The onset of spring weather can mean only one thing: We are heading into prime season for road construction. If you haven’t seen the cones and Jersey barriers yet, you will soon. The new construction season brings with it some additional challenges for New York municipalities when asked to explain or defend their decision-making in a court of law. A 2016 Court of Appeals decision held that roadway design was not a governmental function (such as police or fire protection). This limits the ability of municipalities to receive immunity or even qualified immunity for their actions in roadway design claims.

With that decision lingering in the background, Harris Beach lawyers last year won summary judgment in connection with four cases against the city of New York stemming from high profile accidents at the off-ramp of the Queensboro Bridge in Long Island City.

The accidents occurred at almost the same spot eight days apart in 2011 and resulted in two fatalities, other serious injuries, and substantial property damage. Ultimately, state Supreme Court Justice Balter agreed with the city on two principal issues: First, that the area was safe for drivers who obeyed the rules of the road; and second, that the City of New York was entitled to invoke the doctrine of qualified immunity in connection with roadway improvements.

In this question and answer interview, Harris Beach attorneys Andrew Orenstein and Brad Wanner explain the concept of qualified immunity and why it is so important to the efficient operation of government and public services.

Question: What is the concept of qualified immunity and how does it apply to municipalities in building, designing and maintaining roadways?

Answer: The law recognizes that government affects our lives in different ways. Sometimes the government provides services that are uniquely governmental—such as providing police, fire and emergency medical services. The government also provides services such as housing and parks that traditionally were delivered by private entities.  When government provides these “proprietary” services, the law treats the government just as it would a private property owner.

In general, governmental immunity recognizes that there must be limits on a plaintiff’s ability to obtain compensation for injuries that arise because government cannot protect everyone perfectly all the time. No matter how much is spent on police, fire protection, social services, roads, schools, or other services, the government cannot prevent every conceivable accident or injury. Governmental immunity recognizes that government officials are experts and when they make legitimate choices, those hard decisions must be respected, even when outcomes are not ideal. It also recognizes that dollars spent on providing more government protection or paying judgments, are not available for other priorities.

Qualified immunity, in the context of roadway design, recognizes that governmental entities have limited resources to allocate to the design and construction of roadways, and that the design and construction of roadways is more a governmental function than a proprietary business function. This concept also recognizes the fact that there is a substantial degree of expertise required to design and construct roadways, as well as judgment on the part of roadway designers -- where should the road be placed?  How many lanes should it have in each direction? Should the road have travel in both directions? Where should traffic control devices be placed? What kind of traffic control devices should be placed?  What should the speed limit be?  The list could really go on, and because of that, we do not generally want lay people, lawyers, and courts second-guessing these decisions.

Q: How has the interpretation of municipal qualified immunity changed in New York courts of late?

A: The Court of Appeals decided a case called Turturro v. City of New York in December 2016 that was a significant change in the law. The Court explicitly held that roadway design was not a governmental function (such as police or fire protection), an argument that some government lawyers were trying to have the courts accept because of the more robust governmental immunity afforded for governmental functions. Instead, the Court held that roadway design was a proprietary function like roadway maintenance but, thankfully, continued to apply qualified immunity now limited to only those decisions in the design process that are related to roadway safety. Turturro also held, based on the facts of that case, that a jury rather than the Court should decide whether the municipality met its burden of entitlement to qualified immunity. It is unclear whether this trend will continue, but if it does, more and more of the professional judgments of roadway design experts will be reviewed by lay jurors.

Q: Why does that narrowing represent a problem for municipalities?

A: To obtain the protection of qualified immunity now, a municipality will have to establish through admissible evidence that the decisions made were for safety and not for some other purpose (such as driver convenience). This could be difficult when decisions were made 20, 30, 40 or more years ago and the people who made those decisions are not around and their documents cannot be located (or no longer exist).

Q: What were the basic issues in the Queensboro Bridge cases?

A: The Queensboro Bridge cases involved two separate accidents where drivers who were intoxicated and likely speeding failed to navigate the exit ramp of the Queensboro Bridge. This exit ramp was the subject of an extensive redesign process that began in the late 1990s through the late 2000s that addressed, by all accounts, the question of how to increase the ability of drivers to navigate the exit ramp safely. After completion of the project, the exit ramp was routinely navigated without issue by thousands of drivers on a daily basis for several years.

Q: What were your challenges in asserting qualified immunity?

A: Our biggest challenge was gathering evidence of the safety component of the redesign process and decisions. By the time the Queensboro Bridge cases entered discovery, well over 20 years had passed since the initial surveys and preliminary redesign discussions. Many of the individuals involved in that part of the work had moved on from the City of New York or the contractors and consultants the City retained. Documents had been lost or destroyed. Fortunately, we were able to piece together the safety-related component of the design process from government entities at the city, state and federal levels.

The Queensboro Bridge cases highlight the problem of hindsight bias that juries (and sometimes judges) struggle with when confronted with severe injuries and accidental deaths. As defendants, we rely on the fundamental legal principles such as qualified immunity and notice. If there was no reason to believe that the area was dangerous, there is no obligation to study it, and if it was studied, so long as the choices made were reasonable, there should be no liability. But whenever accidents cause injuries, there is a human tendency to start by examining the outcome and to view an accident as something that was “waiting to happen”. This is why courts need the tools and the courage to dismiss cases “on the law” and not leave them to juries who are left to focus on the circumstances before them, but not the harm that their decisions can do to broader social interests.

Q: What, ultimately, did the judge decide and what if any precedent might it have across New York?

A: With respect to qualified immunity, the state Supreme Court found that we established the city’s entitlement to qualified immunity because the redesign of the exit ramp was related to safety concerns. The Justice who heard and decided the summary judgment motions issued very detailed decisions, from both a factual and legal perspective, so we hope that these will form the groundwork for future decisions. However, the plaintiffs in all four cases have filed appeals which will determine the weight of these cases going forward.

Q: Based on the outcome of the Queensboro Bridge cases, does your basic advice to municipalities on roadway design change? If so, how?

A: We have presented on roadway design cases and best practices for defending these cases before the International Municipal Lawyers Association and the County Attorneys Association of the State of New York. Our advice to those organizations is the same today – document your rationale for roadway design before you get to litigation. If you are already in litigation, do not leave any stone unturned –- you never know where you will find the key piece of evidence that establishes the safety element of a redesign or design project.