|Legal Opinion: |
Text of Document: November 3, 2010
You have the following question: Is a “No U-Turn Sign” a prerequisite to a “No U-Turn” prohibition in the Municipal Code or ordinance?
I have struggled over this question and cannot find an answer that satisfies me. The reasons I cannot answer it are that I do not know where the offense at issue occurred, and it may have occurred someplace where a No U-Turn sign is not required; I do not know whether there is a general absence of No U-Turns signs in the city even though the Municipal Code simply prohibits U-turns in the city; several statutes are implicated in that question and I am not sure which ones would prevail; there are few cases on the question of whether the Manual on Uniform Traffic Control Devices (MUTCD) applies to traffic offenses, and those relate to inadequate signs rather than the absence of signs.
The most recent Municipal Code, which was prepared by a private attorney, was adopted by the city in August, 2000. Section 15-404 of that code simply provides that U-turns are prohibited. In addition, Section 5-108 of that code adopts the “latest revision” of MUTCD, but provides that “This section shall not be construed as being mandatory but is merely directive.”
Little is said in the state law about U-Turns. Tennessee Code Annotated, § 55-8-141 makes it a Class C misdemeanor for a vehicle to be turned:
so as to proceed in the opposite direction upon any curve, or upon the approach to or near the crest of a grade, where the vehicle cannot be seen by the driver of any other vehicle approaching from either direction within five hundred feet (500').
Tennessee Code Annotated, § 54-16-108(a)(2) provides with respect to controlled access highways that it is unlawful for any person to, “Make a left turn or a semicircular or U-Turn except through an opening provided for that purpose in the dividing curb section, separation or line.”
Those two provisions are, as far as I can determine the only statutory prohibitions on U-turns. It seems to me that in at least those two situations a No U-Turn sign is not necessary to support a charge of violating those two statutes. But two other state statutes also speak, directly or indirectly, about the necessity for traffic signs to support a traffic violation. The first one is Tennessee Code Annotated, § 55-8-109, which provides for general compliance by drivers of “any official traffic control device,” and further provides that:
(b)(1) No provisions of this chapter for which signs are required shall be enforced against an alleged violation if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person.
(2) Whenever a particular section does not state that signs are required, that section shall be effective even though no signs are erected or in place.
Violations of this statute are Class C misdemeanors.
The second statute is Tennessee Code Annotated, § 54-5-108, which provides that the Department of Transportation has the power and duty to formulate and adopt a manual for the location of signs, signals, markings, or postings of traffic regulations on or along all streets and highways in Tennessee,
and no signs, signals, markings or postings of traffic regulations shall be located on any street or highway in Tennessee regardless of the type or class of the governmental agency having jurisdiction thereof except in conformity with the provisions contained in such manual.
In language tracking that statute, the Tennessee Department of Transportation in Tenn. Comp,. R & Reg. 1680-3-1-.01 rule applies the current MUTCD to “all the streets and highways in the State of Tennessee,” and in Tenn. Comp. R & Regs. 1680-3-1-.02, it adopts the 2003 Edition of the MUTCD. Tenn. Comp. R. & Regs. 1680-3-1-.03 provides that:
It is the intent of the Tennessee Department of Transportation to amend these rules as necessary to adopt future revisions of the MUTCD as may be hereafter approved by the U.S. Department of Transportation, Federal Highway Administration.
The Tennessee Department of Transportation has adopted the 2003 MUTCD. But it also appears to me that what I say throughout this letter also applies to the 2009 MUTCD.
With respect to the question of whether the MUTCD is mandatory, that manual itself differentiates between “Standards,” “Guidance” and “Options,” in the application of the MUTCD, as follows:
Standard: When used in this Manual, the text headings shall be defined as follows:
1. Standard–a statement of required, mandatory, or specifically prohibited practice regarding a traffic control device. All standards are labeled, and the text appears in bold type. The verb shall is typically used. Standards are sometimes modified by options.
2. Guidance-a statement of recommended, but not mandatory, practice, with deviation allowed if engineering judgement or engineering study indicates the deviation to be appropriate. All Guidance statements are labeled, and the text appears in unbold type. The verb should is typically used. Guidance statements are sometimes modified by Options.
3. Option–a statement or practice that is permissive and that carries no requirement or recommendation. Options may contain allowable modifications to a Standard of Guidance. All Option statements are labeled, and the text appears in unbold. The verb may is typically used.
4. Support–an information statement that does not convey any degree of mandate, recommendation, authorization, prohibition, or enforceable condition. Support statements are labeled, and the text appears in unbold type. The verbs shall, should and may are not used in Support Statements. [See 2003 MUTCD, pp. 1-2 and 1-3.]
Thus, it seems clear that Section 5-108 of the Municipal Code, which makes MUTCD advisory, cannot be supported by the state law. Tennessee Code Annotated, § 54-5-109, provides that manual applies to all the streets and highways of the state, with respect to regulatory traffic signs and signals, but that manual itself makes only the “Standards” mandatorily applicable to such signs and signals.
It is clear that No U-Turn signs are among the signs classified in § 2B-19 of MUTCD as “Turn Prohibition Signs (R3-1 Through R3-4, and R-3-18). Specifically, the No U-Turn Sign is Sign R3-4. The Standard for the R3-4 sign (and the R3-1 through R3-4 and R3-18 signs) under Section 2B.19 is: “Except as noted in the Option, where turns are prohibited, Turn Prohibition signs shall be installed.” The OPTION in Section 2B-19 relates to the placement of No U-Turn signs where traffic signals are present.
Unfortunately, our inquiry does not end there. The question of whether MUTCD applies to the application of the traffic law of the state in the traffic violation context is still not clear. Nearly all of the cases in the United States involving MUTCD involve governmental tort liability issues, not the issue of whether persons charged with traffic violations of one kind or another have a defense that signs, signals or markings implicated in the traffic violations at issue do not meet the standards prescribed by MUTCD. The few cases that involve the application of MUTCD in traffic violation cases deal with the question of whether the traffic signal or sign at issue conformed to the standards of MUTCD, not whether the sign or signal required by MUTCD was absent.
One of the few of the latter cases is the recent unreported Tennessee case of City of Murfreesboro v. Hooper, 2007 WL 2339853 (Tenn. Ct. App. 2007) (which was appealed to the United States Supreme Court, where that appeal was denied). There Hooper challenged a speeding ticket he got from the City of Murfreesboro on the ground that the ticket was invalid because the city had not reevaluated speed limits as he claimed MUTCD required the city to do periodically.
The Court rejected his challenge in language which may give us some guidance on the effect of MUTCD in traffic violation cases. The Court, citing Begley v State, 162 S.W.2d 535 (Tenn. Ct. App. 2005) and Atkins v. State, 2004 WL 787166 (Tenn. Ct. App.), declared that the State of Tennessee had adopted MUTCD. But the Court held that Hooper’s claim that the speed limit had not been reevaluated since 1990 had no merit, because the language in MUTCD calling for the reevaluation was not mandatory, pointing out in Footnote 2 that:
As the trial court noted, the regulations in the MUTCD are set out under three subheadings, which are called “standards,” “guidance,” and “options.” The trial court also correctly noted that the applicable provisions in this case falls under the heading of guidance. [At 2]
The Court also declared that:
... MUTCD was adopted by Tennessee as a “manual for the design and location of signs, signals, markings, and for posting of traffic regulations on or along all streets and highways in Tennessee ....; it regulates the use of signs, signals and other devices, not the setting of speed limits.... [At 3].
Taken together, that language suggests that the signs required by MUTCD may be mandatory to support traffic violations cases, but that case cannot necessarily be read for that conclusion. A reason the Court gave for refusing to hold that the periodic review of the speed limits was not required to support the speed limit was that such a ruling would void all the speed limits signs in the city. A similar ruling with respect to the No U-Turn signs (or perhaps lack of them in your city’s case) would render the city without a No U-Turn prohibition.
In City of Wichita v. Rice, 889 P.2d 789 (Kan. App. 1995), the defendant was convicted of running a red light. He argued that the light was obscured in violation of MUTCD. In upholding his conviction, the Court pointed to § 11.20.30 of the Wichita Code which provided that all traffic control devices were required to conform to the MUTCD, and declared that:
The Manual provides that an effective traffic control device should command attention, give adequate time for proper response, be kept in proper position, and be clean and legible. The manual provides that care should be taken that weeds, trees and shrubbery do not obscure the face of the sign. [At 792]
The Court also pointed to § 11.20.030 of the City Code, which provided that provisions of the traffic control ordinance “for which official traffic control devices are required to be enforced against an alleged violation if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person” (which is virtually identical to the provision in Tennessee Code Annotated, § 55-8-109).
The defendant might have had a case if he had been able to show that the light was not visible, declared the Court. But in this case, the driver of the car the defendant struck testified that it was sufficiently visible to have been seen, and that evidence was uncontroverted.
It is difficult to distinguish between a sign or signal that is not visible and one that is simply absent; in neither case does a sign give motorists direction. But Tennessee Code Annotated, § 55-8-109 (b)(2) says that if no sign is required by certain provisions of the traffic laws of the state, one need not be certain one need not be in place to support the traffic violation charge at issue.
But the case of City of St. Paul v. Lofthouse, 146 N.W.2d 858 (Minn. 1966) held that a charge of violating a No U-Turn ordinance was required to be supported by a No U-Turn sign, the Court reasoning that:
Where a traffic restrict is not universally known or observed as in effect at a given place it is no more than reasonable to expect that the public should be adequately informed of the restriction before penal sanctions apply... [At 861]
However, the same Court in State v. Johnson, 183 N.W.2d 541 (Minn. 1971), held that a statute prohibiting the use of snowmobiles on the shoulders of highways except in two places, did not require a sign to support the prohibition. The Court distinguished Lofthouse, above, reasoning that an ordinance in that case also provided that penal prohibition should not be enforced in the absence of signs, markings or other devices. In this case, said the Court, the statute at issue “expressly prohibits the operation of a snowmobile on the shoulders of trunk highways and has not the conditional aspect on which the court based its opinion in Lofthouse.” [At 544]
The City’s prohibition on U-Turns in Section 15-404 of its municipal code likewise has no conditional aspect.
However, the conviction of a driver who made a right turn on a red light during hours such turn were not allowed was overturned in City of Lynnhurst v. Mcginess, 741 NJ.E.2d 976 (Ohio. App. 2000), where the sign indicating the hours turns were prohibited did not conform to the MUTCD. The Court declared that there could be no criminal liability for violation of a traffic control device that did not conform to that Manual. The City of Lynnhurst Court pointed to the earlier case of City of Maple Heights v. Smith, 22 N.E.2d 607 (Ohio App.3d. 1999), from the same appellate district, in which it was held that, “there is no criminal liability for violation of a traffic control device that is unofficial and not in conformity with the manual.” [At 979]
The facts in City of Maple Heights and City of Lynnhurst appear the same. However it may be that the Ohio statutes under which Ohio’s MUTCD was adopted are stricter than are similar statutes in Tennessee. The City of Lynnhurst Court acknowledges that there is a split among Ohio districts on the question of whether traffic signals must conform to the Ohio MUTCD before they are enforceable.
In the unpublished Wisconsin case of County of Green Lake v. Mertz, 699 N.W.2d254, 2005 WL 1231890 (Wis. App.), the Court held that a speed limit sign that was slightly smaller than the size required by MUTCD rendered a charge of violating the speed limit void, the Court declaring that the sign size was a Standard, which under that manual was mandatory.
Considering the Tennessee statutes and cases above, and cases from other jurisdictions, I am not sure whether the Tennessee courts would apply MUTCD to allow defendants charged with traffic violations to defend against those violations based on the absence of signs that appear to be required by MUTCD. That question awaits a clear answer in Tennessee.
Sidney D. Hemsley
Senior Law Consultant