When an Outdated Design Finally Needs to be Put to Bed:
The Government’s “State of the Art” Defense in Road Design Cases
V. Legislative Solution
While this article has focused on addressing the “state of the art” defense from a litigation standpoint, there is also a need to address the language of the statute itself. The defense was added to 537.600 in recognition that public entities cannot upgrade every road or highway every time a new standard is developed due to limited resources and labor. However, the limited resources of public entities must be balanced with the duty to provide safe roadways to the citizens and motorist travelings on Missouri roadways.64 The problem with the language of the current “state of the art” defense is that it allows a roadway to be substandard as long as it was built to standard prior to 1977. When the “state of the art” defense was added to the statute in 1985, the defense was only available for roads that were 8 years old. This 1977 cutoff was undoubtedly meant to save the State money, but it does little to ensure that roads are safely designed now that the defense applies to roads over 30 years old. To better protect both the State and motorists, the legislature should consider adopting the following changes:
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 roadway, the public entity should be entitled to a defense that the roadway was designed to standard for a period of ten years after the roadway was originally designed if the public entity can prove by a preponderance of the evidence that the alleged negligence, 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. This defense is not available to the public entity if the highway or roadway has undergone modifications.
The Missouri Legislature must balance a citizen’s right to travel on safe roadways with the financial burden of keeping Missouri’s roads up to date. The proposal above would benefit public entities because it would apply to all roadways and not just those built pre-1977. At the same time, the proposal insists that public entities remain vigilant to current standards for highway and roadway designs. Under the proposal, the legislature could even go a step further and define what courts should consider as modifications or the legislature could leave it for the courts to define. Either way, the proposal gets rid of the arbitrary line drawn by the current “state of the art” defense and provides a more fluid approach that benefits both motorists and public entities.
64 See Martin, 981 S.W.2d at 582
F. Binding Arbitration
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