Decisions relating to public roads and other infrastructure are likely to be an important component of an overall managed retreat strategy. As discussed in the Takings section, this may entail decisions to disinvest through reduced maintenance or abandonment of infrastructure. Many disinvestment strategies (in particular, formal closure, discontinuance, or abandonment of a road) will eliminate the duty to maintain the infrastructure and thereby preempt any potential negligence claims for inadequate maintenance in the face of increasing erosion, inundation, or other hazards affecting road condition. However, agencies with jurisdiction over transportation assets in high-risk areas may still want to understand the legal framework for negligence and how it has been interpreted in the context of maintenance of public infrastructure in their jurisdiction, as it could affect the nature or timing of decisions to disinvest and avoid potential negligence claims.
In any negligence claim, four elements must be met: (1) the existence of a legal duty (in this context, duty to maintain); (2) breach of duty (i.e., inadequate maintenance or failure to maintain); (3) causation (i.e., that the breach of duty caused some sort of harm); and (4) damages (i.e., actual harm or damage experienced). This overview is not intended to provide a comprehensive or state-by-state analysis of negligence elements, remedies, or defenses, but rather provides a brief introduction to the duty and breach elements of negligence in the context of maintaining public roads in coastal areas and typical defenses that might be available. For more information on tools to relocate or disinvest in infrastructure in a managed retreat context, see the Infrastructure section of this toolkit.
In general, governmental entities (states, counties, towns, and municipalities) owe a duty of care to the public to keep roads and bridges under their jurisdictionSee footnote 1 in reasonable repair; that is, they have a legal duty to maintain the infrastructure.See footnote 2 The level of maintenance required, and whether it encompasses an affirmative duty to improve the asset, varies according to state law; different standards may apply for different classifications of roads and may also differ somewhat for state-, county-, and municipally-owned roads. For example, the standard might be framed in safety-based terms (e.g., Florida and Georgia’s requirements that municipal roads be kept in a “reasonably safe condition”) or in more performance-based terms (e.g., Florida’s requirement that county roads can provide “meaningful access,” or Georgia’s requirement that county roads can accommodate “ordinary loads”).See footnote 3
The second element of negligence occurs when the public agency has failed to meet (i.e., breached) that duty of care, typically by failing to maintain the infrastructure according to the safety or performance-based standard as established by statutory and/or case law, which in turn may be informed by industry standards or best practice. In the context of flooding, this breach of duty could occur when, for example, repeated tidal inundation events cause structural damage to the roadway that renders the road unsafe for travel because the government responsible for the roadway did not ameliorate the known and recurring dangerous condition (repeated tidal inundation events).
In an era of climate change and sea-level rise, it is becoming more challenging for infrastructure agencies to budget for routine maintenance or improvements to mitigate or prevent water obstructions, damage, and other safety hazards. With more frequent erosion, inundation events, and storm-related damage, maintenance costs are increasing — which will make it more costly and difficult for agencies to meet their duty of care. In some areas, “routine” maintenance (e.g., repaving) may cease to be sufficient. Although the duty to maintain and repair would not typically require an agency to upgrade (e.g., adapt road design or alignment to make it more resilient to sea-level rise), upgrades may in fact be necessary in order to maintain road safety and performance.See footnote 4 In other words, when it comes time to repave a road segment — an activity that historically would fall within the category of routine maintenance and repair — an agency may find it necessary to elevate the road (which would normally fall within the category of upgrades) in order to prevent increasing flooding and ensure safe travel and levels of service. State courts have not addressed this issue of where the lines are drawn between routine maintenance and upgrades in the context of sea-level rise and increasing coastal hazards. However, there could be costly implications for potential liability for infrastructure and potential losses if state courts were to consider upgrades, such as road elevations, as falling within the duty to “maintain.”See footnote 5 For this reason, agencies may wish to consider a proactive disinvestment strategy (e.g., abandoning or reclassifying roads to reduce maintenance standards) that removes or modifies the duty to maintain.See footnote 6
Given the considerations noted above, infrastructure agencies that are opting for an ongoing maintenance strategy (as opposed to disinvestment) in the face of increasing coastal hazards should understand whether they can defend against any potential negligence claims. In some jurisdictions, government agencies may do so by claiming sovereign immunity, a legal doctrine preventing the government from being sued without its consent — which applies under different circumstances to different government actors (federal, state, local). State tort claims acts often provide a framework for when government can be liable for harm resulting from conditions of highways and roads.See footnote 7 Typically, government entities can claim immunity for any discretionary or planning activities (i.e., activities that require exercise of judgment), but not for activities categorized as ministerial, operational, or proprietary.See footnote 8 In general, then, this defense will depend on whether state courts have interpreted repair and maintenance to be discretionary or ministerial/operational.See footnote 9 The distinction may depend upon how specifically maintenance duties and activities are prescribed,See footnote 10 and the distinction may be different depending on the jurisdictional level, e.g., municipal vs. county vs. state.See footnote 11 “Upgrades” (e.g., design adaptations to render a road more resilient) are more likely to be considered discretionary and therefore subject to immunity — though as noted above, this may not always be a clear distinction in a climate change-driven sea-level rise context.
Aside from immunity defenses, a government may also succeed against a negligence claim if the government has acted reasonably under the circumstances (i.e., met its duty to maintain). In the case of hazards, such as flooding and inundation, the government should provide warnings about the hazard and take steps to prevent harm to users. If sovereign immunity would not apply, agencies should evaluate the circumstances in which courts have interpreted maintenance actions as reasonable in the face of coastal hazards like flooding and erosion.See footnote 12
1. Often a governmental entity must first accept jurisdiction over a road before subsequently being legally responsible for maintenance; however, in some cases, statutory law may allow a state government to convey a road to political subdivisions within the state without their consent, creating a duty to maintain at the county or municipal level, for example. 39 Am. Jur. 2d Highways, Streets, and Bridges § 55 (2020). Back to contentBack to content
2. See 39 Am. Jur. 2d Highways, Streets, and Bridges §§ 51, 81-83 (2020). Back to contentBack to content
3. See Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 85, 91 (2019). In some jurisdictions, the infrastructure owner/operator’s duty may go beyond a traditional duty to maintain. For example, in Georgia, the state Department of Transportation has a duty to “improve” alongside its duty to maintain; however, it applies in limited circumstances, such as where a highway did not meet generally accepted engineering standards when designed, as opposed to imposing a more stringent duty to upgrade. Ga. Code § 32-2-2. Back to contentBack to content
4. For a more in-depth discussion of potential shifting of duties relating to roads in coastal areas, see Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 90–92 (2019). Back to contentBack to content
5. See, e.g., Thomas Ruppert, Castles—and Roads—in the Sand: Do All Roads Lead to a“Taking”?, 48 Envt’l L. Rep 10914 (2018). Cf. also Thomas Ruppert & Carly Grimm, Drowning in Place: Local Government Costs and Liabilities for Flooding Due to Sea-Level Rise, Fla. Bar J. Vol. 87, No. 9 (2013) (noting that the distinction between “maintenance” versus “upgrade” determines potential liability for infrastructure decisions). Back to contentBack to content
6. See Kirkpatrick v. Town of Nags Head, 713 S.E.2d 151 (N.C. Ct. App. 2011) (declining to impose on the town a duty to reconstruct a repeatedly washed out road, where the town had decided to cease repairs, and therefore finding the town immune from liability in tort). Back to contentBack to content
7. 1 Civ. Actions Against State & Loc. Gov't § 3:25 (2020). See also 39 Am. Jur. 2d Highways, Streets, and Bridges §§ 81-83 (2020). Back to contentBack to content
9. For example, Florida and North Carolina classify road maintenance as operational and not subject to an immunity defense, whereas South Carolina classifies road maintenance as discretionary and subject to an immunity defense. See Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 92–93 (2019). Back to contentBack to content
10. See, e.g., Northrup v. Witkowski, 210 A.3d 29, 41 (Conn. 2019) (“under modern principles of governmental immunity, the salient consideration in determining whether a municipal duty is discretionary or ministerial is not whether the duty was imposed on the municipality by statute or voluntarily assumed pursuant to its own ordinances or regulations, but whether there is any statute, ‘city charter provision, ordinance, regulation, rule, policy, or any other directive [requiring the government official to act in a] prescribed manner.’” (emphasis in original) (quoting Violano v. Fernandez, 907 A.2d 1188 (Conn. 2006))). Back to contentBack to content
11. For a discussion of how road maintenance is interpreted (discretionary vs. ministerial) in the southeastern states of Florida, Georgia, South Carolina, and North Carolina, see Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 92–97 (2019). Back to contentBack to content
12. Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 95–96 (2019) (noting that government entities in Florida “may not be liable if [they perform] whatever maintenance deemed reasonably possible, or if [they] took steps to warn of the road hazard”). Back to contentBack to content