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Suggested Citation:"VI. CONCLUSION." National Academies of Sciences, Engineering, and Medicine. 2016. Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation. Washington, DC: The National Academies Press. doi: 10.17226/24646.
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Page 23
Page 24
Suggested Citation:"VI. CONCLUSION." National Academies of Sciences, Engineering, and Medicine. 2016. Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation. Washington, DC: The National Academies Press. doi: 10.17226/24646.
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Page 24

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23 The first is to inspect the accident reports that are on micro- film with the Tennessee Department of Safety [TDOS] in Nashville. These are not filed by locations of the accident, but merely filed in the order they are received by TDOS, and they include all accidents in the state. It would be extremely burdensome to search these records. The burden on the defendant and plaintiff would be the same in searching these records. Pursuant to TRCP [Tennessee Rules of Civil Procedure] 33.03, defendant will produce these records so that plaintiff can determine the answer to this question. The other method of determining this number would be to search the data base maintained by TDOT [Tennessee Department of Transportation] which does list the number of accidents per location. However, this information is not discoverable or admissible as evidence at trial, pursuant to 23 U.S.C. 409 as it is compiled and collected by TDOT for the purpose of identifying, evaluating, and/or planning the safety enhancement of roadways. (See Seaton v. Johnson, 898 S. W. 2d 232 (Tenn. App. 1995)). There is another way to determine the reports that the THP [Tennessee Highway Patrol] maintains at their Chattanooga office. (The reports are destroyed after three years.) Since the burden of review- ing these documents is the same for plaintiff and defendant, the defendant will produce these documents. The government can employ several different types of objections based on § 409 in discovery. These are simply a few of the typical responses that can be found. Counsel is encouraged to review these objec- tions and based on the particular need of the case, devise an appropriate response. Public Records Requests. Most agencies route nonlegal public records requests through their pub- lic affairs department without the need for input by counsel; however, when a request that appears to have potential legal consequences is made, counsel is consulted. Given the appropriate set of circum- stances, counsel may have the opportunity to shape a legal defense while responding to a media request for information about an accident location. For instance, after a multivehicle, multifatality case at a signalized intersection, the agency may receive a request for the number of accidents that occurred at that location previously. Perhaps there were a large number of severe accidents at the location, but it had recently been signalized and the accidents decreased in severity and number after the signal- ization. The response to the media’s question could be framed as “there were 203 accidents in the 4.5- year period before the signal was installed, and 7 in the 6 months after the signalization,” instead of “there were 210 accidents at that location in the last 5 years.” A response that explains the data in a favorable manner will shape the media’s report of the information and will make sense to the public reading the news story, rather than creating the impression that the intersection was hazardous. It is important to keep the lines of communica- tion open between the public affairs office and the counsel’s office so that opportunities to present a favorable impression in the media can be created. Other Federal Statutes. For the purposes of dis- covery responses and court pleadings, counsel may want to consider an additional citation to 23 U.S.C. § 148(h)(4) as authority for the protection of agency crash and safety data. It reads as follows: Discovery and Admission into Evidence of Certain Reports, Surveys and Information. Notwithstanding any other pro- vision of law, reports, surveys, schedules, lists, or data com- piled or collected for any purpose relating to this section, shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for any other purposes in any action for damages arising from any occurrence at a location identified or addressed in the reports, surveys, schedules, lists, or other data. Appendix. The information contained in the Appen- dix was provided by several different states in their responses to the survey. Included are sample affida- vits, motions for protective orders, and court’s orders protecting information according to federal law. VI. CONCLUSION State and local highway agencies are continually improving their transportation systems in an effort to reduce fatalities, increase overall safety of the highway system, and provide efficient methods of traveling to the public. One of the ways that these goals are accomplished is to locate and improve par- ticularly hazardous sections of roadways. Obviously, before improvements can be undertaken, the need for improvements must be established. States and local agencies must review accident data and reports in order to pinpoint the locations that can benefit the most from site improvements. Only then can upgrades and changes be implemented. In order to encourage the free flow of information among employees of the transportation agency, their partners, local agencies, and the federal govern- ment, Congress enacted 23 U.S.C. § 409. The imple- mentation of this law allowed states to seek out and fix hazardous locations without the fear of providing plaintiffs with a roadmap of the most dangerous portions of their roads. Section 409 has been interpreted by hundreds of courts, including the U.S. Supreme Court, since it was enacted in 1987. Section 409 is a valuable tool for states and local agencies to use in all phases of project implementation, from scoping to construc- tion to litigation defense.

Next: APPENDIX A A SAMPLING OF MOTIONS USED BY STATE DEPARTMENTS OF TRANSPORTATION IN SUPPORT OF THEIR REQUEST FOR THE RESTRICTION OF DATA THAT IS PROTECTED BY FEDERAL LAW »
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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 72: Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation explores the origins and provisions of 23 U.S.C. § 409, Discovery and Admission as Evidence of Certain Reports and Surveys, which prohibits the use, in tort litigation, of highway safety data created for purposes related to safety improvements on roads qualifying for federal safety improvement funding. The digest explores the amendments to the law, development of caselaw interpreting and applying the law, a 2003 Supreme Court decision, and current interpretation and application issues.

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