Chapter Seven - Findings, Conclusions, and Recommendations

Now all has been heard; here is the conclusion of the matter...
Ecclesiastes 12:13

The Road Safety Audit Program improves road safety. It originated in the United Kingdom in the 1980s, has since been used successfully in Australia and New Zealand, and has made some inroads in the United States. But because other road safety programs exist and because the fear of liability may deter the use of the RSAP, the RSAP must add value to a transportation entity and must withstand legal scrutiny in order for the program to realize its safety improvement potential in the United States. What follows are the findings, conclusions, and recommendations from analyzing the two questions presented--whether the RSAP adds value to an entity and whether it is legally defensible.

Findings

The Road Safety Audit Program is a Useful Safety Program

The Road Safety Audit Program utilizes an independent and qualified examiner or team of examiners to conduct an audit of the road project, in either or both of the conceptual and existing stages, with the objective of improving road safety for all road users. Audits done on roads that are in the conceptual stage are called Road Safety Audits and those that are done on existing roads are called Road Safety Audit Reviews. The examiner or team typically issues a report from the audit, which describes the safety status of the road and which can include recommendations and priorities for improving the road's safety.

The RSAP is focused on road safety and is not hindered by political or financial entanglements. It provides a tool for the decision-makers in the transportation entity that authorized it in that it can be used by the entity to improve the safety of the roads for which it is responsible.

A Legal Analysis Framework

A three-step analysis is pertinent in answering the question of whether the Road Safety Audit Program can be used to establish a transportation entity's liability. The analysis should proceed as follows.

Step One: Determine if the Entity Can Be Found Liable.

First, the local rural transportation entity may be afforded sovereign immunity. This means that the entity cannot be held liable for an injury to a road user arising from the entity's roads. Some states specifically define and limit the extent of this immunity through legislation known as tort claims acts while others limit the immunity through judicial action. Arizona, Michigan, New Jersey, and Wyoming have tort claims acts, while Louisiana and North Carolina follow the latter approach.

Some states modify the extent of the immunity based on the entity's insurance coverage. For instance, Michigan, and North Carolina withdraw the entity's immunity to the extent of the entity's insurance coverage.^ee

Other local non-transportation entities in Wyoming have similar limitations. Wyoming's local rural transportation entities are given broad immunity. Wyo. Stat. Ann. § 1-39-120 (West 2000).

In general, the local rural transportation entity is responsible for keeping its roads reasonably safe for the road user. Liability for a local rural transportation entity can arise for a breach of a duty to a road user such that the road user is harmed. But holding the entity liable for such breaches can be mitigated depending on the extent of the entity's advance notice of the defect. For instance, if the problem occurred without warning and immediately led to the plaintiff's harm, the entity will probably not be found liable. But if the entity knew or should have known about a defect yet failed to mitigate the defect, the entity will probably be held to have breached a duty to the plaintiff road user.

Three common duties of the local rural transportation entity exist. First, the entity typically has a duty to warn the road user of adverse road conditions such as emergencies or hazardous situations. Arizona, Louisiana, Michigan, and New Jersey entities have been held to have that duty. Second, the entity typically has a duty to maintain its roads. Arizona, Michigan, New Jersey, North Carolina, and Wyoming have this duty. Finally, the entity may have a duty to comply with its own internal standards as well as external guides such as the Manual of Uniform Traffic Control Devices. Arizona, Michigan, New Jersey, and North Carolina local rural transportation entities have been held to have this duty.

If the local rural transportation entity is not immune from suit and if the entity appears to have breached a duty to the road user, the next inquiry is whether a RSAP report that identifies the problem at the source of the plaintiff's harm can be used against the entity.

Step Two: Determine if the Road Safety Audit Program Can Be Used Against the Entity.

One strategy for the local rural transportation entity is to keep the RSAP report from being used against the entity by keeping it out of the plaintiff's hands. But the plaintiff may be able to obtain the report through the state's freedom of information act (FOIA) or through discovery in a litigation context.

FOIAs operate in general to provide the private citizen with public records and reports. But two common limitations to this general rule of accessibility exist. First, in states like Arizona and New Jersey, the private citizen is precluded from accessing those reports that would have a negative effect on the government's official duties. Second, if the citizen is a plaintiff in a lawsuit against the entity, the FOIA cannot be used by the plaintiff to obtain an otherwise inaccessible document. Michigan, North Carolina, and Wyoming recognize this limitation.

In a litigation setting, the rules of discovery might be used by the plaintiff to access the RSAP report. Rule 26 and Rule 34 (or their equivalents) are the procedural mechanisms whereby the parties can seek information from their opponent. But this right to discover the report is limited to non-privileged information. Therefore, if the local rural transportation entity being sued can find a privilege through which to withhold the RSAP report, the entity can probably preclude the plaintiff from accessing the report. All six states sampled in this report have the equivalence of Rules 26 and 34.

Three privileges may operate to keep the report out of the plaintiff's hands. The Work- Product Privilege, which is inherent in Rule 26 itself, stops a party from accessing material that is prepared in anticipation of litigation unless the requesting party is in substantial need of the material and cannot obtain the material without undue hardship. This privilege will probably not be of much assistance to the entity in trying to keep the report away from the plaintiff because, by definition, the RSAP report is prepared to assist the entity in improving its road safety, not in anticipation of litigation. All six states sampled in this report recognize the Work-Product Privilege.

The Self-Critical Analysis Privilege protects from discovery or admissibility those reports from an organization's internal investigations that are conducted with the goal of bettering the organization's operations. The idea behind the privilege is to encourage such reports; to allow them to be used against the organization would, it is believed, chill the conducting of such analyses. Of the six states sampled, Arizona, Louisiana, Michigan, and New Jersey recognize the privilege, though only Michigan has applied it in a transportation setting. This privilege appears more likely than the Work-Product Privilege to keep the report out of the plaintiff's hands, yet it is by no means a panacea.

Finally, the Federal-Aid Highway Program Privilege is a privilege created by Congress to protect materials prepared for the purpose of enhancing road safety in projects that may be implemented using Federal-Aid Highway Program funds. This is a boon to the desire to privilege the RSAP report because these funds contribute nearly 63 percent of all highway funding in the nation. Thus, if the report meets these criteria, it will most likely be privileged from discoverability and admissibility. Of the six states studied, Arizona, Louisiana, Michigan, and North Carolina had applied the privilege to keep such a report from the plaintiff.

Nevertheless, if a plaintiff obtains the report, the plaintiff must somehow offer the report into evidence. On its face, the report is inadmissible hearsay because it is being offered for the truth of what it says, without the ability of being cross-examined. An exception to this rule against hearsay is the public records exception. Under this exception, regularly kept public records can be offered into evidence because they are generally trustworthy. But these also may be subject to the various privileges and may only be admissible if they contain only facts--opinions detract from the report's presumed trustworthiness. All six of the sample states recognize the public records exception, yet Arizona, Louisiana, North Carolina, and Wyoming allow only factual findings to be admitted into evidence.

Step Three: Determine if Public Safety Outweighs the Entity's Negligence.

The first two steps are those that can be undertaken by a local rural transportation entity that has a litigation defense strategy, which is trying to keep the Road Safety Audit Program from disadvantaging the entity. But there is an alternative litigation defense approach that seeks instead to use the RSAP to the entity's advantage. In this "offensive defense" approach, the strengths of the RSAP are expounded.

First, the Road Safety Audit Program really is just one of many tools that the local rural transportation entity can use to fulfill the duties that it has under the law. It seems inconsistent for a state to impose on its transportation entities several duties in keeping the road safe, yet neuter the entity's attempt to improve road safety by using the safety evaluation report to establish the entity's liability.

Second, the law recognizes that governmental functions should be protected. Whether the Road Safety Audit Program is conducted on a road project before the road is built or after the road is built may have a marginal impact on immunity of the local rural transportation entity.

The negligence-gross negligence distinction recognizes that a local rural transportation entity should not be afforded immunity if it exercises gross negligence in carrying out its duties. This type of conduct by a transportation entity is probably rare. Thus, the distinction means that the pre- and post-construction decision split (i.e., the RSA / RSAR distinction) will have little effect on the entity's liability. The governmental-proprietary distinction will operate to remove whatever immunity the entity may have if the entity's decision is not one that is of a governmental nature. Because RSAP decisions concern the safety management of a road--which is most likely a governmental function--whether the decision occurs before or after construction will have little effect. The discretionary-ministerial distinction operates to remove any immunity from the entity where the decision is one in which little discretion is allowed. Here, the pre- and postconstruction decision split is of more significance in that several post-construction safety decisions may have little room for discretion.

Finally, various public policies reflected in the law bolster the entity's use of the RSAP. Some of these policies are rela ted directly to the transportation entity, while others are related only by analogy.

For example, in Arizona, Michigan, New Jersey, and Wyoming, statutes that govern the transportation entity indicate those states' interest in furthering road safety. They create duties for the transportation entity to keep the road safe for the traveling public and penalize the entity for failing to keep the road safe.

In addition, the law includes policies that recognize furthering the interest of the harmed plaintiff is not necessarily the best thing for society; in some situations, favoring a defendant is better. For instance, in product liability litigation, the plaintiff cannot use evidence that a newer version of the allegedly harmful product has a safety feature. The reason for this rule is to encourage manufacturers to improve their products without fear of the improvement being used against them. The privilege against self-incrimination is another policy that favors the defendant's interest.

It follows then that the "offensive defense" approach by the defendant entity should be the primary approach. It has solid legal and policy underpinnings and proclaims the fact that the entity is taking a proactive role in addressing road safety.

Conclusions

The Road Safety Audit Program Adds Value to a Transportation Entity

The Road Safety Audit Program adds value to the transportation entity in four ways. First, the RSAP provides a significant step toward improving road safety: its focus is to identify road safety deficiencies with the objective of empowering the decision-maker with information to mitigate the deficiencies. Thus, the RSAP can help the entity achieve the overarching public policy goal of improving road safety.

Second, the RSAP provides an objective tool for the transportation entity's decisionmaker to use in managing the entity's transportation system. The objectivity lies in the program's focus on safety and independence of the project's examiner. The utility of the tool is found in the report that succinctly assesses the road's safety and which may provide recommendations and priorities for addressing any safety deficiencies.

Third, the RSAP differs from existing road safety programs. It can be used in a proactive and a reactive approach to addressing safety, whereas the existing road safety programs focus primarily on the reactive approach. The RSAP is a simple road safety tool; it has few steps and focuses only on safety. Other programs have manifold steps and are burdened by other concerns such funding, statistical analyses, and educational programs. Another difference is the RSAP's flexibility. In contrast with existing systems that emphasize the spot system, the RSAP can be used in a specific location or it can be used in a project that covers the entire road system.

Fourth, the RSAP is compatible with existing systems. Although the RSAP can improve road safety as a stand-alone program, it can be used in conjunction with (or as a tool within) existing road safety systems if the entity should so desire.

The Key Legal Strengths and Weaknesses of the Road Safety Audit Program

Legal Strengths

The rules of discovery and evidence favor the transportation entity in that they tend to operate to protect the report from being accessed, discovered, and admitted into evidence. In particular, the Federal-Aid Highway Program Privilege is a stronghold for the Road Safety Audit Program. The prevalence of Federal-Aid projects indicate that the privilege could be a significant deterrence to the plaintiff's accessing the RSAP report.

As a class, the legal distinctions which otherwise operate to remove a governmental entity from the protection of immunity, such as the negligence-gross negligence, governmentalproprietary, and discretionary-ministerial distinctions have little impact on the decisions arising out of a Road Safety Audit Program. They indicate that the decisions and actions evidenced in the RSAP report probably will be protected. Moreover, Federal or state legislation that mandates RSAP actions probably will further ensconce the RSAP as an immune activity.

Legal Weaknesses

Absent all policy and legal protections, a report, which recognizes a safety issue that contributed to a victim's harm is, on its face, a "smoking gun." By itself, the report shows that the transportation entity knew of a defect in the road that later was the location of an accident, which led to the plaintiff's harm.

The discretionary-ministerial distinction poses the greatest threat to the entity's immunity. If a decision arising out of a Road Safety Audit Program is made that rejects a safety fix when the decision did not command that extent of discretion, the decision will probably be viewed as ministerial and therefore not protected.

Key Policy Strengths and Weaknesses of the Road Safety Audit Program

Policy Strengths

The strongest policy for the Road Safety Audit Program is that it furthers the overarching public interest in improving road safety. Echoes of this policy--which is inherent in transportation engineering--abound in the statutes and judicial opinions, including those of the United States Supreme Court.

In addition, in using the Road Safety Audit Program, the transportation entity is merely fulfilling its legal duties. A policy which allows the entity's use of the RSAP to be used to establish the entity's liability is not only inconsistent--it chills the use of a valuable safety device.

Policy Weaknesses

No public policies were found to have cut against the transportation entity's use of the Road Safety Audit Program.^ff However, an entity's use of the "defensive" defense approach in litigation carries a negative public policy implication if the entity tries to hide the report by using an exception to the Freedom of Information Act. The public policy of allowing the private citizen to have access to governmental information and records is important in a republic form of government. It should not be discarded lightly.

Recommendations

A Statute for the Wary

Though significant legislative and judicial postures favor the protection of the transportation entity in a dispute arising from a Road Safety Audit Program, a state may desire to further protect its transportation entities in litigation. In such a case, the following statute is recommended. It is modeled after the federal statute granting the Federal-Aid Highway Program Privilege.⁴⁴⁰

"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 or for the purpose of developing any highway safety construction improvement project shall not be subject to discovery or admitted into evidence in any 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."

While the mere use of the RSAP is coherent with public policy, allowing any governmental entity to escape from liability for sovereign immunity reasons contravenes the public policy that recognizes the plaintiff's right to be compensated for harm done by the defendant. This of course is the primary criticism of sovereign immunity.

Recommendations for Further Study

The question of whether the RSAP report can be used to establish a transportation entity's liability requires a complex answer dependent on variables such as the entity's immunity and the rules of discovery and evidence, among others. Also, because of the variations in what the report might contain along with creativity of lawyers adjudicating a case in which the Road Safety Audit Program is at issue, several issues were left out of this study necessarily. Accordingly, further study into the following issues would be helpful in gathering a more robust answer to the questions of the efficacy of the Road Safety Audit Program and the legal questions it presents.

First, further research regarding the level of expertise required to perform a Road Safety Audit or Road Safety Audit Review would be helpful in analyzing credibility of the audit and would be useful in the entity's hiring and budgeting decisions. Related research might be performed to analyze whether a certification or licensing program for RSAP auditors would be appropriate.

Second, a study about whether the RSAP report could be used to establish the entity's admission that its road was dangerous through the doctrine of "subsequent remedial measures" would support this study. The doctrine of subsequent remedial measures deals with the admissibility of evidence of changes made to a product after an accident. The plaintiff's legal theory is that by making the changes the entity "admits" the danger in the prior version of the road. The scope of this report on the other hand is the admissibility of evidence (i.e., the RSAP Report) to show the road entity's awareness of a problem before an accident.

Third, a study of the extent of the liability of transportation entity employees or consultants who are responsible for an audit or are identified in an audit would be worthwhile. The liability of governmental employees often is specifically considered in the tort claims acts. Questions about the duty of care that the auditor would owe to the entity and about what effect, if any, the auditor's disclaimer would have on his or her liability--or the entity's liability for that matter--would also be of interest.

Fourth, a study of the state or local entity being sued in federal court--as opposed to state court--would be worthy. Questions as to which law applies and to which court has jurisdiction would abound in that study. Likewise, whether the Road Safety Audit Program could be used against the Federal Highway Administration either in a state court or in a federal court would be an interesting study.

All Levels of Transportation Entities Can Benefit from the Road Safety Audit Program

The analysis and findings concerning the value of the RSAP were performed without discriminating between levels of transportation entities. Thus, the research showing the RSAP's value is applicable to all levels of transportation entity--federal, state, and local.

On the other hand, the legal analysis emphasized the local transportation agency. This was done partly because the law recognizes a distinction between federal, state, and local governments, but primarily because of the significance and vulnerabilities of the local rural transportation entity. The legal analysis only considered laws of six states, but the legal analysis framework is applicable to all levels of transportation entities, in all states. All levels of transportation entities, in all 50 states, when analyzing whether the RSAP can be used to establish the entity's liability, can approach the question using the three-step framework described above.

Simply put, transportation entities should use the RSAP because it is a useful road safety tool and because it is legally defensible. It can be used by itself to improve road safety or it can be used in conjunction with existing road safety systems. The risk that the report may be used to establish the entity's liability also should not deter the entity from using the RSAP. Substantial legal doctrines operate to encourage use of the RSAP and public policy is on the side of the transportation entity that uses it.

Summary

Two questions must be addressed in an analysis of whether the Road Safety Audit Program should be implemented by a transportation entity--whether the RSAP adds value to the entity and whether the RSAP is legally defensible. This study answers both of these questions in the positive.

A deeper issue is whether the public policy of improving road safety for all road users outweighs the competing policy favoring the plaintiff's redress of his or her harm. Approaching the issue from a utilitarian perspective, the public policy of improving road safety for all road users--favoring the many over the individual--must reign supreme over the competing policy favoring the plaintiff's redress of his or her harm that favors the individual over the many.

It follows that a combination of the utility of the RSAP, the fact that it has solid legal grounds, and overwhelming public policy argument of improving road safety creates solid support for using the RSAP. Therefore, the Road Safety Audit Program should be implemented by the transportation entity. There no longer is an excuse.

440 23 U.S.C. § 409 (2000).