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•The purpose of this presentation is to discuss the use of open data/open data environments in the Clarus program, and to describe the primary institutional issue – that of liability.

The Clarus program was an initiative designed to create a network of sensing stations and other mechanisms to collect and aggregate weather data, and to offer this data to transportation managers for improved road-weather management. The Clarus is an open data environment that feeds RWIS.

I.There appear to be four areas of liability concerns associated with this concept of an open data environment and more specific data that is now widely available:

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•The first area of concern is the dissemination of this data as information given directly to the public especially through the internet as a medium of choice.

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•The second issue was the availability of that information to the public through more indirect or 3rd party means such as Clarus or through a weather service provider that repackages DOT manufactured data.

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•In both cases, the concern dealt with providing inaccurate data or having data interpreted in an inaccurate manner and upon which travel decisions rested.

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•The third and fourth concerns are institutional – the duty of DOT to respond to RWIS that signals a weather-related roadway hazard and the hazards of not using RWIS technologies when they are expected or indicated.

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•The questions that resulted had to do with the extent of liability in any of these scenarios.

I.There are several ways to address these liability issues:

• Direct dissemination of all RWIS information directly to the public is not necessarily the best strategy and will most likely open up agencies to higher chances of litigation. By limiting the amount of information shared with the public and other given entities, agencies can manage their liability while maximizing the practical value to the public.

•The prominent display of disclaimers associated with RWIS data is another popular vehicle for reducing liability issues. These provide a valuable legal protection for web site operators. However, disclaimers legal powers are not always iron clad in litigation and should be constructed with the help of a legal expert.

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•Drafting a terms of use (TOU) policy which dictate how data can be used by those who access it is another way to reduce liability. This will also give DOTs awareness over who is accessing their data and how they are using it, as well as making use of contract and copyright law through indemnity clauses and copyright grants.

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•Maximizing the operational efficiency of a given system also protects against RWIS-related liability because data is provided in an accurate and timely manner. Making sure that the data that goes out is quality can address RWIS-related liability concerns very well.

•DOTs can also host outreach and education activities related to driving during adverse weather and educating on RWIS technologies and the DOT maintenance practices. Many DOTs use public relations programs or post explanatory statements, winter maintenance policies or winter driving tips on their sites.

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•Risk-management strategies can also be explored. This means that DOTs identify potential exposure to potential crashes and tort liability with the general goal to minimize both fiscal impact of tort claims and public harm.

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•Ongoing allocation of funds towards RWIS programs is necessary to meet the needs of the public even in the midst of a trench in transportation funding. While allocating money towards RWIS programs may only seem linear, the external effects of those fiscal considerations are large including increased efficiency and productivity; positive effects on roadway safety; reduced likelihood of litigation; and preemption of costly, responsive maintenance or system-wide upgrades.

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•There is also the legislative route which may be able to reduce liability on RWIS-related claims by granting limitations and immunity to the state when a weather-influenced accident occurs.

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•Legislators can also play a fundamental role in the ongoing funding of RWIS programs for DOTs by granting public funding towards bolstering RWIS-related funding.

I.With industry experts we first identified the areas of law that were applicable. Three areas of law appear relevant:

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•Tort liability and duties and standards of care is the first area. This law helps DOTs determine how to avoid a “breach of duty” by providing pertinent information to the public in case of dangerous roadway conditions. There are dangers associated with this expanded responsibility set, as DOTs may now have a disproportionate increase in expectations in terms of weather-related roadway warnings and prevention of weather-related accidents.

•RWIS may also over-extend DOTs because of the augmentation of incoming information associated with negative roadway conditions. However, cases related to roadway maintenance have generally acknowledged the limitation of DOTs in terms of personnel and equipment availability. Also, allocation decisions are often protected from liability as a discretionary, governmental function.

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•RWIS does no present an immediate danger of increased litigation against the government as claims against federal agencies have often been decided in favor of the government. However, there are prohibitive steps that the National Weather Service has taken to make sure that employees retain discretion in order to better insulate itself against litigation. There are also issues from state to state where sovereign immunity against DOTs can be greatly reduced; in Colorado and Massachusetts, state agencies can be held liable for dangerous road conditions, including those generate by weather.