Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation (2016) / Chapter Skim
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Pages 25-60
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A-3 Defendant denies that there have been numerous accidents on the eastbound Meteor Crater exit ramp involving vehicles going off the paved surface of the roadway. There are some accidents on all freeways and all exit ramps of all freeways involving vehicles leaving the roadway no matter how carefully the roadway is constructed.
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A-4 upon this data compilation, Arizona received appropriations rates of approximately $30 million in the last five years for highway safety improvements.
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A-5 materials actually created by the agency responsible for seeking the federal funding. The United States proposed a third interpretation: 409 protects all reports on the surveys, schedules, lists or data actually compiled or collected for Section 152 purpose but does not protect information that was originally compiled or collected for purpose unrelated to 152 and is currently held by the agency that compiled or collected it, even if the information was at some point "collected" by another agency for federal funding purposes.
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A-6 IN THE DISTRICT COURT OF HOWARD COUNTY, NEBRASKA Yvonne Rowland v. Brief in Support of Nebraska's Motion for Protective Order State of Nebraska Plaintiffs have served a Request for Production seeking "[c]
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A-7 Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data. It is important to note that § 409 is written in the disjunctive.
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A-8 Cooperative Highway Research Program Legal Research Digest, (April, 1995) , describes the purpose and rationale behind 23 U.S.C.
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A-9 became reluctant to gather the extensive array of self-critical material that HSIP required. 33 NCHRP Legal Research Digest, 14–15.
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A-10 but rather to effectuate congressional intent. Coniker, 695 N.Y.S.2d at 805.
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A-11 III. Prong Two of § 409 -- Eligibility for Federal Safety Funding ln prong two of § 409 (hereafter referred to as the "federal funding prong")
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A-12 are consistent with the plain language of the statute and the Congressional intent. The Guillen case began as an action under the State of Washington's Public Disclosure Act (PDA)
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A-13 Conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the correction of such locations, sections, and elements, and establish and implement a schedule of projects for their improvement. Not long after the adoption of the Hazard Elimination Program, the Secretary of Transportation reported to Congress that the States objected to the absence of any confidentiality with respect to their compliance measures under § 152.
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A-14 highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a locations mentioned or addressed in such reports, surveys, schedules, lists, or data. (citation omitted)
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A-15 Responding to these developments, Congress amended § 409 in two ways. In 1991, Congress expressly made the statute applicable to pretrial discovery, see Intermodal Surface Transportation Efficiency Act of 1991, § 1035 (a)
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A-16 V The Documents the Defendant Seeks to Protect are Within the Purview of 23 U.S.C.
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A-17 compiled pursuant to Nebraska's HSIP. (Exhibit 1, Affidavit of Randy Peters, 6; Exhibit 2, Affidavit of Bob Grant, 5, 6)
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A-18 IN THE DISTRICT COURT OF HOWARD COUNTY, NEBRASKA YVONNE ROWLAND V STATE OF NEBRASKA STATE OF NEBRASKA, COUNTY OF LANCASTER The Affiant, Bob Grant, being the first duly sworn, deposes and states as follows: I .
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A-19 2. A significant part of the data collected and compiled by the Highway Safety Section are all State of Nebraska Investigator's Motor Vehicle Accident Reports ("accident reports")
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A-20 that is sufficient to match it up with other reports from the same accident. The Indexers review the highway, accident and injury codes from the accident report forms.
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A-21 5. I have reviewed an Accident Study for the period of January 1, 1990 through January 31, 2000, completed by the Highway Safety Division at the request of the Attorney General's Office.
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A-22 STATE OF SOUTH CAROLINA COUNTY OF HAMPTON Lester L Igou, Plaintiff, CSX Transportation, Inc., Charles Allen Cribbs, and American Marine Transport, Inc., Defendants, Of whom American Marine Transport, Inc., is The Cross-Complainant v.
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A-23 This matter came before the Court on Motions by the Defendant South Carolina Department of Transportation (SCDOT) and CSX Transportation, Inc.
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A-24 "review and reliance upon 'data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings pursuant to 23 U.S.C. Sections 130, 144, and 152."' Jenkins' Affidavit further states all the documents requested by the notice "constitute 'data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings pursuant to 23 U.S.C.
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A-25 crossings. Public policy requires that such programs be conducted in candor, without fear that the required documentation can be used against the state in litigation.
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A-26 §409 may not be obtained in discovery. Specifically, the statute states that material required to be collected pursuant to the applicable federal laws may not be considered ''for other purposes in any action for damages…." Id.
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A-27 State of Washington Thurston County Superior Court Michael W Gendler, Plaintiff )
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A-28 3. Beginning in 1984, I was the Collision Analysis Supervisor at the TDO, and was responsible for producing all reports that analyzed collision data.
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A-29 6. In Washington, a comprehensive collision records database was created in the late 1960s and early 1970s to comply with federal highway safety reporting requirements.
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A-30 The principal difference between the WSP collision records system and the WSDOOT system is that the WSP computer was very old (circa 1970) and was unable to sort data in response to specific queries.
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A-31 11. Beginning with collisions occurring in 2002, the WSDOT TDO has compiled and collected the data needed by WSDOT and the local jurisdictions (usually a public works or road department)
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A-32 records section scans the collision reports into WSDOT's database. The scanned report becomes the official record and the paper report is destroyed.
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A-33 further compilation and analysis, to create an accurate list of collisions that have occurred at a specific location. It is not possible for either the WSP or WSDOT to generate an accurate list of collisions at a specific location using nothing other than the raw collision report.
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A-34 FHWA treats 23 U.S.C. 409 as a grant condition with which states must abide by if they are to participate in the federal hazard elimination program.
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A-35 and ordinances, traffic safety programs, and other collision prevention programs … 21. There are currently more than 40 fields on the PTCR for a law enforcement officer to fill out, in order to access the 113 data elements imbedded in the forms.
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