and/or bruising whenever a vehicle becomes out of control after crossing a device and striking another vehicle, fixed object and/or pedestrian.

Local governments lie dangerously close to the liability for such injuries. A state court appeals case from Ohio, Sanchez v. Austintown Township Trustees, 1986 Ohio App., LEXIS 5410 (Ohio App. 1986) serves as notice to local governments for personal liability claims. After a passenger was unexpectedly thrown to the floor of a motor home when it crossed over a speed bump in a public park, the court ruled that a municipality could be liable for the personal injury and damage resulting from such a device.16

Such a liability was also found in the private sector in Harrington v. LaBelle’s of Colorado, Inc., 765 P.2d 732 (Mont. 1988). In this case, a bicyclist was awarded a $125,000 settlement against the parking lot owner when he was injured after striking a speed bump.17

Noise Nuisance

The creation of additional noise as a nuisance is potential for another legal liability. Residents often complain of increased noise from vehicles downshifting, decelerating, accelerating, or actually making physical vehicular/street contact while navigating calming devices. This is noted in the case of Friends of H Street v. City of Sacramento, 24 Cal.2d 607, (Cal. Ct. App. Oct. 21, 1993). This case also makes reference to "cut-through traffic", which is a common occurrence in neighborhoods with traffic calming devices, as the traffic tends to move to a parallel street. Residents were trying to get the City to take some action regarding heavy traffic volumes, speed, and noise on their neighborhood street. Their preference was to place restrictions on the street so that these nuisances would be removed. "The court ruled against the residents, holding that the routing of traffic is at the discretion of the city council, that the rerouting of traffic in this case would hurt other streets, and that the city council could not please everyone. As the court saw it: ‘[l]oss of peace and quiet is a fact of life which must be endured by all who live in the vicinity of freeways, highways, and city streets."18

Vibration/Structure Damage

In the United Kingdom, there is growing concern that increased vibrations from vehicle weight shifting while traversing over speed humps has caused cracks in the foundations of nearby homes. Recent studies by the Transport Research Laboratory (TRL), England’s leading authority on transportation issues, have shown that certain soils can transmit harmful tremors straight into the foundations of buildings. As a result of these findings, the TRL will recommend local governments to test soil stability before installing any speed humps.

"Amanda Dickson is one of many homeowners whose worst fears have been confirmed by the latest studies. Large cracks appeared in the basement of her north London house soon after humps were laid outside."19 She went on to report that trucks and vans caused the worst vibrations. Further, a chartered building surveyor of the area noted that vibrations from speed humps can be a serious contributing factor to damage of older buildings. "The new findings will worry local authorities, many of which first installed humps on the TRL’s advice and now face lawsuits from disgruntled householders which could run into millions of pounds".20

Accidental Air Bag Deployment

With more and more U.S. vehicles being required to install airbags, there is a growing concern that accidental deployments of these safety devices will increase. This has been evidenced by Nissan’s four confirmed incidents of air bag deployments involving Maxima sedans after striking speed bumps.21 "The vertical jolt of going over a speed bump can trigger some crash sensors to go off and inflate the airbag...Air bags have been triggered when going over speed bumps and potholes on the road, hitting curbs at low speeds, and by other minor disturbances...Air bag-caused injuries to the face, chest, hands, and arms could occur to the driver and passenger, as have occurred in crashes as low as 8 to 15 miles per hour. Of the approximately 42 children who have been tragically killed by airbags, the vast majority has been in low-speed accidents below 15 miles per hour."22

Failure to Warn Drivers

Associated with unexpected impacts, significant liability could be imposed particularly when the local government fails to properly sign and adequately warn the motorist of traffic calming devices. This duty to warn was established in Polk County v. Donna M. Sofka.

"If, however, the governmental entity knows when it creates a curve that a vehicle cannot safely negotiate the curve at speeds of more than twenty-five miles per hour, such entity must take steps to warn the public of the danger."23

Street Damage

There is debate, within transportation professionals, over whether or not speed humps cause damage to the actual streets they are placed upon. The City of Griffin, Georgia failed to meet the legalities of a policy interpretation by the State Department of Transportation (DOT). In Georgia, the State DOT provides financial assistance for street paving within cities. In order to receive state funding of $285,000 to repave 18 streets, this City had to meet all of the terms of the DOT. One of those terms was DOT’s refusal to repave any street that contained speed humps. The City agreed to remove speed humps so as to receive the funding.24

"DOT Commissioner Wayne Shackelford confirmed in an interview that speed humps are against department policy and have been for years. ‘We don’t fund resurfacing on any street that has speed humps,’ he said. Shackelford believes speed humps cause pavement to wear out quicker."25 Additionally, severe gouging and abrasion can occur to the pavement from the undercarriages of vehicles when crossing speed humps too fast.

Vehicle Damage Claims

In some cases, one could certainly argue that calming devices cause damages likewise to the undercarriages of vehicles while traversing over humps at posted speed limits. In turn, one could expect a higher frequency of damage claims rather than actual law suits. "Montgomery County has paid two claims involving speed humps. In one case, the driver of a community college van went over a hump at a speed alleged to be too high, and a student was injured. The county agreed to pay $2,500 in medical expenses to avoid the expense of litigation. In the other case, hump markings came off on the undercarriage of a car that had bottomed out traveling too fast. Because the hump markings had been improperly applied, the county assumed liability..."26

Summary

On the surface, one would not expect significant liability potential with the use of traffic calming devices. However, there are numerous legal vulnerabilities that exist for local governments with traffic calming programs. The largest exposure appears to rest with the modifications to roadways while complying with the Americans with Disabilities Act. Another area that is not very clear is the authority of the local government to use traffic calming devices since they are not recognized within national transportation standards.

As has been reviewed, there are also numerous potential liabilities relating to personal liability and property damage from traffic calming devices. In short, there are no precedent setting cases that have outright declared speed humps illegal. However, there is strong evidence that some citizens are turning more towards the court systems in an attempt to suspend traffic calming programs. As such, local governments must fully examine their legal liability potential prior to adopting traffic calming initiatives.

Notes

1 Reid Ewing, Traffic Calming: State of the Practice, (Washington, D.C.: Institute of Transportation Engineers, August 1999), p. 130.

2 28 CFR 35.104: Nondiscrimination on the Basis of disability in State and Local Government Services. (Current through March 8, 2000). Text from Code of Federal Regulations. Available from: Congressional Universe (Online Service). Bethesda, MD: Congressional Information Service.

3 28 CFR 35.151: Nondiscrimination on the Basis of disability in State and Local Government Services. (Current through March 8, 2000). Text from Code of Federal Regulations. Available from: Congressional Universe (Online Service). Bethesda, MD: Congressional Information Service.

4 U.S. Architectural and Transportation Barriers Compliance Board, "Accessible Rights-of-Way: A Design Guide", (Washington, D.C., November 1999), p. 20.

5 Memorandum from Karen Craig, Chair, Commission on Disability, City of Berkeley (CA), to Mayor and Members of the City Council of Berkeley (CA), November 10, 1998.

6 Memorandum from Karen Craig, Chair, Commission on Disability, City of Berkeley (CA), to Mayor and Members of the City Council of Berkeley (CA), November 23, 1999.

7 City of Berkeley, Advance Planning Division, "An Evaluation of the Speed Hump Program in the City of Berkeley," Berkeley, CA, October 1997, p. 29.

8 Letter from Linda Diebert & Lenna Kottke, Executive Co-Directors, Boulder Special Transit, to Boulder City Council, April 3, 1997.

9 Marcel Klik and Ardeshir Faghri, "A Comparative Evaluation of Speed Humps and Deviations", Transportation Quarterly, vol. 47, no. 3 (July, 1993), p. 459.

10 Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713 (Miss. November 17, 1924)

11 Ewing, Traffic Calming: State of the Practice, p. 131.

12 Joanne B. Walker, "Speed bumps, tables meet legal obstacle", St. Petersburg Times, Neighborhood Times, Neighbor to Neighbor Section, (July 5, 1998), p. 6.

13 Windom v. City of Sarasota, Case No. 96-4501-CA-01 (Fla. 12th Cir. Ct., June 29, 1998).

14 Gordon Russell, "Speed control devices allowed; the appellate court ruling skirted the issue, however, so it may not be over", Sarasota Herald-Tribune, June 24, 1999, p. 1-A.

15 Marlboro Township v. Freehold Regional High School District, 195 N.J. Super. 245; 478 A.2d 1228; 1984 N.J. Super. (N.J. Super. Ct. App. Div. August 7, 1984).

16 Sanchez v. Austintown Township Trustees, No. 85 C.A.1, LEXIS 5410, at *1 (Ohio Ct. App., January 28, 1986).

17 Harrington v. LaBelle’s of Colorado, Inc., 235 Mont. 80, 765 P.2d 732 (Mont. December 6, 1988)

18 Ewing, Traffic Calming: State of the Practice, p. 134.

19 Jonathan Leake, "Road humps can damage houses", Sunday Times, Home news (December 28, 1997).

20 Ibid.

21 21 Bryon Bloch, "Speed Bumps Can Cause Vehicle Airbag Activation", (paper presented to the "Save Our Streets" citizen organization of Rockville, MD, August 4, 1997), p. 1-2.

22 Ibid.

23 Polk County v. Donna M. Sofka, 95-01886, 675 So. 2d 615 (Fla. Dist. Ct. App., April 19, 1996).

24 Joey Ledford, "DOT thinks humps are for camels", Atlanta Journal-Constitution, (July 31, 1988), p. 1C.

25 Ibid.

26 Ewing, Traffic Calming: State of the Practice, p. 135-136.


© Les Bunte, 2000

Cover page *** Summary *** Emergency Service Issues *** Civil Liability Issues