Does creating a plan to deal with highway design or safety defects or accommodation issues increase liability?
In the Summer 2014 Nuggets & Nibbles the article on Designing for Pedestrian Safety stated that it is a “myth that if a municipality is aware of an issue (on notice) and fails to address it, liability exposure is increased.” If a municipality is aware of an issue (or should have been) and does NOTHING liability is actually increased. The myth described in the article is that having a plan that may take a while to implement may increase liability. Liability is not increased if the municipality provides an adequate justification for the delay. Friedman v. State of New York, 67 NY2d 271 (1986).
Having a sound, well thought plan actually decreases liability if the plan is followed. The plan prioritizes which work is done first so repairs and upgrades are made in a systematic way. Just randomly fixing defects can be worse. To illustrate, let’s look at an example from the article: a demand (or goat) path showing a need for a sidewalk. Once the path has been there long enough to be established as a goat path, it would be clear to most folks that the Town or City should have known about the need to accommodate the pedestrians. Having a plan to upgrade the sidewalks (and install new ones) over a reasonable period of time would be defendable in court. Trying to claim you were not aware of the need is likely to fall on deaf ears. Upgrading sidewalks only after complaints might not fix the most critical sections in a reasonable manner. Only having a plan with a well thought out priority for repairs would be reasonable and defendable in court.