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4.0 Where Should Positive Protection be Used?

Caltrans 2021 Design Information Bulletin (DIB) #91-02, Sections 5.0 - 9.0 provide in-depth discussion and guidance on Positive Protection required usage, typical usage, and engineering analysis.

For example, tunnel, culvert, bridge repair work zones, etc. are known to be especially hazardous with high-speed traffic moving in close proximity to employees, roadside hazards, and/or little or no means for people to escape from errant vehicles and highlight the need for Positive Protection.

High-speeds are especially hazardous.^[14][15] A December 2024 IIHS study also found during an impact with a modern taller SUVs and pickup, pedestrians (workers on foot) are at extremely high risk. When struck by a typical U.S. pickup, a highway worker has an 85% likelihood of severe injury at just 33 mph and an 85% likelihood of dying at just 45 mph. ^[16]

“As crash speed increases from 15 mph to 35 mph, the risk of a serious injury [for a pedestrian] goes from 9% to 52% when a median-height car is involved. With a median pickup, the risk [of a serious injury for a pedestrian] shoots up from 11% to 91% [as crash speed increases from 15 mph to 35 mph]... The findings point to the need for policymakers and traffic engineers to account for the makeup of the U.S. fleet. A commonly used benchmark for a 'safe' crash speed is one at which the risk of serious injury is 10% or less.”

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5.0 Why Proactively use Positive Protection?

"...safety, health, and well-being are inherent rights of every worker."

5.1 Safe System Approach

5.2 Why Death/Serious Injury is Unacceptable

"There must be considerable ethical blindness when loss of life is somehow considered an acceptable risk... Ultimately, the deciders, those who are taking the risk of other people's lives in their own hands, have the responsibility of not risking other people's lives. It is as simple as this. There is no such thing as an ethical choice to risk another person’s life...when it is not necessary. If managers do so on account of cost-saving, they are making unethical choices... When we do take steps that minimize risk, we should not consider these steps to be 'managing' risk, but rather as steps that reduce the consequences of risk."

In a 2011 Caltrans incident which resulted in serious injury, a jury essentially found that the engineers' choices took unacceptable risk with other peoples lives (e.g. the choice was made to reject a lane closure, the choice was made to deny the work crew Positive Protection, the choice was made to order the removal of a large vehicle the crew had parked for its own protection, the choice was made to proceed with work in trenches with no means of escape for workers). Those choices resulted in a tragic and preventable incident which left one worker paralyzed for life and unable to speak.

The incident and engineers' choices attracted statewide news coverage, numerous questions, and concern for the safety of people constructing and maintaining California's roads. In July 2019, Caltrans paid a settlement amount of $37.3 million to the injured worker. Three months after the $37.3 million settlement, the California State Legislature initiated major safety reforms in a landmark bill (AB-759) which enacted CA SHC § 92.1 requiring Positive Protection.

"There’s no ‘pretty close’ when it comes to safety on the job. Almost safe means something needs to be corrected immediately before someone gets hurt or killed."

5.3 California Laws Require Positive Protection

"To protect and safeguard the health, safety, welfare, and property of the public, every person who is licensed by the Board as a professional engineer...shall provide professional services for a project in a manner that is consistent with the laws, codes, ordinances, rules, and regulations applicable to that project."

• In October 2019, the CA Legislature enacted CA SHC § 92.1 in a landmark bill (AB-759). ^[7]

  "The Legislature finds and declares both of the following:

  1. People who construct and maintain California’s roads and transportation infrastructure deserve a safe working environment and to be protected from preventable injury and death. Therefore, protecting construction and maintenance workers is a high priority.
  2. Requiring the Department of Transportation to specify the appropriate use of positive protection measures, as described in subdivision (a) of Section 92.1 of the Streets and Highways Code, and to provide compensation for optional safety devices when requested by a contractor on a public works project will greatly reduce preventable injuries and deaths to construction and maintenance workers and drivers."

• In October 2023, the CA Legislature further strengthened work zone safety and CA SHC § 92.1 by requiring Caltrans to use Positive Protection, as defined, in specified conditions, in order to ensure worker safety in another landmark bill (AB-752). ^{[8] [9]}

  "[P]ositive protection measures ensures that no worker should pay the ultimate price for a job. We have witnessed far too many workplace accidents that could have been prevented with these common-sense safety measures in place..."

  California Legislature’s Committee on Transportation found that “According to the Bureau of Labor Statistics, California employs the third highest highway maintenance workforce in the country, at 7,940 jobs… Construction workers engaged in work along roadways and highways face risks not found at traditional jobsites. These are risks inherent to being exposed to vehicular traffic…A physical barrier provides one of the best possible protection solutions for workers exposed to the flow of traffic. [Use of Positive Protection] is a common-sense and cost-effective way for safety reform that will prevent death and injuries of workers on roads and highways.”