When an Outdated Design Finally Needs to be Put to Bed: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


In 2009 there were 152,995 accidents on Missouri highways and roadways.1 If a motorist or her passenger is injured on a Missouri highway that is not up to standards they may have a potential claim against the Missouri Highway and Transportation Commission (“MHTC”) or a local government entity. An injured motorist can sue MHTC based on negligent maintenance of the highway or a negligent design theory. If a plaintiff chooses to sue MHTC based on the negligent design of a highway or road, then MHTC will unquestionably attempt to utilize the “state of the art” defense provided for in Section 537.600.1(2). The “state of the art” defense basically says “while we know the road is outdated and does not meet current standards, the road met the standards in 1977 when Jimmy Carter was President, so we should not be liable” Although the “state of the art” defense does present an obstacle for plaintiffs to overcome, the defense is not always an insurmountable task when properly addressed by counsel. After briefly addressing the duties of MHTC and sovereign immunity, this article will explain the “state of the art” defense under Section 537.600.1(2) and Missouri case law interpreting the statute. Next the article will discuss some strategies for a plaintiff to properly address the defense. Finally, the authors will suggest statutory language that tries to draw a better balance between the limited resources available to public entities for road and highway improvements and the public entities’ duty to Missouri’s citizens to provide safe roads and highways than the current “state of the art” defense.

1 Missouri State Highway Patrol, 2009 Traffic Safety Compendium,
Missouri 2009 Traffic Safety Compendium


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I. Duty of the Missouri Highway and Transportation Commission

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