Why Liability Concerns Should Not Prevent Pedestrian-Friendly Streets

<font size="2"> <p> American commercial streets are often designed almost exclusively for cars; streets are often as many as eight or ten lanes wide, lengthening pedestrian trips and encouraging motorists to drive at speeds unsafe for pedestrians. </p>

Read Time: 4 minutes

April 8, 2008, 7:39 AM PDT

By Michael Lewyn @mlewyn

American commercial streets are often designed almost exclusively for cars; streets are often as many as eight or ten lanes wide, lengthening pedestrian trips and encouraging motorists to drive at speeds unsafe for pedestrians.

In part, the anti-pedestrian design of American streets is a result of transportation planners' perceptions of American tort law. When a road user injured in a car crash sues a government or its employees for negligent street design, courts may rely upon the "Green Book", a set of engineering guidelines drafted by the American Association of State Highway and Transportation Officials (AASHTO). And because AASHTO's street design rules have historically favored wide streets built to accommodate high-speed traffic, transportation planners sometimes believe that in order to avoid liability, they must do the same.

In fact, the Green Book no longer dictates the creation of high-speed streets, for two reasons.

First, in the majority of states, government entities and their employees are not liable for negligent decisions arising from "discretionary" government activities. As a rule, a government decision is "discretionary" when "broad policy factors were involved in reaching the allegedly negligent decision." (1) Such "broad policy factors" are certainly present where government officials are consciously choosing to weigh the policy of protecting pedestrian safety against the policy of encouraging fast driving.

For example, courts have held that government decisions related to street width are discretionary. In Stewart v. State, the Washington Supreme Court wrote: "The decision to build the freeway, the decision to place it in this particular location ... the number of lanes- these decisions involve a basic governmental policy" and are thus discretionary (2).

Discretionary immunity applies even when government has chosen to ignore Green Book guidelines. For example, in Schmitz v. City of Dubuque, the Iowa Supreme Court noted that a bike trail violated AASHTO standards, but nevertheless went on to address the merits of the city's discretionary immunity defense.(3)

Second, the Green Book itself does not require anti-pedestrian street design. The Green Book states that "its guidelines are not intended to "supercede the need for the application of sound principles by the knowledgeable design professional"(4) and the U.S. Court of Appeals for the Eighth Circuit has accordingly pointed out that the Green Book's provisions "are guidelines and are not mandatory."(5) Thus, AASHTO guidelines are not mandatory even in states rejecting discretionary immunity.

More importantly, the Green Book's guidelines, even if followed to the letter, are less anti-pedestrian than in the past. In its Foreword, the 2004 Green Book states: "[e]mphasis has been placed on the joint use of transportation corridors by pedestrians, cyclists and public transit vehicles. Designers should recognize the implications of this sharing of the transportation corridors and are encouraged to consider not only vehicular movement, but also movement of people"(6)

In particular, the Green Book states that in designing "local" residential streets, a streetbuilder's "overriding consideration is to foster a safe and pleasant environment whereas the convenience of the motorist is secondary." (7)To protect pedestrians, the Green Book actually recommends sidewalks even in rural and suburban areas (8).

And even Green Book guidelines regarding heavily trafficked streets are no longer oblivous to pedestrians' interests. According to the 2004 Green Book, arterial streets (the busiest type of street) may be as narrow as four lanes (9), and intermediate-volume collector streets (which connect residential and commercial areas) should typically be two lanes wide (10).

 In sum, the Green Book no longer requires transportation planners to build six-lane monster streets; thus, a transportation planner reluctant to build such streets no longer must worry about losing a lawsuit.



1. Breed v. Shaner, 562 P. 2d 436, 443, 57 Haw. 656, 667 (1977) 2. 92 Wash. 2d 285, 294, 597 P. 2d 101, 106 (1979). See also Mitchell v. State, 108 A.D.2d 1033, 1035, 486 N.Y.S.2d 97, 99 (N.Y.A.D. 3 Dept. 1985) (road adequately designed "despite its narrowness").

3. 682 N.W. 2d 70 (Iowa 2004). The court went on, however, to hold that the government's decision was based solely on cost and was thus not discretionary.

4. 2004 Green Book at xliii.

5. 486 F.3d 1030, 1033 (8th Cir. 2007).

6. 2004 Green Book at xliv.

7. Id. at 390.

8. Id. at 357-58, 436.

9. Id. at 473.

10. Id. at 433.

Michael Lewyn

Michael Lewyn is an associate professor at Touro College, Jacob D. Fuchsberg Law Center, in Long Island. His scholarship can be found at http://works.bepress.com/lewyn.


The Hyperloop’s Prospects Dim

The media is coming around to the idea that the hyperloop is not a near-term solution for the country’s transportation woes. It’s too little, too obvious, too late.

September 27, 2022 - James Brasuell

Suburban Homes

Where Housing Costs Are Falling Fastest

Although median home prices remain close to record highs in many cities, some of the country’s priciest metro areas are seeing home prices plummet.

September 23, 2022 - Bloomberg

Miami and Key Biscayne

The Great American Exodus: A Conservative's Perspective

During his keynote speech on September 11 at the National Conservatism Conference in Miami, Florida Governor Ron DeSantis describes the demographic shifts in America since he became governor in 2019 in what he calls the 'Great American Exodus.'

September 27, 2022 - The Wall Street Journal

Man with leather messenger bag riding CitiBike bike on New York street

The Resilience of Bikeshare

The inherent simplicity of bikes makes shared mobility systems a crucial transportation option during natural disasters.

43 minutes ago - Bloomberg CityLab

A map of the northwest corner of Oregon, focusing on the city of Hillsboro.

Cities Plan to Sue Over Oregon’s Parking Reforms

Nine of the 52 cities impacted by the state of Oregon’s parking requirements changes, approved earlier this year, plan to sue to stop the reforms.

1 hour ago - The Oregonian

Quarry House nestled among trees in Park City, Utah

Winners of the 2022 American Society of Landscape Architects

The Society’s annual awards highlight projects focused on reconnecting communities to the landscape and creating healthy community spaces.

2 hours ago - American Society Of Landscape Architects

New Case Study Posted on HUD User

HUD's Office of Policy Development and Research

New Updates on PD&R Edge

HUD's Office of Policy Development and Research

The World’s Leading Event for Cities

Smart City Expo World Congress

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Hand Drawing Master Plans

This course aims to provide an introduction into Urban Design Sketching focused on how to hand draw master plans using a mix of colored markers.