When an Outdated Design Finally Needs to be Put to Bed:
The Government’s “State of the Art” Defense in Road Design Cases

III. The “State of the Art” Defense

In 1985, the General Assembly amended Section 537.600.1(2) again to add the “state of the art” defense in actions against public entities for the negligent design of a road or highway.12 Section 537.600(2) provides:

In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.13

The statute sets out two requirements that must be met before the “state of the art” defense is applicable to a set of facts: 1) the plaintiff’s must allege the negligent design of a road or highway caused his injuries;14 2) and the highway must have been designed to standard before September 12, 1977. Although the statutory language seems clear, when exactly the “state of the art” defense is available for MHTC can be difficult to determine. Missouri courts have rarely had the opportunity to provide guidance on when the “state of the art” defense is actually available to MHTC.15 With the advent of binding arbitration, there will be even fewer opportunities for judicial interpretation.16 Below is a brief survey of Missouri cases which discuss the “state of the art” defense.

12 Hensley v. Jackson County, 227 S.W.3d 491, 495 (Mo. banc 2007). 
13 537.600.1(2), RSMo 1985. 
14 See Hensley, 227 S.W.3d at 495-96. 
15 On Westlaw, using the search [“sovereign immunity” & “state of the art”] only returns 14 cases in Missouri. The cases are: Hensley v. Jackson County, 227 S.W.3d 495 (Mo. banc 2007) (discussing whether a public entity can be sued for the negligent maintenance of roads and highways); Wellner v. Dir. of Revenue, 16 S.W.3d 352 (Mo. App. W.D. 2000) (does not mention the “state of the art” defense at all); Martin v. MHTC, 981 S.W.2d 577 (Mo. App. W.D. 1998) (ruling “state of the art” defense does not apply when MHTC has adopted new policy towards alleged negligent design and sets out to implement that policy); Linton v. MHTC, 980 S.W.2d 4 (Mo. E.D. 1998) (holding MHTC abandons the “state of the art” defense when it has made modification relating to the alleged negligent design); Linton v. MHTC, 1998 WL 25146 (Mo. App. E.D. 1998), vacated, 980 S.W.2d 4 (Mo. App. E.D. 1998); Leathers v. MHTC, 961 S.W.2d 83 (Mo. App. W.D. 1997) ( briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); St. Louis Air Cargo Serv. v. City of St. Louis, 929 S.W.2d 821 (Mo. App. E.D. 1996) (does not mention the “state of the art” defense at all); Fox v. City of St. Louis, 823 S.W.2d 22 (Mo. App. E.D. 1991) (briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); Johnson v. City of Springfield, 817 S.W.2d 611 (Mo. App. S.D. 1991) (briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); Brown v. MHTC, 805 S.W.2d 274 (Mo. App. W.D. 1991) (briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); Cole v. MHTC, 770 S.W.2d 296 (Mo. App. W.D. 1989) (briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988) (briefly mentioning the “state of the art” defense as the court explains how to apply 537.600(2)); Winston v. Reorganized Sch. Dist. R-2, Lawrence County, 636 S.W.2d 324 (Mo. banc 1982) (decided before the “state of the art” defense was added to 537.600(2)); Pitts v. Malcom Bliss Health Ctr., 521 S.W.2d 501 (Mo. App. E.D. 1975) (decided before the “state of the art” defense was added to 537.600(2)). 
16 226.095, RSMo
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II. Sovereign Immunity in Missouri
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