Chapter Six - Analyzing the Legal Issues

Do not withhold good from those who deserve it, when it is in your power to act.
Proverbs 3:27

In a lawsuit, the rules of "discovery" govern the parties' access to each other's information prior to the courtroom proceedings and the rules of "evidence" govern the use of information during the trial. Both of these sets of rules are relevant here.

If a plaintiff alleges he or she was harmed on a local rural transportation entity's road and then commences to sue the entity, but the local rural transportation entity is immune, the entity can avoid liability altogether. On the other hand, if the entity is not immune and has a RSAP report concerning the area of the road where the plaintiff alleges he or she was harmed, the plaintiff will probably want access to the RSAP report to help his or her case against the entity. If the RSAP report is discoverable by the plaintiff and admissible as evidence, the entity will attempt to show that it does not establish the entity's liability. This defense approach of the entity is one that is "defensive": the entity is trying to keep the report out of the plaintiff's hands and out of evidence.

This situation raises two legal issues. First, a determination as to whether the entity is immune from liability must be made, and second, if the entity is subject to liability, an assessment of the possibilities that the report might be discovered by the plaintiff and admitted into evidence must be made. The potential countering effects that confidentiality and privileges might have on the discoverability and admissibility of the report also must be considered during the second inquiry.

Notwithstanding results of the "defensive defense" strategy, an alternative litigation defense strategy for the local rural transportation entity being sued is an "offensive defense." In that approach, the entity proudly will proffer the RSAP report and will attempt to use the report as evidence of the entity's proactive efforts toward improving the safety of its roads--proactive efforts that must not be chilled through fear of liability.

The law implied in these two litigation defense strategies is examined here with regard to the six states sampled in this study.

Issue One: Can the Entity Be Found Liable?

Local governments are creatures of the state and therefore typically have only those duties and responsibilities expressly given by the state constitution or state government. The doctrine of sovereign immunity of the local entity is no exception. Most states provide that their local governments are subject to liability only as provided by state tort claims acts or other state statutes, or by judicial activity.¹⁷⁴

Local Government Immunities

One general principle in the law is that "where there is a tortious injury there is liability."¹⁷⁵ But sovereign immunity, itself an exception to the general principle, is the rule for local governments: local immunity is allowed unless the state legislature or courts have specifically restricted it. The six sample states have dealt with the question of local immunity, and have restricted its use through either judicial activity or legislation.

History

In Arizona, the Arizona Supreme Court abolished sovereign immunity in 1963 in the case of Stone v. Arizona Highway Commission.¹⁷⁶ The court made it clear in 1967 that local immunity was abolished as well in Veach v. City of Phoenix.¹⁷⁷ Arizona's tort claims act, enacted in 1984, codified the limits of Arizona's state and local immunities and liabilities.

Louisiana's Supreme Court abolished the defense in 1973 in Board of Commissioners of Port of New Orleans v. Splendour Shipping and Enterprises, Inc.¹⁷⁸ In 1974, Louisiana adopted a new constitution which provided that "[n]either the state, a state agency, nor a political subdivision shall be immune from suit and liability,"¹⁷⁹ but has yet to enact a comprehensive tort claims act.¹⁸⁰

Michigan enacted a tort liability act (Mich. Comp. Laws Ann. §§ 691.1401 et seq.) in 1964. In Michonski v. City of Detroit,¹⁸¹ (1987), the Michigan Supreme Court construed Mich. Comp. Laws Ann. §§ 250.61 and 691.1401 as meaning that neither the state of Michigan nor its counties or cities are immune for torts arising out of their defective highways.

In 1970, the New Jersey legislature enacted the New Jersey Tort Claims Act (N.J. Stat. Ann. 59:1-1, et seq.) in response to the New Jersey Supreme Court's decisions in P., T. & L. Const. Co. v. Commissioner, Dept. of Transp.¹⁸² and Willis v. Department of Conservation and Economic Development,¹⁸³ where the court abolished the state's immunity in contract claims and tort claims, respectively.¹⁸⁴

North Carolina has a tort claims act that it is applicable only to North Carolina's state government.¹⁸⁵ However, the North Carolina Supreme Court repeatedly has held that North Carolina municipalities retain immunity unless the state legislature abolishes it.¹⁸⁶

In 1978, the Wyoming Supreme Court abolished the defense for local governments in Oroz v. Board of County Commissioners of the Board of the County of Carbon.¹⁸⁷ In response to Oroz, in 1979 the Wyoming legislature enacted the Wyoming Governmental Claims Act (Wyo. Stat. Ann. §§ 1-39-101 et seq.).

Table 3 summarizes the source of the local government immunities in the six sample states.

Table 3. Sources of local government immunities in the sample states

The acts and judicial history of the six states provide the extent of the governments' liability and immunity. Whatever their impetus, the following principles regarding local rural transportation entity immunity emerge from the judicial opinions, tort claims acts, and statutes of the six sample states.

Common Themes

Of the six sample states, four (Arizona, Michigan, New Jersey, and Wyoming) have a tort claims act (TCA) that deals specifically with immunity of the local government. Louisiana has no tort claims act, but has statutes with provisions similar to the TCAs of the other states. North Carolina has a TCA, but it is only applicable to North Carolina's state government.¹⁸⁸

Aside from North Carolina's state-only TCA, generally the TCA and statutory requirements apply to the local government and the state government.¹⁸⁹ The general rule is that the local government retains immunity but will be subject to liability pursuant only to expressly codified activities.¹⁹⁰ Exceptions to this general rule of immunity include distinctions based on the character of the entity's activity at issue and limitations to the entity's liability. These exceptions are discussed in the sections that follow.

Modifying the Extent of Immunity

Some of the sample states modify extent of the local rural transportation entity's immunity based on whether the entity carries liability insurance or based on a dollar amount. The general rule in the question of the effect of a local government's procurement of liability or indemnity insurance is that the procurement "has no effect upon its immunity from tort liability."¹⁹¹ But other states hold "that where a governmental unit procures insurance, its immunity from tort liability is removed to the extent of the coverage of the insurance."¹⁹²

New Jersey endorses the majority view. In Hughes v. Burlington County, a county that was sued for injuries arising out of a traffic accident was held not to have waived its immunity solely because it had procured liability insurance.¹⁹³

Michigan,¹⁹⁴ North Carolina, and Wyoming fall into the minority rule so that in their states, a local government's procurement of liability insurance waives the entity's immunity to the extent of the liability coverage. North Carolina and Wyoming have statutes in their tort claims acts that authorize local government to waive its immunity by procuring insurance.

North Carolina statute § 160A-485 provides that a "city is authorized to waive its immunity from civil liability in tort by the act of purchasing liability insurance," and that"[i]mmunity shall be waived only to the extent that the city is indemnified by the insurance contract from tort liability."¹⁹⁵ For instance, in Davis v. Town of Southern Pines, the town was found not to be immune from liability for the torts of its police officers.¹⁹⁶

In Wyoming, a government's procurement of "liability insurance coverage shall extend the governmental entity's liability" to liabilities not under Wyoming's tort claims act or under a federal law.¹⁹⁷ In Helm v. Board of County Commissioners, Teton County, Wyo., the Teton Board of County Commissioners avoided liability because the plaintiff's claim that the county performed a negligent home inspection failed to fall within the scope of the county's insurance coverage, which would have operated to waive the county's immunity.¹⁹⁸ Wyoming's statute also limits extent of the local government's liability to certain dollar amounts. Wyoming statute § 1-39-118(a) says that except as modified by the entity's liability insurance, the entity's liability shall not exceed $250,000 per person for claims arising from a single transaction or occurrence or $500,000 for all persons for claims arising out of a single transaction or occurrence.¹⁹⁹

Table 4 summarizes the sampled states' views on the effect on sovereign immunity that the local rural transportation entity's procurement of liability insurance has on the entity's immunity.

Table 4. Effect of procurement of liability insurance on immunity in the sample states

Sources of Liability

To establish the entity's liability, the plaintiff must show that the entity was negligent. Negligence is the defendant's breach of a duty of care to the plaintiff which caused harm to the plaintiff. Simply put, negligence "is the failure to exercise the reasonable care that a prudent person would use under similar circumstances."²⁰⁰ The plaintiff will try to establish the local rural transportation entity's liability by showing the entity breached a duty it owed to the plaintiff.

Duties

As stewards of the Nation's highway systems, transportation entities are entrusted with the responsibility or duty to the public to provide a medium for the safe transportation of goods and people. This type of duty entails things such as care and notice.

Researcher Derrick describes two levels of duties of care: the "general-duty special-duty doctrine which provides in essence that a governmental entity is not liable for torts committed against a citizen unless a special or particular duty is owed to the injured citizen." Under this doctrine, the agency "is not liable for injury to a citizen where liability is alleged on the ground that the governmental entity owes a duty to the public in general, as in the case of police or fire protection," but "when a citizen becomes singled out from the general population and a special duty is owed him by the governmental entity....the breach of that duty may result in liability for the damages suffered by the citizen."²⁰¹

Standard of Care.

Transportation researcher Glennon provides a description of the duty owed by transportation entities: "[t]he basic standard of care for roadway agencies is reasonable safety for all motorists."²⁰² Research by Pearson adds that the transportation entity has a "duty to exercise reasonable diligence to maintain its streets and highways in a reasonably safe condition for the uses for which they were established."²⁰³ Exactly what "reasonable safety" is, though, is not easily defined. "Reasonable" means different things to different people and many factors "limit one's ability to act."²⁰⁴ The definition of "reasonable" can thus vary state to state.

Research by Lewis provides several factors that courts have considered in determining the reasonableness of a transportation entity's action "[w]hen a potentially hazardous condition exists...[and] resources are not available to correct all such conditions."²⁰⁵ Lewis' factors: (1) the "gravity of harm posed by the condition," (2) the "likelihood of harm," (3) the "availability of a method to correct the situation," (4) the "usefulness of the condition for other purposes," and (5) the "burden of removing the condition."²⁰⁶

Arizona's standard of care is found in Arizona Statute § 12-820.03: "Neither a public entity or a public employee is liable for an injury arising out of a plan or design...if the plan or design is prepared in conformance with generally accepted engineering or design standards."²⁰⁷

The State of Louisiana "is bound to exercise due, ordinary, or reasonable care under the circumstances."²⁰⁸ Because the "Parish is not the guarantor of safety on its roads, the simple fact that an accident occurred does not mean that condition presents an unreasonable risk of harm or is unreasonably dangerous....not every minor imperfection, irregularity, or bump in the road constitutes an unreasonably dangerous condition."²⁰⁹

A governmental entity in Michigan has a duty to "maintain the highway in reasonable repair."²¹⁰ Furthermore, a Michigan "county shall keep in reasonable repair...all county roads, bridges, and culverts that are within the county's jurisdiction, are under its care and control, and are open to public travel,"²¹¹ but this duty "extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel."²¹² According to the Michigan Supreme Court in Nawrocki v. Macomb County Road Commission, the duty of the state and county transportation entities is limited by "the location of the alleged dangerous or defective condition; if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable and liability does not attach."²¹³

A North Carolina statute prescribes that North Carolina cities have "[t]he duty to keep the public streets, sidewalks, alleys, and bridges in proper repair [and] free from unnecessary obstructions."²¹⁴

In 1992, the Wyoming Supreme Court rejected an argument that the board of commissioners owed to the plaintiffs a duty of care in supervising a weed and pest control board that allegedly sprayed herbicide in a way that polluted the plaintiffs' water supply.²¹⁵ Whether this is an appropriate analogy in Wyoming has yet to be seen as no Wyoming case law on duty of care was found.

Table 5 summarizes the various tests for the standard of care to which the local rural transportation entity is held in the sample states.

Table 5. Standards of care for the local rural transportation entity in the sample states

Duty to Warn.

Transportation entities have a duty to the road user to provide notice of adverse road conditions. To be sure, "it is the duty of the responsible public authority to maintain warning signs when reasonably necessary to enable travelers exercising ordinary care and prudence to avoid injury."²¹⁶ For instance, the familiar "Slippery When Wet" sign, when combined "with an advisory speed [limit sign] could be used to alert motorists of the [potentially wet] condition."²¹⁷ And "a governmental authority has a duty to provide warnings or markings at particular highway curves where the government knew of the dangerous condition of the curve."²¹⁸ Although a transportation entity can be found liable solely for "failing to properly warn motorists of the dangerous situation,"²¹⁹ an entity's failure to warn of an otherwise inactionable situation also may create liability for the transportation entity.²²⁰

An Arizona governmental entity has a duty to provide a "reasonably adequate warning...as to any unreasonably dangerous hazards which would allow the public to take suitable precautions."²²¹

Louisiana Statute § 32:235 provides that Louisiana "municipal and parish authorities...shall place and maintain...traffic control devices upon highways under their jurisdiction as they may deem necessary."²²² This statute has been interpreted to impose upon Louisiana parishes a duty to warn motorists of hazardous conditions.²²³

In Michigan, the statutory duty of the local rural transportation entity is to "maintain the highway in reasonable repair."²²⁴ The Michigan Supreme Court extended this duty so that once a traffic sign is erected, it "becomes an integral part of the physical structure of the highway, and thus the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs."²²⁵ Although in Michigan "a claim of a duty to warn is a separate and distinct theory of liability from a statutory duty to maintain and repair under the highway exception to governmental immunity,"²²⁶ in Salvati v. Department of State Highways the Michigan Supreme Court nevertheless noted that a governmental entity "may incur liability under the broad concept of 'traffic sign maintenance'...for failing to erect any sign or warning device at a point of hazard."²²⁷

In New Jersey, governmental entities have a duty to warn for emergency situations,²²⁸ but not for ordinary conditions²²⁹ or weather conditions.²³⁰ In deciding question of the difference between "emergency" and "ordinary," the New Jersey court looked at the legislature's intent and Webster's Third New International Dictionary to say that "a public entity would be liable for its failure to respond to an emergent situation that held a high degree of risk for the public."²³¹ Thus in Aebi v. Monmouth County Highway Department, the New Jersey Supreme Court held that the county was immune from liability where the plaintiff alleged the county had a duty to warn of a narrow bridge that was not held to impose a high degree of risk.²³²

Duty to Maintain.

In Isbell v. Maricopa County, the Arizona Supreme Court upheld a jury's finding that the county had breached "its duty to maintain safe roadways" where the county failed "to follow up on its request for improvements or...to reduce the speed limit when the improvements were not completed."²³³

In Michigan, the local rural transportation entity "shall maintain the highway in reasonable repair."²³⁴ "Once a signal or sign is installed, it must be maintained in a functional condition."²³⁵ But this statutory duty has been construed to apply to maintenance of only those conditions that affect the safety of motorists using the improved portion of the highway designed for vehic ular travel.²³⁶ Also, the duty to maintain imparts no duty to "improve or enhance existing highways."²³⁷ Furthermore, in Bernier v. Board of County Road Commissioners for Ionia County, the court said that the county "should be permitted to introduce evidence that it lacked sufficient funds" to maintain and repair an intersection and was therefore forced to use its discretion in applying funds.²³⁸

In New Jersey, the local rural transportation entity generally has immunity for discretionary decisions.²³⁹ However, in Costa v. Josey, the New Jersey Supreme Court said that while the decision to maintain might be discretionary and therefore protected, "[o]nce the decision to maintain was made, however, the tort immunity would seem to have ended."²⁴⁰ In that particular case, pavement resurfacing under the state's resurfacing program reduced the height of the barrier dividing the traffic, and the court refused to allow the New Jersey Department of Transportation to have immunity from liability for the death of two motorists killed by a vehicle that crossed the center barrier.²⁴¹

The North Carolina Supreme Court held that North Carolina's statute "relating to streets and bridges imposes on municipalities the positive duty to maintain the streets in a reasonably safe condition for travel."²⁴²

Wyoming cases decided before the 1979 Wyoming Governmental Claims Act held that the city²⁴³ and county²⁴⁴ had a duty to maintain the road. But the tort claims act provides Wyoming local rural transportation entities with immunity from liability for "maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area."²⁴⁵ Again, in 1993, the Wyoming Supreme Court drew a distinction similar to that of the New Jersey court. In Romero v. Hoppal the Wyoming court said that immunity would not lie for maintaining the road, but only for the result of maintaining.²⁴⁶ This distinction is similar to that drawn by the New Jersey court in Costa, above.²⁴⁷

Duty to Comply With Standards.

Local rural transportation entities may be held to have a duty to comply with external and internal standards in control of their roads. To establish the standard of care, courts will consider several types of information. "One of the strongest types of information" that courts will consider is the "agency's own guidelines and policies...[which] may define in detail the minimum requirements."²⁴⁸ The reason behind this is clear: a "reasonable person would follow such rules and orders."²⁴⁹ Further, courts also consider "the commonly accepted good practices promulgated by authoritative national bodies in their standards, policies, or guidelines."²⁵⁰

For example, the Manual of Uniform Traffic Control Devices²⁵¹ is "a widely recognized authority and is the official standard in many states."²⁵² Beyond the agency's own guidelines and national guidelines, courts also will look at (1) "guidelines and policies of other agencies (to determine the state of the art)," (2) "guides developed by national and professional organizations (such as, American Association of State Highway and Transportation Officials, Institute of Transportation Engineers, and National Association of County Engineers)," (3) "engineering texts and manuals," (4) "professional journals," (5) "research publications," and (5) "opinions of expert witnesses."²⁵³

An Arizona corporation also may be held to the standard of its internal standards. For example, in a case involving a train crash in which the defendant railroad company requested access to the investigative report and safety standards of the employer whose plaintiff employees were injured in the crash, the Arizona Supreme Court recognized the relevance that such documents have in litigation.²⁵⁴ Although the court protected employees' individual safety records, the court did allow the railroad access to the employer's internal safety standards.²⁵⁵

Arizona Statute § 28-642(A) requires the state director to "place and maintain traffic control devices that conform to [Arizona's] manual and specifications...on all state highways as the director deems necessary."²⁵⁶ This duty is imputed to the local authority when the local authority is placing or maintaining "traffic control device under the jurisdiction of the director."²⁵⁷ Louisiana has similar provisions.²⁵⁸

The Michigan Supreme Court held in Salvati v. Department of State Highways that a local rural transportation entity "may incur liability for positioning an improper system of signs on the roadway...or for placing a sign which inadequately informs approaching motorists of a hazard."²⁵⁹ The court stated that "compliance with standard manual specifications" will not "absolve the highway authority from liability," but rather "compliance with traffic manual standards is a factor to consider in determining the reasonableness of the state's actions at the time of the accident."²⁶⁰ In a 1995 case in which the city of Dearborn Heights was alleged to have failed to comply with the Manual on Uniform Traffic Control Devices (MUTCD)--which the city had apparently adopted--the court noted that under Salvati, evidence of the city's lack of compliance with the MUTCD would likely be admissible.²⁶¹ However, the court did not have to consider the city's apparent lack of compliance because the plaintiff "failed to submit evidence of such a lack of compliance."²⁶²

New Jersey statute § 59:4-6 provides that a local rural transportation entity is not liable "for an injury caused by the plan or design of public property...where such plan or design is prepared in conformity with standards previously [approved by the Legislature, other governing body, or some other body or public employee exercising discretionary authority]."²⁶³ In the 1984 case of Kolitch v. Lindedahl, the New Jersey Supreme Court was faced with the question of whether to extend immunity to the state DOT for a wrongful death action that arose from a 1978 head-on collision in a vertical sag curve with a design speed of 30 miles per hour, but which was posted at 50 miles per hour.²⁶⁴ The court held that the DOT was immune "for the condition of the roadway even though dangerous at 50 miles per hour" because the design was approved in 1925, but remanded back to the trial court for a determination of whether the DOT would be found liable under § 59:4-2(b) for having failed to "protect against the dangerous condition"²⁶⁵ of posting a 50 miles per hour speed limit sign 200 feet before the curve.²⁶⁶

In 1990, the North Carolina Supreme Court held that the MUTCD is not "a national standard which cities must follow with respect to installation of protected left turn signals."²⁶⁷ Nevertheless, the court held that a city, which had complied with all requirements of the state's MUTCD, was not liable for failing to install a protected left turn signal.²⁶⁸

Wyoming Statute § 31-5-112 requires that the most recent edition of the MUTCD is the standard for highways in the State of Wyoming.²⁶⁹ In Fanning v. The City of Laramie , the Wyoming Supreme Court held against the city where the deceased died at an intersection with a stop sign that the city had erected, but which had become obscured by foliage.²⁷⁰ The court reasoned that "[t]he city having elected to establish the through street and having erected the required stop sign was obligated [through the MUTCD] to maintain its visibility and to exercise specia l care that shrubbery, i.e., trees, was not allowed to obscure the sign."²⁷¹ But in the 1985 case of Randolph v. Gilpatrick Construction Company, Inc., the Court said that in a construction zone, where "the signs and the detour were in substantial compliance with the [MUTCD]," neither the state nor the contractor who had installed the signs was liable for a death in the detour.²⁷² The court relied on the language of § 31-5-112 which "only requires compliance with the manual 'so far as possible'; strict compliance is not mandated."²⁷³

Table 6 summarizes views of the sample states regarding various duties imposed on the local rural transportation entity.

Table 6. Local rural transportation entity duties in the sample states

Notice

Fairness would dictate and indeed "[m]ost courts hold that the roadway agency must have sufficient advance notice of the defect to have had reasonable opportunity to either correct the roadway defect or to warn of its hazard."²⁷⁴ Lewis explains: "[r]easonable people would not act until they knew that there was a problem," but once so informed, "there may be an obligation to respond."²⁷⁵

The requisite advance notice period afforded a transportation entity to road defects appears on its face to be straightforward. But this notice period does have a vast gray area, and a continuum of levels of notice is helpful for understanding the notice requirement. At one end of the continuum is the situation in which the agency has "actual" notice of a defect. For example, when an agency has a written report by one of its employees that a bridge is washed out, the agency has "actual" notice of the missing bridge and is responsible for taking appropriate action. At the other end of the continuum is, of course, the situation in which the agency has no notice of a road defect. For example, when a traffic signal began malfunctioning just moments ago while no one, including agency employees, has witnessed the malfunctioning, the agency has no noticeof the defective signal and therefore no responsibilities. But if the signal has a remote feed to an agency computer, had been defective for weeks, or was overlooked in a prior routine maintenance check, the agency may have notice imputed to it. In other words, when the agency should have noticed the defect, the agency has "constructive notice" of the defect that in turn may give rise to the agency's "duty to act."²⁷⁶

It appears that although constructive notice considers time and severity factors, if an agency has constructive notice of a condition, the agency still has a duty to handle the condition appropriately and may be held liable for breaching that duty. According to research by Lewis, once an agency is informed, "there may be an obligation to respond," and if "the defect is extreme, however, such as the collapse of a bridge, the reasonable action would be to close the roadway as quickly as possible."²⁷⁷ Transportation researcher Glennon adds that "constructive notice may arise when a roadway defect has existed for such a time and is of such a nature, that the roadway agency should have discovered the defect by reasonable diligence."²⁷⁸ And according to Pearson, if a transportation entity breaches its duty "to put and keep [its roads] in a reasonably safe condition for the uses for which they were established....it will be held liable...if it had either actual or constructive notice of the unsafe condition in time to have remedied it or otherwise guarded against it."²⁷⁹

The agency's notice of a defect is critical. Because the agency's "knowledge of the existence of the defect is a matter frequently at issue in actions for injury resulting from the defec[t]," the agency "will be liable for allowing it to continue only where [the agency] has actual or constructive knowledge of its existence."²⁸⁰ For example, in the 1958 New Jersey case of Schwartau v. Miesmer, in which the plaintiff allegedly fell through a wood catch basin cover into the town's storm sewer, the court allowed a witness to testify that she had seen a town vehicle and work crew "at the site of the catch basin" to help establish the town's control of the catch basin.²⁸¹ But this type of evidence cuts both ways. An agency may be able to rely on mitigating evidence such as "that although the property in question was used by others under conditions substantially similar to those prevailing when the plaintiff was injured, there had been no previous accident at the place in question."²⁸²

To hold an Arizona local rural transportation entity "liable for damages caused by improper maintenance," the plaintiff "must show that an unreasonably dangerous condition existed and that the [entity] had actual or constructive notice of this condition."²⁸³ In Galati v. Lake Havasu City, a plaintiff's mere allegation "that the City had actual or constructive notice of any dirt or debris in the roadway," was not enough to overcome the city's photographs of the accident location and the evidence of the investigating police officer's affidavit.²⁸⁴ In other words, the plaintiff failed the burden of proof. To show that the entity knew of dirt or debris on the road required more than a mere allegation by the plaintiff to overcome the City's evidence to the contrary.

Louisiana's statute § 9:2800(B) provides that unless addressed specifically elsewhere, "no person shall have a cause of action...against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect."²⁸⁵ Section § 9:2800(C) explains that "[c]onstructive notice shall mean the existence of facts which infer actual knowledge."²⁸⁶

Actual notice in Louisiana can be imputed to the city through its employees. The City of New Orleans was held to have actual notice when a police officer who was employed by the city learned of a road defect prior to an accident.²⁸⁷ In a case where evidence showed that "city employees were periodically in the area" of an intersection at which a crash later occurred, the city was held to have had actual knowledge of the condition of the intersection.²⁸⁸

Constructive notice in Louisiana largely depends on the amount of time the condition existed prior to the accident. For instance, where cracked, sloped, and misaligned sidewalks had developed "over a lengthy period of time," the City of Tallulah was held to have had constructive notice of the condition,²⁸⁹ and where it "was aware five and one-half months" prior to the plaintiff's accident of a pothole, the City of Bogalusa was held to have had constructive notice of the existence of the pothole.²⁹⁰ But the City of New Orleans was not liable for injuries a pedestrian sustained when a cracked sidewalk on which she was walking collapsed beneath her; "the defective condition did not manifest itself until she walked across the cracked area and the sidewalk crumbled," so the city did not have actual or constructive notice of the defect in time to remedy the situation.²⁹¹

Michigan statute § 691.1403 provides that a local rural transportation entity will be immune from liability arising from a road defect unless the entity "knew, or in the exercise of reasonable diligence should have known, of the existence of the defect."²⁹² As with Louisiana, the local rural transportation entity's actual notice could be inferred when the entity's employees are aware of the defect. In Schroeder v. Department of Transportation, for example, the Michigan DOT was held not to have actual notice of a parked car into which the plaintiff crashed.²⁹³ The court held that while the city's police had actual notice of the parked vehicle, the Michigan DOT did not because the "police department was neither the agency which had jurisdiction over the highway nor an agency which had contracted to maintain that highway."²⁹⁴

As in Louisiana, in determining whether a Michigan local rural transportation entity had constructive notice of a road defect, the duration of the condition is paramount. Indeed, to establish the township's constructive notice, a plaintiff was allowed to show that the condition of the township's highway existed "for several months before the accident."²⁹⁵ Also, in an action against a township for death from an alleged defective highway, the Michigan Supreme Court held that evidence concerning other accidents occurring on the same highway prior to the accident at issue was admissible.²⁹⁶

In Meta v. Cherry Hill Township., the New Jersey Supreme Court held that the local rural transportation entity may not "ignore hazardous conditions, when actually notified of same."²⁹⁷ In that case, the court held that where the local rural transportation entity was notified several times about dangerous ice conditions, yet failed to mitigate them, they should have taken "immediate action when notified of [the] emergent condition."²⁹⁸ Elsewhere, the court adds that "prior accidents can be used to prove the existence of a dangerous condition on public property if...(1) [there is the] same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) [there is an] absence of other causes of the accident."²⁹⁹

North Carolina's statute prescribing the duties of North Carolina cities to "keep the public streets, sidewalks, alleys, and bridges in proper repair [and] free from unnecessary obstructions"³⁰⁰ has been found to imply a notice requirement. For example, in Mosseller v. City of Asheville, the city was held to have "knowledge of a defect which inspection" resulting from its "reasonable and continuing supervision over its streets" would have disclosed.³⁰¹ Furthermore, actual notice in North Carolina is not required--constructive notice is sufficient. "Notice of a dangreous [sic] condition in a street or sidewalk will be imputed to the town or city, if its officers should have discovered it."³⁰²

In Fanning v. City of Laramie , where a stop sign was obstructed by foliage, the Wyoming Supreme Court implied notice to the City of Laramie.³⁰³ The court opined that "the question of duration seems unimportant because obstruction by shrubbery does not take place overnight but occurs gradually, [eventually bringing] the claimed obstruction to the City's knowledge sufficiently in advance of the accident to have enabled it to cure the defect."³⁰⁴

Table 7 summarizes the various notice requirements imposed on the local rural transportation entity in the sample states.

Table 7. Notice requireme nts for the local rural transportation entity in the sample states

If the local rural transportation entity can be found liable for breaching a duty to the plaintiff-road user, and if the entity has an RSAP report concerning location on the road where the plaintiff was injured, the next issue is whether the RSAP report can be used against the entity that conducted the RSAP, discussed here.

Issue Two: Can the Road Safety Audit Program Report Be Used Against the Entity?

This nation clings tightly to the notions of honest communication and open government. But the nation also recognizes that certain information is protected, being too private or dangerous for public exposure. Procedural rules govern the parties' sharing of information before trial (in the discovery phase) and govern how evidence may be admitted during trial. These competing goals of accessible information and protected information are juggled by courts and legislatures when interpreting or promulgating rules of law in discovery and evidence.

Freedom of Information Acts

The admissibility of public records into evidence is subject to the tension between protecting confidentiality of certain governmental information and the democratic ideology of open government. For example, at common law, a principle evolved in which "writings and information constituting military or diplomatic secrets" were excluded from public scrutiny for the obvious reason of national security.³⁰⁵ In 1966 Congress codified this common law principle as one exception to the broad rule of making federal government information available in its enactment of the Freedom of Information Act.³⁰⁶ Another exception is the "privilege [that] protects communications made between governmental personnel, or between governmental personnel and outside consultants, which consist of advisory opinions and recommendations preliminary to the formulation of agency policy."³⁰⁷ Under this exception, reports to or among government officials will not be accessible if they were "communicated prior to finalization of the policy and...constituted opinion or evaluation as opposed to the mere reporting of objective facts."³⁰⁸ States also have enacted their versions of the Freedom of Information Act.

The general rule favoring information accessibility is significant in that it "clear[s] the way for discovery [of the information] in litigation."³⁰⁹ Further, if the government is a party to the litigation, the accessibility of information is often essential to the parties involved. If the government initiates either a criminal or civil action, but refuses to allow the defendant access to significant governmental information, courts do not hesitate to dismiss the government's case.³¹⁰ But the opposite situation in favor of the government may arise when the government is the defendant. For example, even given the Federal Government's Freedom of Information Act "an adverse finding cannot be rendered against [the government] as the price of asserting an evidentiary privilege."³¹¹ Therefore, if "the plaintiff's action cannot be proved without disclosure of the privileged matter, the plaintiff will remain remediless," although some courts will labor to prevent this harsh result.³¹²

The Plaintiff in our situation may be able to gain access to an RSAP report under the state's "freedom of information act" (FOIA) if the local rural transportation entity's RSAP report is viewed as an accessible public record. All six of the states sampled in this study have some form of "freedom of information act," which purports to allow private citizens access to public records.³¹³ Wyoming's § 16-4-202 provides a statement typifying the underlying policy: "All public records shall be open for inspection by any person."³¹⁴ Each of the six acts applies to the state government and its branches and local governments and their branches.³¹⁵

The general rule of the FOIAs in the six sample states is that all public records are accessible. For example, in Louisiana, "[t]he fact that a person who requests a public record volunteers [the purpose behind the request] does not permit a detailed inquiry by the [entity or a court] into the applicant's motive behind the request."³¹⁶ All of the acts, however, provide definite limitations on that rule for reasons such as confidentiality and public safety. In Arizona, the test for accessibility is not whether the "record is technically a public record, [but whether] release of the information would have an important and harmful effect on the official duties of the official or agency."³¹⁷ In Loigman v. Kimmelman, the New Jersey Supreme Court said that in considering the citizen's right to a public record, a court must examine "the extent to which agency selfevaluation, program improvement, or other decision making will be chilled by disclosure."³¹⁸

Furthermore, while a lawsuit against the entity is pending, the requirement that an entity comply with the acts may be lessened. In Arizona and Michigan, the fact that a civil lawsuit against the entity was pending did not affect the entity's obligations to comply with the FOIA as to the plaintiff's requests for records.³¹⁹ But in Michigan, using the FOIA as a pretrial discovery procedure is not allowed,³²⁰ and in North Carolina, attorney-client communications "concerning any claim against or on behalf of the government body" are not accessible under the FOIA.³²¹ In Wyoming, "interagency or intra-agency memoranda or letters which would not be available by law to a private party in litigation with the agency" may be withheld from the citizen.³²²

Table 8 summarizes the various nuances of FOIAs that may limit a citizen's right to public information.

Table 8. Limitations to full access in the FOIAs of the sample states

If limitations on the freedom of information prohibit our plaintiff from accessing the RSAP report, he or she may be able to access the report in litigation through discovery procedures.

Discovery of the Road Safety Audit Program Report

Once litigation has commenced, our plaintiff may have access to the RSAP report through "discovery." Discovery is the pretrial stage of litigation in which facts are revealed and issues identified.³²³ The discovery philosophy of most states is full disclosure; "a party may seek any information that is relevant to the subject matter of the action, as long as it is not privileged."³²⁴ Rule 26 of the Federal Rules of Civil Procedure³²⁵ is the model upon which all six of the sample states base general provisions for discovery.³²⁶

The standard for discoverable information is much lower than that for admitting evidence during trial; the information "only must be reasonably calculated to lead to admissible evidence."³²⁷ But this laxity in no way licenses the party seeking discovery to engage in a "fishing expedition" in hopes of finding a lawsuit. For example, in Williams v. State Farm Mutual Auto. Ins. Co., the North Carolina court denied the plaintiff's discovery request because it was "very broad," and the plaintiff did not show "that the materials sought were relevant or necessary."³²⁸ Other state courts in the sample states have held similarly.³²⁹

Rule 34 allows the requesting party to access any documents discoverable under Rule 26. All six of the states in this study have equivalents to Rule 34.³³⁰ A common requirement of Rule 34--which allows discovery without court approval--is that the request addresses the requested item with "reasonable peculiarity."³³¹

In this paper, Rule 26 of the Federal Rules of Civil Procedure and its state equivalents will be referred to as "Rule 26."

The litigation philosophy favoring broad discovery and the minimal requirements for the seeking party would seem to imply that discovery of the RSAP report is easily attainable. This is not the case. Privileged information is not discoverable. Three privileges related to the RSAP report are explored next.

Privileges

It is possible that the RSAP report would be protected from discovery or from being introduced into evidence under a theory that it is privileged. Three theories bear this potential: the work-product privilege, the self-critical analysis privilege, and the Federal-Aid Highway Program privilege.

The term "privilege" is used in this paper to connote an entitlement to protection from disclosure that may not yet have been fully incorporated into the body of the law. This use of the term is looser than the narrow use of the word in more common privileges such as the "attorney-client privilege" and "doctor-patient privilege." In this paper, the term does not mean the narrow class of "privileges" that are well ensconced in the laws of evidence, but is instead a looser term used to generally describe protection from disclosure.

Table 9 identifies the privileges that the local rural transportation entity may be afforded in the sample states.

Table 9. Local rural transportation entity privileges in the sample states

These three privileges are now discussed in greater detail.

The Work-Product Privilege

The work-product privilege "prevents access to material prepared for or in anticipation of litigation."³³² All six of the states studied recognize the work-product privilege.³³³ The policy behind the privilege is to protect such things as the strategies, thoughts, and opinions of the attorney or others involved in the case. While the general rule is that such material is protected from discovery or evidence, there are some limitations to this rule that operate to allow discovery or admissibility.

The first two limitations are found in Rule 26 itself: the party seeking discovery of the document must show a "substantial need" for the document and that the party cannot obtain the document elsewhere without "undue hardship."³³⁴ A third limitation is that only the opinions in the report are protected; facts are unprotected. For example, an attorney's video tape of a field condition--even though prepared for trial--is considered a fact and is unprotected.³³⁵ Along those lines, the documents or statements about which the attorney forms an opinion and writes in a report will not be privileged as the attorney's work product, though the opinions in the report would be.³³⁶

Rule 26 also provides that the attorney does not have to be personally involved in the preparation of the report. The work of the party's representative (i.e., consultant, agent, insurer, etc.) can be covered as well, so long as it meets the criteria described above.³³⁷

So if the RSAP report is deemed to have been prepared in anticipation of litigation and the plaintiff cannot show a substantial need for the report, the report would probably be privileged as a work-product. But the entity will have difficulty in showing that the report was prepared in anticipation of litigation. Indeed, the purpose of the Road Safety Audit Program is not to prepare for litigation, but to aid the transportation entity in identifying and mitigating road safety deficiencies.

The Self-Critical Analysis Privilege

In the wake of increasing federal and state regulations, private corporations have stepped up their efforts in initiating internal evaluations to better comply with the law, identify problems in hopes of mitigating them, and avoid any unwanted sanctions from regulatory agencies. Even though such "self-evaluations" often are required by the regulatory agency, in some jurisdictions the "privilege of self-critical analysis has developed to shield certain institutional self-analyses from discovery."³³⁸ In other words, reports from an organization's internal reviews may not be discoverable or admissible under this "self-critical analysis privilege." The policy behind such a privilege is to encourage candid investigations and analyses to better organizations' performance and compliance, while "the public's need for all available evidence" counters the privilege.³³⁹

These two competing policy interests have indeed resulted in inconsistent views of the self-critical analysis privilege.³⁴⁰ Heller suggests a continuum along which various views lie: at one extreme are those jurisdictions who refuse to allow the privilege; at the other extreme are those jurisdictions who protect the underlying self critical facts and the self-critical material; in the middle are those who protect the self-critical material, but admit or allow discovery of the underlying facts.³⁴¹ The privilege has been used successfully in cases involving, among other things, environmental regulation compliance³⁴² and hospital records.³⁴³ But in the 1990 U.S. Supreme Court case of University of Pennsylvania v. Equal Employment Opportunity Commission, the Court refused to extend the privilege to academic peer review materials in a Title VII civil rights claim.³⁴⁴

The domain of allowing the self-critical analysis privilege is not left to the courts; in addition to case law, "the privilege of self-critical analysis, unlike many other privileges, has been the subject of state legislation."³⁴⁵ Although some state legislatures have codified the privilege, the U.S. Congress refused to do so. Regardless of the source--whether judicially or legislatively--some jurisdictions may view the privilege as necessary to protect certain documents or reports from discovery or admissibility while others may view "the public need for all available evidence"³⁴⁶ as paramount.

Congress did not enact Proposed Federal Rule of Evidence 502 that would have extended the privilege "if the law requiring [the return or report] so provides." Fed. R. Evid. 502 (not enacted).

Four of the six states studied have recognized the self-critical analysis privilege to varying extents and in varying contexts, with only New Jersey allowing it--in certain situations--in a transportation setting. Perhaps the policy that led to these uses of the privilege will support a local rural transportation entity's use of the privilege.

In 1975, the Arizona Supreme Court refused to recognize the privilege where an employer sought to protect its own internal safety program evaluations,³⁴⁷ but recognized the privilege in 1983 in the case of State ex rel. Corbin v. Weaver.³⁴⁸ In that case, the court observed three factors that "emerge as guideposts" for the privilege: (1) "materials protected have generally been those prepared for mandatory governmental reports," (2) "only subjective, evaluative materials have been protected," and (3) there is a "policy favoring exclusion of the materials [that] clearly outweighed plaintiff's need."³⁴⁹ An article by Arizona attorney Gary Cohen observes that "Arizona lawyers should be aware of the self-critical analysis privilege when advising clients about the creation or discovery of such information," but cautions: "Lawyers cannot, however, be confident self-critical analysis materials, as such, will be protected from discovery."³⁵⁰ He thus recommends that lawyers "focus on keeping self-critical analysis materials within the attorneyclient privilege and work-product doctrine by 1) directly participating in their preparation; and 2) indicating that the materials are "prepared in anticipation of litigation."³⁵¹

A 1999 article by Arizona attorney Gary Cohen observes that "Arizona lawyers should be aware of the selfcritical analysis privilege when advising clients about the creation or discovery of such information," but cautions: "Lawyers cannot, however, be confident self-critical analysis materials, as such, will be protected from discovery." He thus recommends that lawyers "focus on keeping self-critical analysis materials within the attorney-client privilege and work-product doctrine by 1) directly participating in their preparation; and 2) indicating that the materials are 'prepared in anticipation of litigation.'" Gary J. Cohen, A Guide Through the Morass of the Self-Critical Analysis Privilege, 35-Jul AZATT 34, 38 (1999).

Louisiana does not recognize the privilege as applied to the local rural transportation entity, but does recognize it in the context of hospitals, where internal hospital records³⁵² and peer review committee reports³⁵³ are privileged. For instance, the court recognized the privilege "in order to foster the ability of hospitals to regulate themselves unhindered by outside scrutiny and unconcerned about the possible liability ramifications their discussions might bring about."³⁵⁴ The court will still subject a request for the privilege to an in camera inspection.

An in camera inspection is performed by the judge in his or her "chambers before ruling on its admissibility or its use." Black's Law Dictionary 522 (Abridged 6th Ed. 1991).

Michigan upheld the privilege in the context of an internal investigation into police affairs. There court also required an in camera inspection.³⁵⁵

In Wylie v. Mills,³⁵⁶ (1984), the New Jersey Supreme Court created the privilege in a transportation context, but narrowed its application in 1997. In the latter case, Payton v. New Jersey Turnpike Authority, the court refused to "adopt the privilege of self-critical analysis as a full privilege," but instead will balance "a party's need to know against another party's need for confidentiality."³⁵⁷

The self-critical analysis privilege does not appear to be as applicable to protecting the RSAP report as does the Federal-Aid Highway Program privilege. The latter privilege is discussed next.

The Federal-Aid Highway Program Privilege

The Federal-Aid Highway Program (FAHP) "is a federally assisted, state-administered program which distributes Federal funds to the States for the construction and improvement of urban and rural highway systems" and "is financed from the proceeds of motor-fuel and other highway-related excise taxes deposited in the Federal Highway Trust Fund."³⁵⁸ Such "highway- user" fees as gasoline taxes, tire taxes, and tolls make up the Federal Highway Trust Fund that is distributed among states that, in turn, internally distribute funds to local governments. In 1996, of the $101.5 billion "[t]otal highway funding by all units of government," $63.8 billion (or 62.9 percent) was contributed by highway-user fees through the FAHP.³⁵⁹

Section 409 of Title 23 of the United States Code (initially passed by Congress in 1987) provides that an internal safety evaluation generated by a transportation entity may be privileged and not discoverable nor admissible when the evaluation is to be implemented in a FAHP project. This is a watershed. From the combination of the reach of a 62.9 percent funding share and Congress' policy goal of increasing road safety, it appears that this Congressional grace imparts sweeping protection to transportation entities with respect to their liability in knowing of road defects.

"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 [Railway-highway crossings], 144 [Highway bridge replacement and rehabilitation program], and 152 [Hazard elimination program] 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." 23 U.S.C. § 409 (2000). Road safety certainly appears to be a policy goal of Congress. For instance, 23 U.S.C. § 152 promulgates the "Hazard elimination program" which mandates that "[e]ach State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements...assign priorities..., and establish and implement a schedule of projects for their improvement." 23 U.S.C. § 152(a)(1).

Four of the states studied recognize the Federal-Aid Highway Program privilege (FAHP privilege) to varying degrees. Arizona takes a strict view, narrowly viewing the defense. In Southern Transp. Co. v. Yarnell In and For County of Maricopa, the Arizona Supreme Court says that the only documents privileged by the FAHP privilege are those "described and prepared under the authority of §§ 130, 144, and 152, and no others."³⁶⁰

Louisiana initially balked at allowing the privilege,³⁶¹ but after reviewing the history of the Act, endorsed the privilege in 1993. In that case, Wiedeman v. Dixie Elec. Membership Corp., the court held that the following are not privileged: "(1) accident reports; (2) traffic counts; and (3) other raw data collected by the [DOT]," and held that the following are privileged: "(1) surveys to identify hazardous railroad crossings and improve them (§ 130); (2) applications for federal assistance in replacing or rehabilitating highway bridges (§ 144); (3) studies assigning priorities and schedules of projects for highway improvement (§ 152); and (4) other compilations made for developing highway safety construction projects which would utilize Federal-aid funds (§ 409)."³⁶²

Michigan takes a broad view and liberally allows the privilege. In Mackie v. Grand Trunk Western R. Co., the court reversed a trial court's refusal to protect a railroad grade crossing report.³⁶³ The appellate court held that the report should have been privileged under the FAHP privilege on two grounds: first, the privilege applies "to projects 'which may be implemented utilizing Federal-aid highway funds...'" and second, the privilege is not only for those projects deemed "comprehensive."³⁶⁴

North Carolina acknowledged the privilege in a recent case, but did not interpret the privilege; it instead returned the case to the lower court for deciding applicability of the privilege.³⁶⁵

The FAHP privilege seems likely to protect the RSAP report from disclosure in discovery and as evidence, provided the project stands the chance of being implemented using FAHP funds. The importance of this particular privilege is significant. As discussed above, federal-aid monies fund nearly 63 percent of the nation's transportation projects. If the other criteria of § 409 are met, an RSAP report that covers a project that may be implemented with FAHP funds is likely to be privileged from discovery and from evidence.

Public Records and Reports

If the local rural transportation entity is not immune and if the plaintiff obtains the RSAP report through discovery (i.e., the report was not privileged), the plaintiff still must offer the report into evidence before it can be used to establish the entity's liability. Records made by the governmental agency as part of its ordinary course of business may be admissible during the course of litigation. Before exploring that question, a brief discussion of the rule against hearsay is warranted.

One general rule of evidence is that "hearsay" evidence is inadmissible.³⁶⁶ According to the Federal Rules of Evidence, "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted."³⁶⁷ In other words, "[w]hen a witness testifies that someone said something out of court, the out-of-court statement is hearsay if its relevance depends on the truth of what the out-of-court speaker meant to communicate."³⁶⁸ The primary concern behind excluding hearsay evidence is that if admitted, the out-of-court speaker's words would not be tested by cross-examination. In short, the jury would not be able to evaluate truthfulness of the out-of-court speaker.

An exception to the general rule against hearsay is the rule admitting regularly kept records into evidence.³⁶⁹ The policy behind this exception that allows what would otherwise be inadmissible hearsay is "that regularly kept records typically have a high degree of accuracy," in that the "records are calculated to train the recordkeeper in habits of precision...[and] the entire business of the nation and many other activities function in reliance upon records of this kind."³⁷⁰ In other words, if businesses and government can rely on the truthfulness of such records, courts should be able to rely on their truthfulness as well.

Because the RSAP report is produced by a government agency, the plaintiff may try to introduce the report--assuming the plaintiff was successful in obtaining the report--as a public record. All six of the states sampled have a public records exception³⁷¹ that is modeled after Rule 803(8) of the Federal Rules of Evidence.³⁷²

Arizona, Louisiana, North Carolina, and Wyoming will allow into evidence only those portions of records that contain "factual findings," such that those records of portions of records that contain opinions or conclusions will not be admitted.³⁷³ For example, in Davis v. Cessna, the Arizona court properly refused those portions of a National Transportation Safety Board (NTSB) report, which offered conclusions as to the cause of a plane crash, but properly admitted the portions of the report providing the facts of the crash.³⁷⁴ Further, Louisiana courts hold that although "factual findings from a general investigation may be admissible, factual findings from a specific or particular investigation are inadmissible."³⁷⁵

Table 10 summarizes the position of the sample states with respect to the public records exception and its limitation.

Table 10. Admissibility of Public Records in the sample states

If the local rural transportation entity can be found liable and if the plaintiff gains access to the RSAP report and can introduce it into evidence, the issue becomes whether the public interest in improving highway safety can overcome a finding of the entity's negligence. In other words, if the entity's "defensive defense" strategy failed--or if the entity chooses not to employ the strategy in the first place--will the entity's "offensive defense" strategy prevail? That is the subject of the next discussion.

Issue Three: Does Improving Public Safety Outweigh The Entity's Negligence?

Trying to keep the RSAP report from the plaintiff or from being admitted into evidence is one litigation defense approach that entity being sued may take. Certainly the entity's immunity from liability is desirable. And if the plaintiff has no "smoking gun" with which to show that the entity had notice of the road deficiency at issue or that the entity breached a duty owed to her, the plaintiff's case becomes difficult. But what does this "defensive defense" strategy say of the entity's confidence in the RSAP?

In contrast, an "offensive defense" strategy is one in which the local rural transportation entity being sued does not use the inadmissibility of the report as a shield from liability but instead uses the report as an evidentiary sword of a good faith attempt to improve road safety. This strategy leads to three further inquiries.

The first of these inquiries is whether the Road Safety Audit Program is simply a tool used by the local rural transportation entity to accomplish the entity's legal duties. The second inquiry is whether decisions arising out of the RSA report are part of the entity's governmental actions. The third inquiry is into the effect that using the RSAP report against the entity might have on the public policy of improving road safety. These inquiries will be discussed in turn.

The RSAP: Assisting the Transportation Entity in Performing its Duties

The local rural transportation entity has specific duties that it must perform as controller of the local government's roads. The entity generally has to keep the roads reasonably safe for all road users. Thus the entity has the duty to warn of hazardous situations, the duty to maintain the roads, and the duty to comply with standards. Of the local rural transportation entities in the six states sampled, four have the duty to warn, five have the duty to maintain, and four have the duty to meet standards.

See Table 6.

These duties were discussed previously as sources of the entity's liability in that the entity's failure to meet these duties could be grounds for liability. But these duties are not imposed on the local rural transportation entity for the purpose of providing fodder for a negligence charge; they are imposed on the entity for the purpose of keeping the roads safe.

The Road Safety Audit Program is a device that the entity can use to comply with these duties for keeping the roads safe for all road users. The RSAP report would identify and prioritize the needed road safety improvements, and the entity's management could utilize the report in its decisions about which roads need warnings or maintenance. It would indeed be a strange result if the legislature or the courts were to saddle the entity with the duty to keep its roads safe for all road users, yet allow the report that the entity uses to meet that duty to become the basis of the entity's liability.

The RSAP: Protected Governmental Action

Employees of the local rural transportation entity necessarily make several decisions in carrying out the role of the local rural transportation entity as the steward of the local government's roads. Decisions abound in selecting between design, construction, and maintenance alternatives. The Road Safety Audit Program will present the local rural transportation entity with a panoply of alternatives for improving road safety deficiencies, requiring the entity's managers to decide between several courses of action.

Generally speaking, the law distinguishes between those actions of the government that are considered to be government actions and those which are not, extending immunity to those that are and subjecting the entity to liability for the latter. The law recognizes that some decisions have wide parameters while others have narrow parameters or even no parameters at all. Therefore, it becomes necessary to determine the effect of various decisions, which the entity makes in deciding between alternatives presented in the RSAP report will have on the entity's immunity.

Various legal distinctions that limit the local rural transportation entity's sovereign immunity are presented. A continuum of the various decision approaches arising from a Road Safety Audit Program is presented and is analyzed in the light of various sovereign immunity limitations.

A Continuum of Road Safety Audit Program Decisions

The entity's decision-makers may decide to implement some of the Road Safety Audit Program's improvement alternatives immediately, to reject some alternatives outright, and to partially implement others. These opportunities for decisions presented by the RSAP can occur at any time in the road's "life": at any time before it is built or at any time after it is built.

"Partial improvements" include, for example, the similar improvement, an improvement completed only to a preliminary stage, and the decision to implement the improvement at a later date.

But the decisions made before the road is built may have a different character than those made after the road is built. Decisions made before the road is built include planning and engineering decisions, such as those related to road alignment and cross sectional features. Those made during or after construction include maintenance, operation, and redesign decisions, such as whether to chip seal a road, install a stop sign, or realign a horizontal curve. The concern in distinguishing between pre- and post-construction decisions is in the severity of the impact of the decision. For example, in the planning stage, a rejection of an alignment with multiple safer features may have more severity than a decision to reject a decision to improve one safety deficiency on an existing road.

The term "post-construction" as used in this Report also includes the construction stage itself.

Whether a weightier decision subjects the local rural transportation entity to more liability is the issue here. To analyze this, various distinctions between certain governmental activities found in the law are used.

Sovereign Immunity Distinctions

Three distinctions that refined sovereign immunity in our six sample states emerged: the negligence-gross negligence distinction, the governmental-proprietary distinction, and the discretionary-ministerial distinction. These distinctions are aimed at allowing governments immunity from suit for activities done in the scope of government, but hold them responsible for activities not in the scope of government.

Table 11 summarizes views of the six states as to the governmental-proprietary distinction. Of the six states studied, five states use the negligence-gross negligence distinction (Arizona, Louisiana, Michigan, New Jersey, and Wyoming), two states use the governmentalproprietary distinction (Michigan and North Carolina), and three use the discretionary-ministerial distinction (Arizona, Louisiana, and New Jersey). Wyoming statute §1-39-102(b) reads, "In the case of the state, this act abolishes all judicia lly created categories such as 'governmental' or 'proprietary' functions and 'discretionary' or 'ministerial' acts previously used by the courts to determine immunity or liability."³⁷⁶

Table 11. Local entity sovereign immunity distinctions recognized in the sample states

The Negligence - Gross Negligence Distinction.

Louisiana and Michigan have statutes that remove immunity from the local entity if the damage was caused by the entity's gross negligence. Louisiana says that no one "shall have a cause of action against a public entity...for damage to property...unless such damage was caused by willful or wanton misconduct or gross negligence."³⁷⁷ Michigan's statute provides local immunity only so long as the government "officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage."³⁷⁸

Gross negligence is "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."³⁷⁹ In 1929, the New Jersey Supreme Court held that a police officer was grossly negligent in a driving "at high speed and without warning."³⁸⁰ But the other states sampled are more deferential to the local entity. In Arizona, the Supreme Court refused to hold the City of Flagstaff liable for gross negligence where a child was injured while sledding in a city park, saying that the city was not "grossly negligent in creating a dangerous situation" nor in maintaining it, and that the city in fact "discourage[d] sledding on the hill by posting warning signs."³⁸¹ The Louisiana Supreme Court refused to hold the City of Morgan City liable for gross negligence in its alleged failure to fill a deep spot in a natural swimming lake owned by the city.³⁸² Michigan's Supreme Court refused to find a city grossly negligent where one of its employees injured the plaintiff with a forklift having known brake problems.³⁸³ In Wyoming, the Supreme Court held that "a municipality is not liable for injuries resulting from a negligent plan of construction unless the court can say that the plan is so manifestly dangerous that it is negligent as a matter of law."³⁸⁴

Applying this distinction to questions of liability in Road Safety Audit Program decisions made pre- or post-construction indicates that the pre- or post-construction split would probably not make a difference. The negligence-gross negligence distinction depends not so much on the stage of the decision, but on the conduct of the governmental decision-maker. For a RSAP decision to be drawn out from beneath the entity's immunity, the decision--whether pre- or post-construction--would have to have been reckless or manifestly dangerous. Sending a road over a cliff is probably reckless or manifestly dangerous, but deciding between similar alternatives in fulfilling a need for a road would probably not be construed as reckless.

The Governmental - Proprietary Distinction.

In some states, a distinction is drawn between not holding a government liable for its "governmental" functions such as fire prevention, police protection, and education while holding a government liable for its "proprietary" functions such as airports, gas, lights, and playgrounds. According to engineering researcher Glennon, "government functions are those that can only be performed adequately by a government unit such as police, fire protection, or courts," whereas "[p]roprietary functions are those that could be supplied by private concerns."³⁸⁵ Glennon maintains the distinction as lying simply in "proprietary functions are those services that derive revenue, such as water, gas, and electric supplies."³⁸⁶

However, according to researchers Fuller and Casner, the distinction has resulted in "an enormous amount of litigation" as governments argue that the function in question is governmental while the injured party argues that the function is proprietary.³⁸⁷ Furthermore, there is little agreement between what facts constitute proprietary liability, resulting in the distinction's determination depending on a case-by-case basis, varying among the states.³⁸⁸ Fuller and Casner add that "activities involving streets, sidewalks, playgrounds, bridges, viaducts, and sewers are governmental in some jurisdictions and proprietary in others."³⁸⁹ Thus, functions performed by transportation departments have traditionally fallen into the "gray area" between governmental and proprietary, the first category affording immunity to governments, the latter, liability.

Because of this apparent gray area, there is no "bright-line" rule; each state's view of this distinction is its own, although some similarities do exist among the states. According to author Minge, "[a]lthough the maintenance of public ways 'would seem to be a governmental or public function,...most of the courts of this country...have held cities liable for negligence in failing to keep their streets in a safe condition for travel.'"³⁹⁰ Transportation researcher Lewis echoes this view: "the construction and maintenance of public streets, highways, and sewers have generally been regarded to be proprietary functions in most states."³⁹¹ Further, this judge-made law (or "common law") basis for liability may also be either supplemented or reversed in a statute.

Applying the governmental-proprietary distinction to the question of a local rural transportation entity's immunity in pre- and post-construction decisions arising out of a Road Safety Audit Program is not as clear cut as applying the negligence-gross negligence distinction. Nevertheless, the distinction probably does not operate to remove the coverage of the entity's immunity in these decisions. The governmental-proprietary distinction aims at the type of decision being made rather than the stage of the project at which the decision is made. The purpose of the governmental-proprietary distinction is to protect those decisions that are of a governmental nature. Therefore, if the local rural transportation entity's decision (in a state that recognizes the distinction) is classified as a governmental decision, it makes no difference as to whether that decision was made before or after construction of the road.

Two of the six states sampled in this study--Michigan and North Carolina--use the governmental-proprietary distinction in determining immunity of their local governments. Arizona, Louisiana, New Jersey, and Wyoming do not. Arizona and Louisiana rely on the discretionaryministerial distinction as discussed below, and New Jersey and Wyoming specifically rejected the distinction. In 1980 the New Jersey Supreme Court specifically rejected the distinction in Tower Marine, Inc. v. City of New Brunswick,³⁹² recognizing the language in New Jersey's Tort Claims Act that instead contains the discretionary-ministerial distinction. Wyoming Statute 1-39-102(b) reads, "In the case of the state, this act abolishes all judicially created categories such as 'governmental' or 'proprietary' functions and 'discretionary' or 'ministerial' acts previously used by the courts to determine immunity or liability."³⁹³ It is unclear whether the abolition of these distinctions also applies to Wyoming's local governments.

In Michigan, the governmental-proprietary distinction is found in the language of statute § 691.1407(1) which provides that "a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function."³⁹⁴ That statute goes on to say that "the discretional or ministerial nature of the conduct in question" is not to be considered.³⁹⁵ In Adam v. Sylvan Glynn Golf Course, the Michigan court defined the (non-immune) proprietary function as "an activity [that is] conducted primarily for the purpose of producing a pecunia ry profit and not normally...supported by taxes or fees."³⁹⁶ Yet while public entities in Michigan generally enjoy immunity for governmental functions, the "highway exception"³⁹⁷ prevents road entities from so doing. For example, the Michigan court refused to allow the state to be immune from liability involving a fatality when a car crossed over median,³⁹⁸ and refused to allow a county immunity from a suit involving an injury from stepping onto cracked pavement,³⁹⁹ both cases involving what arguably would have been governmental functions otherwise.

Unlike that of Michigan, the North Carolina governmental-proprietary distinction is not found in a statute. In Guthrie v. North Carolina State Ports Authority, the North Carolina Supreme Court explained: "[I]n determining the liability of a municipality for tort, one of the primary questions usually presented is whether the incident causing the plaintiffs injury or damage arose out of a governmental or proprietary function of the municipality."⁴⁰⁰ The court added, "the general rule being that liability may be found if the function was proprietary but not if it was governmental."⁴⁰¹ Examples of North Carolina municipalities' governmental functions in which the municipalities were held to be immune from liability include the operation of a public street lighting system⁴⁰² and operating traffic signals.⁴⁰³

Table 12 summarizes the views of the six states as to the governmental-proprietary distinction.

Table 12. Views of the governmental-proprietary distinction in the sample states

The Discretionary - Ministerial Distinction.

Alongside the Governmental-Proprietary distinction is the Discretionary-Ministerial distinction. Ministerial acts are those that "usually involve clearly-defined tasks performed with minimum leeway on personal judgment and do not require any comparison of alternatives before undertaking the duty to be performed," such as "[r]outine roadway maintenance."⁴⁰⁴ These acts "may create liability,"⁴⁰⁵ in that "persons involved in ministerial functions are generally open to tort liability suits."⁴⁰⁶

On the other hand, discretionary functions "are those requiring the exercise of independent judgment in arriving at a decision or choosing a course of action."⁴⁰⁷ Liability in discretionary functions is less clear than that in ministerial functions, as "courts are reluctant to second-guess discretionary decisions made by executive bodies" and because of the belief "that a jury of untrained laymen is not competent to evaluate the appropriateness of discretionary decisions."⁴⁰⁸ When deciding liability questions relating to discretionary functions, courts often have ruled in favor of transportation entities when the "agencies have carried out a reasonable plan of roadway improvements."⁴⁰⁹ Courts often also hold out as legitimate discretionary functions the "adoption of improvement plans, the designation of funds, and the setting of priorities for improvement."⁴¹⁰

Courts may extend protection to an entity's "discretionary" decision after analyzing whether the entity complied with the entity's manuals, codes, and other such documents, paying particular attention to the level of discretion allowed by the document. Courts will probably view non-compliance with mandatory provisions less favorably than non-compliance with optional provisions. Again, if the relevant "code, manual, standard, or guideline permits the exercise of discretion, not directing conformance to a mandatory standard, the alleged deviation may be considered to be some evidence of negligence, but not negligence per se."⁴¹¹

Mandatory provisions may include words such as "shall" and "must." Optional provisions may include such words as "may" or "ought." When a defendant (e.g., the transportation entity) is found to have been negligent per se, the plaintiff is presumed to have met its burden of proof and the defendant must then convince the jury otherwise. On the other hand, a finding of evidence of the defendant's negligence is not nearly as detrimental to the defendant; there is no presumption that the defendant was negligent and the burden of proof is still with the plaintiff.

In determining the effect of the distinction on the pre- and post-construction decisions of the Road Safety Audit Program, the level at which the decision is made plays a significant role. Immunity under the distinction turns on the amount of discretion of the person making the decision. Decisions made in the pre-construction stage of a project are typically made by professionals; the decision-makers are afforded wide discretion and routinely decide policy matters. For example, a pre-construction decision might be whether to locate a new county road on the west slope of a mountain as opposed to the east slope. In contrast, several decisions made in the postconstruction stage of a project are made by employees that are not afforded much discretion.

It follows then that the pre- or post-construction Road Safety Audit Program split is of more relevance in this distinction than it is in the prior two because decisions made regarding an existing road are more likely to include routine decisions that do not tolerate much variance. Thus, in states that recognize discretionary-ministerial distinction, those decisions that are made regarding a road that has not yet been constructed stand more of a chance of being afforded discretionary protection.

Arizona statute § 12-820.01 provides that an Arizona "public entity shall not be liable for acts and omissions of its employees constituting...[t]he exercise of an administrative function involving the determination of fundamental governmental policy [which] involves the exercise of discretion."⁴¹² The distinction lies in the difference between administrative and operational level acts, where "[o]perational level acts concern routine, everyday matters," and are not entitled to immunity, whereas administrative acts--which "require evaluation of broad policy powers"--are entitled to immunity."⁴¹³ An example of an act that was not immune because it was not making fundamental governmental policy was the county flood control district's negligent exercise of its regulatory authority over a drainage ditch in which a pedestrian was injured.⁴¹⁴

Louisiana statute § 9:2798.1 provides immunity for Louisiana public entities "based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts."⁴¹⁵ In Rick v. State, Dept. of Transp. and Development, the Louisiana Supreme Court provided a two-part test for determining whether the discretionary exception applies: (1) "First, a court must determine whether the action is a matter of choice," and (2) "[I]f no options are involved, the exception does not apply. If the action involves selection among alternatives, the court must determine whether the choice was policy based."⁴¹⁶ The court adds that even those "[d]ecisions at an operational level can be discretionary if based on policy."⁴¹⁷ The court held that a Parish's decision to not provide a sidewalk involved a discretionary act for which the state legislature had provided the Parish immunity.⁴¹⁸

New Jersey rejected the governmental-proprietary distinction in Tower Marine, Inc. v. City of New Brunswick.⁴¹⁹ Instead, New Jersey statute § 59:4-6 provides that a local rural transportation entity is not liable "for an injury caused by the plan or design of public property...where such plan or design is prepared in conformity with standards previously [approved by the Legislature, other governing body, or some other body or public employee exercising discretionary authority]."⁴²⁰ Statute § 59:2-3 provides that such immune activities include discretion in providing resources, services, and facilities, and says that the "entity is notliable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources."⁴²¹ Examples of immune discretionary functions include the county's control over traffic signs and warning devices⁴²² and the decision to implement the state's maintenance program.⁴²³ But, as found in Costa v. Josey, the decisions at the operational level within a maintenance program are not immune.⁴²⁴

Table 13 summarizes the views of the six states as to the discretionary-ministerial distinction.

Table 13. Views of the discretionary-ministerial distinction in the sample states

Table 14 summarizes how methods of sovereign immunity distinctions affect the Road Safety Audit Program's pre- and post-construction split--the Road Safety Audit and the Road Safety Audit Review, respectively.

Table 14. Sovereign immunity distinctions coupled with the pre - and post-construction decision split

Implications of the Sovereign Immunity Distinctions.

The distinctions in sovereign immunity are helpful in analyzing questions that may arise from various options that the transportation entity's decision-maker has in deciding what to do with the RSAP report, whether from a Road Safety Audit or a Road Safety Audit Review. If the decision is based on policy grounds or is made at a high level, the decision stands a good chance of being protected by sovereign immunity. But if a decision is based on non-policy grounds or is made at a lower level, the decision is less likely to be protected by sovereign immunity. Such a decision probably will be tested as any other negligence issue would be tested (i.e., whether the decision-maker breached a duty of care to the plaintiff).

Therefore, decisions not to implement a Road Safety Audit Program or not to implement recommendations from a RSA or a RSAR likely will first be tested with these sovereign immunity distinctions. If the decision does not garner immunity protection, the decision is subject to other negligence analyses such as the reasonableness test.

The RSAP: Furthering the Public Interest of Improving Road Safety

In addition to the RSAP's value of being a tool to carry out the entity's duties and its likelihood of falling under an immunity distinction, the RSAP has another virtue: it furthers substantial policy interests. As discussed in Chapter Two, the public policy of road safety is an overarching public policy. The policy is inherent in the transportation engineering profession and is reflected in transportation-specific statutes and analogous legal doctrines.

Transportation Entity-Specific Road Safety Provisions

Several states have statutory provisions that deal specifically with the local rural transportation entity. These provisions manifest the legislature's interest in road safety. This thrust of the statutory scheme may indicate that the Road Safety Audit Program would be viewed with favor in the courts.

Arizona's Tort Claims Act (TCA) provides immunity for the local rural transportation entity with respect to "an injury arising out of a plan or design for construction or maintenance of or improvement to highways, roads, streets, bridges, or rights of way" if prepared according to generally accepted engineering principles and if adequate warning for unreasonably dangerous hazards is given.⁴²⁵

In Michigan, §§ 691.1402 through 691.1404 of Michigan's TCA combine to allow local rural transportation entity liability for failing "to keep a highway in condition reasonably safe and fit for travel."⁴²⁶ This is known as Michigan's "highway exception" to the state's general rule of immunity,⁴²⁷ and it is construed broadly in favor of plaintiffs. In Nawrocki v. Macomb County Road Commission, the Michigan Supreme Court relied on § 691.1402's language requiring the local rural transportation entity to keep the highway "reasonably safe and convenient for public travel"⁴²⁸ to allow a pedestrian (a member of the public) whose ankle was injured when she stepped on broken pavement of the road to sustain an action against the county.⁴²⁹

New Jersey's Tort Claims Act provides a general rule of local government immunity,⁴³⁰ but the entity may be found liable if the entity had notice of a dangerous condition that caused an accident.⁴³¹ The Act provides that the local rural transportation entity will be liable for its negligence in failing "to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition,"⁴³² but will not be found liable "for an injury caused by the failure to provide ordinary traffic signs, signals, markings or other similar devices."⁴³³ The emphasis in these two provisions is on emergency devices as opposed to ordinary devices. New Jersey's Act also provides immunity for the local rural transportation entity for injuries caused by weather conditions.⁴³⁴ In a broad grant of immunity to the local rural transportation entity, the Act grants "complete immunity for injuries resulting from a plan or design of public property when it has been officially approved by an authorized body."⁴³⁵

Section 1-39-120 of Wyoming's Governmental Claims Act provides sweeping immunity for the local rural transportation entity. It provides immunity for defects "in the plan or design," or "failure to construct or reconstruct," or "maintenance" of "any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area."⁴³⁶ But in 1993, in Romero v. Hoppal, the Wyoming Supreme Court held that the word "maintenance" in the statute is "a noun and not a verb," meaning "that the maintenance [that is immune] is not the act of maintaining, but rather the result of any said act."⁴³⁷ In that case, the plaintiffs upheld the right of the plaintiffs to sue the Wyoming State Highway Department for the death of Jean Hoppal that occurred when the Hoppals' van collided with a snowplow that was operated in maintaining the road.

Table 15 summarizes the provisions of those sample states with transportation-entity specific statutes.

Table 15. Transportation-entity-specific provisions in the sample states

An examination of the statutory provisions covering the transportation entity in Arizona, Michigan, and New Jersey indicates the legislature's interest in road safety. Arizona's statute offers immunity if the plan or design is acceptable and adequate warning is provided. Michigan and New Jersey allow transportation entity liability for unsafe roads. An examination of Wyoming's statute--which generously extends immunity to the transportation entity--indicates the legislature's favoritism of the transportation entity.

In sum, these statutes indicate the legislatures' interest either in road safety or in protecting the transportation entity. It follows, then, that a transportation entity program that furthers road safety (such as the Road Safety Audit Program) would probably be viewed with favor by these legislatures. And if the legislatures reflect the will of the people, the public interest in improving road safety may convince a jury.

Public Policy Arguments

Significant public policy arguments exist in favor of the judicial support of the use of the Road Safety Audit Program by local rural transportation entity. Though some of these public policies are not directly related to the transportation industry, they are relevant by analogy.

First of all, the public interest in increasing road safety is paramount. Chapter Two discussed in detail the fact that road safety is an overarching policy in transportation engineering. Furthermore, echoes of the policy sound among the judicial opinions in all six of the sample states and the policy underlies the statutory schemes that provide both immunity and liability to the transportation entity. Moreover, the United States Supreme Court has recognized the significance of highway safety. In Bibb v. Navajo Freight Lines, Inc., the court stated that "[t]he power of the State to regulate the use of its highways is broad and persuasive. We have recognized the peculiarly local nature of this subject of safety, and have upheld state statutes applicable alike to interstate and intrastate commerce, despite the fact that they may have an impact on interstate commerce."⁴³⁸

Second, the law already recognizes that certain public interests outweigh certain private interests. For example, in the field of product liability, evidence of a manufacturer's subsequent safety improvements to a product alleged to have injured the plaintiff are inadmissible as evidence to show the manufacturer's liability. The polic y behind this rule is that allowing such evidence to be used against the manufacturer would chill the manufacturer's improvement of the product's safety. Though an injured plaintiff's inability to gain access to the report is not an insignificant drawback, the public policy of improving product safety outweighs the injustice to the plaintiff. This underlying policy is directly on point with the desirability of improving road safety through the use of such devices as the Road Safety Audit Program--albeit at the expense of the injured plaintiff who cannot use the report against the entity.

Third, the law already recognizes the value in being protected from having one's own words being used against oneself. This is seen in the criminal context in the privilege against selfincrimination found in the Fifth Amendment of the United States Constitution.⁴³⁹ In a sense, the local rural transportation entity's RSAP report being used against the entity is a form of selfincrimination in that the entity's acknowledgment of a deficiency in a road is used to establish the entity's liability. More directly on point, the Federal-Aid Highway Program Privilege also protects against such incrimination by protecting the data and findings from safety evaluations of Federal- Aid funded roads from being discovered or admitted into evidence.

These public policy arguments are relevant in that the concept of using the RSAP report as an "offensive defense" to show the entity's good faith in improving road safety is not an unprecedented stretch of the law. The law already recognizes that certain interests for the greater good outweigh certain private interests, and also recognizes that the admission into evidence of defendant's admissions of fault are not always in society's best interest. Thus, the "offensive defense" approach should be implemented by the defendant entity. Not only does it have significant legal and public policy support, it radiates the fact that the entity is taking a proactive role in addressing road safety.

Summary

Because there are 50 states with 50 different legislatures and 50 different judicial systems, there is no simple, straightforward answer to the question of whether the report from a Road Safety Audit Program can be used against the local rural transportation entity that conducted the audit. The outcome will depend on a great number of factors dealing with the rules and characteristics of the state, the entity conducting the audit, and the report produced. But what is evident now is that the laws of evidence and discovery are not hostile to the transportation entity, and public policy concerns also favor the entity's use of the Road Safety Audit Program.

174 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability § 5 (1988).

175 See id. § 1.

176 Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz. 1963).

177 Veach v. City of Phoenix, 427 P.2d 335 (Ariz. 1963).

178 Board of Commissioners of Port of New Orleans v. Splendour Shipping and Enterprises Co., Inc., 273 So.2d 19 (La. 1973).

179 La. Const. art. XII, §10, 65 Tulane L. Rev. 1055, 1056 (1991).

180 65 Tulane L. Rev. 1055, 1055 (1991).

181 Michonski v. City of Detroit, 413 N.W.2d 438, 441-442 (1987).

182 P., T. & L. Const. Co. v. Commissioner, Dept. of Transp., 262 A.2d 195 (N.J. 1970).

183 Willis v. Department of Conservation and Economic Development, 264 A.2d 34 (N.J. 1970).

184 Brown v. Brown, 432 A.2d 493, 497 (N.J. 1981).

185 N.C. Gen. Stat. § 143-291(a) (West 2000).

186 See, for example, Galligan v. Town of Chapel Hill, 171 S.E.2d 427 (N.C. 1970), Town of Hillsborough v. Smith, 179 S.E.2d 18 (N.C. 1970), and Koontz v. City of Winston-Salem, 186 S.E.2d 897 (N.C. 1972).

187 Oroz v. Board of County Commissioners of the Board of the County of Carbon, 575 P.2d 1155 (Wyo. 1978).

188 N.C. Gen. Stat. § 143-291(a) (West 2000).

189 Ariz. Rev. Stat. Ann. § 12-820 (West 2000), La. Rev. Stat. Ann. § 9:2793.1(B)(1) (West 2000), Mich. Comp. Laws Ann. § 691.1401 (West 2000), N.J. Stat. Ann. § 59:1-3 (West 2000), Wyo. Stat. Ann. § 1-39-103(a) (West 2000).

190 Ariz. Rev. Stat. Ann. § 12-820.01(A)(2) (West 2000), La. Rev. Stat. Ann. § 9:2793.1(A) (West 2000), Mich. Comp. Laws Ann. § 691.1407(1) (West 2000), N.J. Stat. Ann §59:2-1 (West 2000), Wyo. Stat. Ann. § 1-39-104(a) (West 2000).

191 R.D. Hursh, Annotation, Liability or Indemnity Insurance Carried by Governmental Unit as Affecting Immunity from Tort Liability, 68 A.L.R.2d 1437 (1959) (available on Westlaw at 1, part 2).

192 See id.

193 Hughes v. Burlington County, 240 A.2d 177 (N.J. 1968).

194 Christie v. Board of Regents of University of Michigan, 111 N.W.2d 30 (Mich. 1961).

195 N.C. Gen. Stat. § 160A-485 (West 2000).

196 Davis v. Town of Southern Pines, 449 S.E.2d 240 (N.C. App. 1994).

197 Wyo. Stat. Ann. § 1-39-118(b) (West 2000).

198 Helm v. Board of County Com'rs, Teton County, Wyo., 989 P.2d 1273 (Wyo. 1999).

199 Wyo. Stat. Ann. § 1-39-118(a) (West 2000).

200 John C. Glennon, Roadway Defects and Tort Liability 17 (1996).

201 John H. Derrick, Annotation, Modern Status of Rule Excusing Governmental Unit from Tort Liability on Theory That Only General, Not Particular, Duty Was Owed Under Circumstances, 38 A.L.R. 4th 1194 (1998) (available on Westlaw at 7).

202 John C. Glennon, Roadway Defects and Tort Liability 18 (1996).

203 James O. Pearson, Jr., Annotation, Liability, in Motor Vehicle-Related Cases, of Governmental Entity for Injury, Death, or Property Damage Resulting from Defect or Obstruction in Shoulder of Street or Highway, 19 A.L.R. 4th 532 (1981) (available on Westlaw at 4, part 2).

204 Russell M. Lewis, National Research Council, Practical Guidelines forMinimizing Tort Liability 7 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

205 See id.

206 See id.

207 Ariz. Rev. Stat. Ann. § 12-820.03 (West 2001).

208 Musmeci v. American Auto Ins. Co., 146 So.2d 496, 501 (La. App. 1963).

209 Tullis v. Rapides Parish Police Jury, 670 So.2d 245, 248 (La.App. 1996).

210 Mich. Comp. Laws Ann. § 691.1402(1) (West 2000).

211 See id. § 224.21.

212 See id. § 691.1402(1).

213 Nawrocki v. Macomb County Road Commission, 615 N.W.2d 702, 712 (emphasis in original) (Mich. 2000).

214 N.C. Gen. Stat. § 160A-296 (West 2000).

215 Cranston v. The Weston County Weed and Pest Board, 826 P.2d 251, 258 (Wyo. 1992).

216 Diane M. Allen, Annotation, Highways: Governmentual Duty to Provide Curve Warnings or Markings, 57 A.L.R. 4th 342 (1988) (available on Westlaw at 2, part 2).

217 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 8 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

218 Diane M. Allen, Annotation, Highways: Governmentual Duty to Provide Curve Warnings or Markings, 57 A.L.R. 4th 342 (1988) (available on Westlaw at 2, part 2).

219 James O. Pearson, Jr., Annotation, Liability, in Motor Vehicle-Related Cases, of Governmental Entity for Injury or Death Resulting from Design, Construction, or Failure to Warn of Narrow Bridge, 2 A.L.R. 4th 635 (1981) (available on Westlaw at 3).

220 See generally Section 4(c) of James O. Pearson, Jr., Annotation, Liability, in Motor Vehicle- Related Cases, of Governmental Entity for Injury or Death Resulting from Design, Construction, or Failure to Warn of Narrow Bridge, 2 A.L.R. 4th 635 (1981).

221 Ariz. Rev. Stat. Ann. § 12-820.03 (West 2001).

222 La. Rev. Stat. Ann. § 32:235(B) (West 2001).

223 Sharpley v. City of Baton Rouge, 665 So.2d 21, 23 (La. App. 1995).

224 Mich. Comp. Laws Ann. § 691.1402(1) (West 2000).

225 Salvati v. Department of State Highways, 405 N.W.2d 856, 858 (Mich. 1982).

226 Walker v. City of Flint, 539 N.W.2d 535, 536 (Mich. 1995).

227 Salvati v. Department of State Highways, 405 N.W.2d 856, 858 (Mich. 1982).

228 N.J. Stat. Ann. § 59:4-4 (West 2001).

229 See id. § 59:4-5.

230 See id. § 59:4-7.

231 Spin Co. v. Maryland Cas. Co., 347 A.2d 20, 22 (N.J. 1975).

232 Aebi v. Monmouth County Highway Department, 372 A.2d 1130 (N.J. 1977).

233 Isbell v. Maricopa County, 9 P.3d 311, 313 (Ariz. 2000).

234 Mich. Comp. Laws Ann. § 691.1402(1) (West 2000).

235 Wechsler v. Wayne County Road Commission, 546 N.W.2d 690, 695 (Mich. 1996).

236 Chaney v. Michigan Department of Transportation, 499 N.W.2d 29 (Mich. App. 1993).

237 Wechsler v. Wayne County Road Commission, 546 N.W.2d 690, 694 (Mich. 1996).

238 Bernier v. Board of County Road Com'rs for Ionia County, 581 F.Supp. 71, 76 (D.C.Mich. 1983).

239 N.J. Stat. Ann. § 59:4-6 (West 2001).

240 Costa v. Josey, 415 A.2d 337, 342 (Mich. 1980).

241 Costa v. Josey, 415 A.2d 337 (Mich. 1980).

242 Hunt v. City of High Point, 36 S.E.2d 694, 695 (N.C. 1946).

243 Fanning v. City of Laramie, 402 P.2d 460, 467 (Wyo. 1965).

244 Nixon v. Edwards, 264 P.2d 287, 293 (Wyo. 1953).

245 Wyo. Stat. Ann. § 1-39-20(a)(iii) (West 2000).

246 Romero v. Hoppal, 855 P.2d 366, 368 (Wyo. 1993).

247 Costa v. Josey, 415 A.2d 337 (Mich. 1980).

248 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 7 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

249 Id. at 7.

250 John C. Glennon, Roadway Defects and Tort Liability 18 (1996).

251 See generally, Federal Highway Administration, U.S. Department of Transportation, Manual on Uniform Traffic Control Devices (1983).

252 Breland C. Gowen, National Research Council, Manuals for Traffic Engineers: An Engineering Tool or Legal Weapon? The California Experience 9 (Transportation Research Circular, No. 361 1990).

253 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 7-8 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

254 Jolly v. Superior Court of Pinal County, 540 P.2d 658, 663 (Ariz. 1975).

255 See id.

256 Ariz. Rev. Stat. Ann. § 28-642(A) (West 2001).

257 See id. § 28-642(B).

258 See La. Rev. Stat. Ann. § 32:235 (West 2001).

259 Salvati v. Department of State Highways, 405 N.W.2d 856, 858 (Mich.1982).

260 See id.

261 Cox by Cox v. City of Dearborn Heights 534 N.W.2d 135, 139 (Mich. App. 1995).

262 See id.

263 N.J. Stat. Ann. § 59:4-6 (West 2001).

264 Kolitch v. Lindedahl, 475 A.2d 86, 88 (N.J. 1984).

265 N.J. Stat. Ann. § 59:4-2(b) (West 2001).

266 Kolitch v. Lindedahl, 475 A.2d 86, 90 (N.J. 1984).

267 Talian v. City of Charlotte, 389 S.E.2d 737, 740 (N.C. App. 1990).

268 Talian v. City of Charlotte, 389 S.E.2d 737 (N.C. App. 1990).

269 Wyo. Stat. Ann. § 31-5-112 (West 2000).

270 Fanning v. City of Laramie, 402 P.2d 460 (Wyo. 1965).

271 Id. at 466.

272 Randolph v. Gilpatrick Construction Company, Inc., 702 P.2d 142, 146 (Wyo. 1985).

273 See id.

274 John C. Glennon, Roadway Defects and Tort Liability 19 (1996).

275 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 8 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

276 See id.

277 See id.

278 John C. Glennon, Roadway Defects and Tort Liability 19 (1996).

279 James O. Pearson, Jr., Annotation, Liability, in Motor Vehicle-Related Cases, of Governmental Entity for Injury or Death Resulting from Failure to Repair Pothole in Surface of Highway or Street, 98 A.L.R. 3d 101 (1980) (available on Westlaw at 6, part 1).

280 Jay M. Zitter, Annotation, Admissibility of Evidence of Absence of Other Accidents or Injuries at Place Where Injury or Damage Occurred, 10 A.L.R. 5th 371 (1993) (available on Westlaw at 8, part 3).

281 Schwartau v. Miesmer, 142 A.2d 675, 681 (N.J. 1958).

282 Jay M. Zitter, Annotation, Admissibility of Evidence of Absence of Other Accidents or Injuries at Place Where Injury or Damage Occurred, 10 A.L.R. 5th 371 (1993) (available on Westlaw at 8, part 3).

283 Galati v. Lake Havasu City, 920 P.2d 11, 17 (Ariz. App. 1996).

284 See id.

285 La. Rev. Stat. Ann. § 9:2800(B) (West 2000).

286 See id. § 9:2800(C).

287 Susman v. City of New Orleans, 727 So.2d 1190, 1193 (La. App. 1999).

288 Jones v. Hawkins, 708 So.2d 749, 755 (La. App. 1998).

289 Hammons v. City of Tallulah, 705 So.2d 276, 281 (La. App. 1997).

290 Dawson v. City of Bogalusa, 669 So.2d 451, 453 (La. App. 1995).

291 Helgert v. City of New Orleans, 537 So.2d 394, 396. (La. App. 1988).

292 Mich. Comp. Laws Ann. § 691.1403 (West 2000).

293 Schroeder v. Department of Transportation, 405 N.W.2d 884 (Mich. App. 1987).

294 Id. at 886.

295 La Due v. Lebanon Tp., 192 N.W. 636, 637 (Mich. 1923).

296 Lamb v. Town Lake Tp., 140 N.W. 1009, 1010-1011 (Mich. 1913).

297 Meta v. Cherry Hill Tp., 377 A.2d 934, 937 (N.J. 1977).

298 See id.

299 Wymbs ex rel Wymbs v. Township of Wayne 750 A.2d 751, 759 (N.J. 2000).

300 N.C. Gen. Stat. § 160A-296 (West 2000).

301 Mosseller v. City of Asheville, 147 S.E.2d 558, 562 (N.C. 1966).

302 Id. at 561.

303 Fanning v. City of Laramie, 402 P.2d 460, 462 (Wyo. 1965).

304 See id.

305 John W. Strong et al., McCormick on Evidence § 107, at 164 (Student ed.) (5th ed. 1999).

306 See id. § 108, at 166.

307 See id. § 108, at 167.

308 See id. § 108, at 166.

309 See id. § 108, at 166.

310 See id. § 109, at 168.

311 See id. § 109, at 168-69.

312 See id. § 109, at 169.

313 Ariz. Rev. Stat. Ann. §§ 39-121 et seq. (West 2001), La. Rev. Stat. Ann. §§ 44:1 et seq. (West 2001), Mich. Comp. Laws Ann. §§ 15.231 et seq. (West 2000), N.J. Stat. Ann. §§ 47:1A-1 et seq. (West 2001), N.C. Gen. Stat. §§ 132-1 et seq. (West 2000), and Wyo. Stat. Ann. §§ 16-4-201 to 16-4-205 (West 2000).

314 Wyo. Stat. Ann. § 16-4-202(a) (West 2000).

315 Ariz. Rev. Stat. Ann. § 39-121.01(A)(2) (West 2001), La. Rev. Stat. Ann. § 44:1(A)(1) (West 2001), Mich. Comp. Laws Ann. § 15.232(d) (West 2000), N.J. Stat. Ann. § 47:1A-1.1 (West 2001), N.C. Gen. Stat. § 132-1(a) (West 2000), and Wyo. Stat. Ann. § 16-4-201(a)(iv) (West 2000).

316 Webb v. City of Shreveport, 371 So.2d 316, 320 (La. App. 1979).

317 Church of Scientology v. City of Phoenix Police Dept., 594 P.2d 1034, 1035 (Ariz. App. 1979).

318 Loigman v. Kimmelman, 505 A.2d 958, 966-967 (N.J. 1986).

319 Bolm v. Custodian of Records of Tucson Police Dept., 969 P.2d 200 (Ariz. App. 1998); Central Michigan University Supervisory-Technical Ass'n MEA/NEA v. Board of Trustees of Central Michigan University, 567 N.W.2d 696 (Mich. App. 1997).

320 Kent County Deputy Sheriff's Ass'n v. Kent County Sheriff, 605 N.W.2d 363 (Mich. App. 1999).

321 N.C. Gen. Stat. § 132-1.1(a) (West 2000).

322 Wyo. Stat. Ann. § 16-4-203(b)(v) (West 2000).

323 Mary Kay Kane, Civil Procedure in a Nutshell 128 (4th ed. 1996).

324 Id. at 129.

325 Fed. R. Civ. P. 26.

326 16 A.R.S. Rules Civ.Proc. 26 (West 2000), LSA-C.C.P. article 1422 (West 2000), MCR 2.302 (West 2000), N.J. R. Super. Tax Surr. Cts. Civil R. 4:10-1 (West 2000), Rule 26, N.C. Rules of Civil Procedure (West 2000), and Rule 26, W.R.C.P. (West 2001).

327 Mary Kay Kane, Civil Procedure in a Nutshell 129 (4th ed. 1996).

328 Williams v. State Farm Mut. Auto. Ins. Co., 312 S.E.2d 905, 907 (N.C. App. 1984).

329 See, for example, City of Phoenix v. Peterson, 462 P.2d 829 (Ariz. App. 1969), and Ulrich v. Ulrich, 366 P.2d 999, 1001 (Wyo. 1961).

330 16 A.R.S. Rules Civ.Proc. 34 (West 2000), LSA-C.C.P. article 1422 et seq. (West 2000), MCR 2.310 (West 2000), N.J. R. Super. Tax Surr. Cts. Civil R. 3:34-1 (West 2000), Rule 34, N.C. Rules of Civil Procedure (West 2000), and Rule 34, W.R.C.P. (West 2000).

331 See for example, 16 A.R.S. Rules Civ.Proc. 34(b) (West 2000), Rule 34(b), N.C. Rules of Civil Procedure (West 2000), and Rule 34(b), W.R.C.P. (West 2000).

332 Paul F. Rothstein, et al., Evidence - State and Federal Rules, 220 (3d ed. 1997).

333 See State ex rel. Corbin v. Weaver, 680 P.2d 833 (Ariz. App. 1984), Sonier v. Louisiana Power & Light Co., 272 So.2d 32 (La. App. 1973) and La.C.E. art. 509 (West 2001), Matter of Subpoena Duces Tecum to the Wayne County Prosecutor, 477 N.W.2d 412 (Mich. App. 1991), Payton v. New Jersey Turnpike Authority, 691 A.2d 321 (N.J. 1997), Industrotech Constructor, Inc. v. Duke University, 314 S.E.2d 272 (N.C. 1984), and W.R.C.P. 26(b)(3) (West 2001).

334 See for example, 16 A.R.S. Rules Civ.Proc. 26(b)(3) (West 2000), MCR 2.302(B)(3) (West 2000), Rule 26(b)(3), N.C. Rules of Civil Procedure (West 2000), and Rule 26(b)(3), W.R.C.P. (West 2000).

335 See for example, Zimmerman v. Superior Court In and For Maricopa County, 402 P.2d 212 (Ariz. 1965) and Jenkins v. Rainner, 350 A.2d 473 (N.J. 1976).

336 Longs Drug Stores v. Howe, 657 P.2d 412 (Ariz. 1983).

337 See for example, 16 A.R.S. Rules Civ.Proc. 26(b)(3) (West 2000), MCR 2.302(B)(3) (West 2000), Rule 26(b)(3), N.C. Rules of Civil Procedure (West 2000), and Rule 26(b)(3), W.R.C.P. (West 2000).

338 The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083, 1083 (1983).

339 Id. at 1083-1084.

340 Gerald Heller, The Important but Murky Law of the Self-Critical Analysis Privilege, 45- MAY Fed. Law. 51, 52 (1998).

341 Id. at 51.

342 See generally, Reichhold Chemicals, Inc. v. City of Pensacola, 157 F.R.D. 522.

343 See generally, Bredice v. Doctors Hospital, Inc., 51 F.R.D. 187.

344 See generally, University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 201, 110 S.Ct. 577, 589.

345 The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083, 1085 (1983).

346 Id. at 1084.

347 Jolly v. Superior Court of Pinal County, 540 P.2d 658, 662 (Ariz. 1975).

348 State ex rel. Corbin v. Weaver, 680 P.2d 833 (Ariz. App. 1984).

349 Id. at 840.

350 Gary J. Cohen, A Guide Through the Morass of the Self-Critical Analysis Privilege, Arizona Attorney, July 1999, at 38.

351 See id.

352 La. Rev. Stat. Ann. § 44:7 (West 2001).

353 See id. § 13:3715.3.

354 Smith v. Lincoln General Hosp., 605 So.2d 1347, 1348 (La. 1992).

355 Ostoin v. Waterford Tp. Police Dept., 471 N.W.2d 665 (Mich. App. 1991).

356 Wylie v. Mills, 478 A.2d 1273 (N.J. 1984).

357 Payton v. New Jersey Turnpike Authority, 691 A.2d 321, 331 (N.J. 1997).

358 Office of Policy, U.S. Department of Transportation, Highway Statistics 1998 IV-1 (1999).

359 Office of Highway Information Management, U.S. Department of Transportation,Our Nation's Highways: Selected Facts and Figures 38 (1996).

360 Southern Transp. Co. v. Yarnell In and For County of Maricopa, 890 P.2d 611, 615 (Ariz. 1995).

361 Martinolich v. Southern Pacific Transp. Co., 532 So.2d 435 (La. App. 1988).

362 Wiedeman v. Dixie Elec. Membership Corp., 627 So.2d 170, 173 (La. 1993) (#referring to 23 U.S.C. §§ 130, 144, and 152).

363 Mackie v. Grand Trunk Western R. Co., 544 N.W.2d 709 (Mich. App. 1996).

364 Id. at 712 (emphasis in original).

365 Turner v. Norfolk Southern Corp., 526 S.E.2d 666 (N.C. App. 2000).

366 Fed. R. Evid. 802.

367 Fed. R. Evid. 801(c).

368 Arthur Best, Evidence Mate: Relevancy, Hearsay, Character, and Impeachment1 (Student aid) (1995).

369 John W. Strong et al., McCormick on Evidence § 284, at 437 (Studented.) (5th ed. 1999).

370 See id. § 286, at 438.

371 See A.R.S. Rules of Evid., 803(8) (West 2000), La.C.E. art. 803(8) (West 2001), M.R.E., 803(8) (West 2000), N.J.R.E. 803(c)(8) (West 2001), N.C. Rules of Evid., 803(8) (West 2000), and Wyo. R. Evid. 803(8) (West 2001).

372 Fed. R. Evid. 803(8).

373 See A.R.S. Rules of Evid., 803(8) (West 2000), La.C.E. art. 803(8) (West 2001), N.C. Rules of Evid., 803(8) (West 2000), and Wyo. R. Evid. 803(8) (West 2001).

374 Davis v. Cessna Aircraft Corp., 893 P.2d 26 (Ariz. App. 1994).

375 See McRay v. Booker T. Washington Nursing Home, 711 So.2d 772, 776 (La. App. 1998); Green v. Connor 644 So.2d 618 (La. 1994).

376 Wyo. Stat. Ann. § 1-39-102(b) (West 2000).

377 La. Rev. Stat. Ann. § 9:2793.1(A) (West 2000).

378 Mich. Comp. Laws Ann. § 691.1407(2)(c) (West 2000).

379 See id.

380 Strater v. Borough of Runnemede, 147 A. 644 (N.J. 1929).

381 Dickey v. City of Flagstaff, 4 P.3d 965, 969 (Ariz. 1999).

382 Johnson v. City of Morgan City, 2000 WL 1871731, 3 (La. 2000).

383 Stanton v. City of Battle Creek, 603 N.W.2d 285, 290 (Mich. 1999).

384 McCormick v. Town of Thermopolis, 478 P.2d 67, 69 (Wyo. 1970).

385 John C. Glennon, Roadway Defects and Tort Liability 19 (1996).

386 See id.

387 Edgar Fuller & A. James Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437, 442 (1941).

388 Id. at 442-43.

389 Id. at 442.

390 David Minge, Governmental Immunity from Damage Actions in Wyoming, 7 Land & Water L. Rev. 229, 256 (1972) (quoting Ramirez v. City of Cheyenne, 34 Wyo. 67, 78 (1925)).

391 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 9 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

392 Tower Marine, Inc. v. City of New Brunswick, 420 A.2d 1029, 1033 (Mich. 1980).

393 Wyo. Stat. Ann. § 1-39-102(b) (West 2000).

394 Mich. Comp. Laws Ann. § 691.1407(1) (West 2000).

395 See id. § 691.1407(2).

396 Adam v. Sylvan Glynn Golf Course, 494 N.W.2d 791, 793 (Mich. App. 1992).

397 Mich. Comp. Laws Ann. § 691.1402 (West 2000).

398 McIntosh v. Department of Transportation, 594 N.W.2d 103 (Mich. App. 1999).

399 Nawrocki v. Macomb County Road Commission, 615 N.W.2d 702 (Mich. 2000).

400 Guthrie v. North Carolina State Ports Authority, 299 S.E.2d 618, 624 (N.C. 1983).

401 See id.

402 Steelman v. City of New Bern, 184 S.E.2d 239 (N.C. 1971).

403 See Hodges v. City of Charlotte, 200 S.E. 889 (N.C. 1939) and Hamilton v. Town of Hamlet, 78 S.E.2d 770 (N.C. 1953).

404 John C. Glennon, Roadway Defects and Tort Liability 20 (1996).

405 See id.

406 Russell M. Lewis, National Research Council, Practical Guidelines for Minimizing Tort Liability 9 (National Cooperative Research Program Synthesis of Highway Practice No. 106, 1983).

407 See id.

408 See id.

409 John C. Glennon, Roadway Defects and Tort Liability 20 (1996).

410 See id.

411 Richard O. Jones, National Research Council, Risk Management for Transportation Programs Employing Written Guidelines as Design and Performance Standards 7-8 (Legal Research Digest, No. 38 1997).

412 Ariz. Rev. Stat. Ann. § 12-820.01 (West 2000).

413 Warrington by Warrington v. Tempe Elementary School Dist. No. 3, 928 P.2d 673, 676 (Ariz. App. 1996).

414 Sabina v. Yavapai County Flood Control Dist., 993 P.2d 1130, 1134 (Ariz. App. 1999).

415 La. Rev. Stat. Ann. § 9:2798.1 (West 2001).

416 Rick v. State, Dept. of Transp. and Development, 630 So.2d 1271, 1276 (La. 1994).

417 See id.

418 Wood v. Collins, 725 So.2d 531, 531 (La. App. 1998).

419 Tower Marine, Inc. v. City of New Brunswick, 420 A.2d 1029, 1033 (N.J. 1980).

420 N.J. Stat. Ann. § 59:4-6 (West 2001).

421 See id. § 59:2-3.

422 Aebi v. Monmouth County Highway Dept., 372 A.2d 1130 (N.J. 1977).

423 Costa v. Josey, 415 A.2d 337 (N.J. 1980).

424 Id. at 343.

425 Ariz. Rev. Stat. Ann. § 12-820.03 (West 2000).

426 George E. Ward, Immune as Governmental Function or Liable as State Action: What's the Difference?, 1989 Det. Coll. L. Rev. 1367, 1373 (1989).

427 Nawrocki v. Macomb County Road Commission, 615 N.W.2d 702, 715 (Mich. 2000).

428 Mich. Comp. Laws Ann. § 691.1402(1) (West 2000).

429 Nawrocki v. Macomb County Road Commission, 615 N.W.2d 702, 716 (Mich. 2000).

430 N.J. Stat. Ann. § 59:2-1 (West 2001).

431 See id. § 59:4-2.

432 See id. § 59:4-4.

433 See id. § 59:4-5.

434 See id. § 59:4-7.

435 See id. § 59:4-6 cmt.

436 Wyo. Stat. Ann. § 1-39-20(a) (West 2000).

437 Romero v. Hoppal, 855 P.2d 366, 368 (Wyo. 1993).

438 Bibb v. Navajo Freight Lines, Inc. 79 S.Ct. 962, 964 (1959).

439 U.S. Const. amend. V.