U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
The information provided here is not legal advice, but is meant to assist public agencies in discussions with their attorneys on developing a policy for the implementation of Road Safety Audits.
Some State and local agencies have been hesitant to conduct RSAs due to a fear that RSA reports will be used against them in tort liability lawsuits, which are lawsuits in which a plaintiff may sue for compensation for an injury resulting from a design or engineering flaw. In this case, such a suit would assume that RSA documents could be cited as proof that State or local agencies oversaw implementation of a road design that was not safe or that somehow contributed to an individual's injury.
"If folks keep to their mission to provide safe roads, then part of that would be having audits and checks to make sure that if we have problems, we can identify them and address them."
Senior Litigation Council
Arizona Office of the Attorney General
A survey of State Departments of Transportation was conducted as part of NCHRP Synthesis project 336, Road Safety Audits. The survey asked questions about States' sovereign immunity, the doctrine that Government agencies (Federal, State, city, county) are immune to lawsuits unless they give their consent to the lawsuit. A summary of the information in the synthesis follows:
There appeared to be no specific correlation in the application of RSAs (to new projects or to existing roads) and whether or not the State had sovereign immunity. Two States implementing RSAs indicated full immunity and three indicated partial immunity. For States that use RSAs (in the design stage or on existing roads but not both), two indicated full immunity, four had partial immunity, and four had no immunity.
The same survey also received this response related to liability, "Liability is one of the major driving factors in performing a good audit; it demonstrates a proactive approach to identifying and mitigating safety concerns. When findings cannot be implemented, an exception report is developed to address liability and mitigating measures. Our attorneys say that once safety issues are identified, and we have financial limitations on how much and how fast we can correct the issues, then the audit will help us in defense of liability.
In the case of Kansas DOT, the RSA program was implemented to be proactive in identifying and fixing safety issues. They report their RSA results are for internal staff use only and are not available to the public or to lawyers representing claims against the State. There have been instances where these records were requested by outside legal counsel and to date the information has remained at KDOT.
The only instance where a RSA report was released was in a case where the State was being sued but the claim did not ask for any money. [Public disclosure laws require release of this information in many States. However, some States do not allow information gathered under public disclosure laws to be used in lawsuits.]
The Iowa DOT has had no instances of RSA records being requested or used in court by outside legal counsel. In both cases above, these States have successfully implemented RSA programs which significantly improve the safety along public agency roads and assist in decision making agency wide.
Federal law affords evidentiary and discovery protections that assist State and local high-way agencies in keeping data and reports compiled or collected pursuant to various Federal safety improvement programs from being used in tort liability actions. However, Federal law does not protect data and reports from Freedom of Information Act requests.
The Highway Safety Act of 1973 was enacted to improve the safety of our Nation's highways by encouraging closer Federal and State cooperation with respect to road safety improvement projects. The Act included several categorical programs to assist States in identifying highways in need of improvements and in funding these improvements, including 23 U.S.C. § 152 (Hazard Elimination Program, “Section 152”).1 States objected to the absence of any confidentiality with respect to their compliance measures under Section 152, fearing that any information collected could be used as an effort-free tool in litigation against governments.
23 U.S.C. § 409 (“Section 409”) was enacted to address this concern. This law expressly forbids the discovery or admission into evidence of reports, data, or other information compiled or collected for activities required pursuant to several Federal highway safety programs (Sections 130, and 152 (now 148)), or for the purpose of developing any high-way safety construction improvement project, which may be implemented utilizing federal aid highway funds, in tort litigation arising from occurrences at the locations addressed in such documents or data.2 In 2003, the U.S. Supreme Court upheld the Constitutionality of Section 409, indicating that it “protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes” (emphasis on original).3 Some States consider information covered by Section 409 as an exemption to its public disclosure laws, but courts may not agree with this interpretation.4
Another approach could be to use RSA reports in tort liability suits to show the courts that the State or local agency is proactively trying to improve safety.
Many litigants and their lawyers will hire an expert witness to conduct their own safety review of the location in question. The RSA report can be used to refute or counter the expert witness's report and to show the public agency's efforts at improving safety in that location. It is important to have a response to the RSA report in the file to show how the agency plans to incorporate the suggestions or why the RSA report suggestions will not be implemented.
(1) Under the Surface Transportation Act of 1978, these categorical programs were merged into the Rail Highway Crossing program (23 U.S.C. 130) and the Hazard Elimination Program (23 U.S.C. 152). To be eligible for funds under Section 152, the statute states that a State or local government must “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.” The recently enacted section 1401 of SAFETEA-LU (Pub. L. 109-59, August 10, 2005) establishes a new Highway Safety Improvement Program in 23 U.S.C. § 148, which incorporates the elements of section 152 and which will be the source of funding for the activities eligible under that section. As a result of this provision of SAFETEA-LU, 23 U.S.C. § 409, cited in the next footnote, now references section 148, not section 152. Because activities eligible under section 152 will be funded under section 148, they will continue to be protected pursuant to section 409.
(2) Section 409 in its entirety states “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 rail-way-highway crossings, pursuant to sections 130, 144, and 148  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.
(4) The New York Supreme Court recently held that 409 protects only from requests in litigation and, thus, does not create a public records exemption in New York. See Newsday v. State DOT, Supreme Court Appellate Division, Third Judicial Department (July 1, 2004).