Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation (2016)

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3SUMMARY OF FEDERAL LAW RESTRICTING USE OF HIGHWAY SAFETY DATA IN TORT LITIGATION By Terri Parker, Nixa, Missouri I. INTRODUCTION Transportation agencies must continuously improve the safety of their roadway systems. In advancement of that objective, a federal law known as MAP-21 (Moving Ahead for Progress in the 21st Century) was enacted in 2012. Its purpose was to “achieve a significant reduction in fatalities and serious injuries on all public roads.”1 According to the text of MAP-21, states were to develop, imple- ment, and update strategic plans to identify prob- lems on highways and then develop strategies to reduce safety problems.2 Roadway projects were to be chosen based on data such as crash experience, crash potential, and crash rates. To qualify for fund- ing, agencies were required to follow generally accepted safety management practices such as iden- tifying problems through a site analysis or system- atic approach, identifying countermeasures to address the problems, prioritizing projects for imple- mentation, and evaluating completed projects to determine their effectiveness.3 To comply with these directives, states and local agencies must compile an enormous amount of data from accident reports, engineering studies, field studies, and other resources. If this data were made available to the general public and the legal community, it could spawn millions of dollars in litigation costs for the agencies. With its enactment of 23 United States Code (U.S.C.) § 409, Congress acknowledged the need to protect that data from litigation. According to the National Safety Council, the number of traffic deaths in the United States rose 8 percent from 2014 to 2015, equating to approxi- mately 38,300 deaths on the nation’s highways in 2015.4 Although the increase in fatalities is cause for concern, in 1965 nearly 50,000 Americans died in motor vehicle accidents. Experts at that time projected the number of fatalities to increase dra- matically. “Despite efforts made by federal and state lawmakers, most states lacked sufficient safety rules, driver education, and enforcement pro- grams”5 to address driver safety matters. Few states had comprehensive highway safety programs, and most of the existing programs were “severely under- funded.”6 The 1966 Highway Safety Act7 was intended to address basic safety issues, including driver education; licensing; pedestrian performance; vehicle registration and inspection; traffic control; highway design and maintenance; accident preven- tion, investigation, and record-keeping; and emer- gency services. As part of the 1966 Act, Congress authorized funds for distribution to the states but incorporated a requirement in the law that each state implement a highway safety program by December 31, 1968, or suffer a 10 percent reduction in apportioned funds.8 The Highway Safety Act was followed by a law known as the Hazard Elimination Program, which was enacted in 1973.9 That program specifically required states to identify hazardous locations within their system. After the Hazard Elimination Program was introduced, states and local govern- ments loudly voiced concerns that their liability risks would increase when the law was imple- mented. Representatives of the agencies argued that under the new program, hazardous locations would be identified, therefore providing notice to the agency of dangerous conditions and requiring instant action to fix problem areas. Because all the locations could not be addressed immediately, mil- lions of dollars that could be spent on the highways would potentially be paid in civil damages. In 1987, Congress responded to these concerns by enacting 23 U.S.C. § 409, which protected documents that were produced as part of the Hazard Elimination Program from civil litigation. In general, the courts 5 U.S. House of Representatives, Historical Highlights, The Highway Safety Act of 1966 (Aug. 18, 1966), available at http://history.house.gov/Historical-Highlights/1951-2000/ The-Highway-Safety-Act-of-1966/. 6 Id. 7 Pub. L. No. 89-564, 80 Stat. 731 (1966). 8 Id. 9 Pub. L. No. 93-87, 87 Stat. 286, codified at 23 U.S.C. 152 (1973). 1 23 U.S.C. 148(b). 2 23 U.S.C. 148(c)(1). 3 23 U.S.C. 148(c). 4 Press Release, National Safety Council, Motor Vehicle Deaths Increase by Largest Percent in 50 Years (Feb. 17, 2016).