Governmental/Sovereign Immunity

Pt II – A Brief History of the Fight for Accident Reports

As the Supreme Court noted in Guillen, to construe § 409 to cover all facts and documents that ultimately end up in such federally mandated reports would go far beyond the congressional intent, and would hide otherwise discoverable information essential to supporting claims that could have been proven had there been no safety enhancement project:

[T]he text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies. Guillen, 537 U.S. at 146 (emphasis added).

Following Guillen, raw data, accident reports, and most other documents that were accessible by the public prior to the enactment by Congress of 23 U.S.C. § 152 back in 1973 are to still be provided to plaintiff’s counsel because, according to the U.S. Supreme Court, “the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had §152 funding never existed.” Guillen, 123 S.Ct. at 731. However, even after Guillen, argument as to the scope of 23 U.S.C. § 409 persists. Some municipalities continue to assert that Guillen authorizes them to withhold all raw data and information, including police accident reports and the accident history of a location, from citizens seeking this information in potential or current highway cases against governmental entities. This was, however, precisely the position taken by Defendant Pierce County in Guillen that the U.S. Supreme Court expressly rejected. As indicated above, this has resulted in some municipalities insisting that anyone seeking an accident history for a section of road must, as a condition precedent to receiving the accident reports,  ign a form promising that the accident reports will not be used in litigation against any governmental entity.

Getting Accident Reports – Part 2

We were last talking about getting accident reports, so I’ll continue where I left off….

The Washington State Patrol has a statutory duty to collect and compile accident reports. WSP is a public agency. See RCW 42.56.010(1). The accident reports are public recordsSee RCW 42.56.070. Both WSP and these accident reports are subject to the Public Records Act (see Chapter 42.56 RCW), which requires public agencies to make public records available to the public. Nevertheless, WSP, WSDOT, and a number of municipalities have refused to provide accident reports for a particular location unless the person seeking the reports signs a form promising that the records will not be used in litigation brought against any governmental entity. That promise not to sue, as a condition of accessing accident reports, has been repeatedly rejected by our trial courts. But the battle is not over.

I will discuss a brief history of the fight for accident reports in my next blog post.

Part 3 – Claims for Damages: “Substantial Compliance”

Before its amendment in 2009, RCW 4.92.100 stated that “With respect to the content of such claims, this section shall be liberally construed so that substantial compliance will be deemed satisfactory.” Similarly, RCW 4.96.010(1) (which was not amended in 2009) provides that “The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.”

Based on the language of these statutes, Washington courts required substantial compliance with the “content” requirements of RCW 4.92.100 and RCW 4.96.020. See Medina v. Public Utility Dist. No. 1, 147 Wn.2d 303, 53 P.3d 993 (2002); Reyes v. City of Renton, 121 Wn. App. 498, 86 P.3d 155 (2004). On the other hand, these cases required strict compliance with claim filing procedures on the basis that filing a claim is a condition precedent to commencing an action seeking damages from governmental entities. Medina v. Public Utility Dist. No. 1, supra; Reyes v. City of Renton, supra. As explained by the court in Reyes:

Although the claim filing statutory scheme authorizes substantial compliance with the laws specifying the content of the notice of claims, strict compliance is clearly emphasized with the filing procedures themselves. Failure to strictly comply with statutory filing requirements leads to dismissal of the action.  Reyes v. City of Renton, 121 Wn. App. at 502 (citations omitted).

The application of this strict compliance rule sometimes led to harsh results. For example, in the Medina case, the court affirmed the dismissal of a personal injury case brought by a motorist against a county public utility district on the basis that the he had failed to strictly comply with the 60-day waiting period between presentation of his tort claim to the utility district and the commencement of his action in the superior court. The 2009 amendments to the claim statutes overrule the strict compliance rules cases, and now provide that “[w]ith respect to the content of claims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory.” RCW 4.92.100(3); RCW 4.96.020(5) (emphasis added). Presumably, cases addressing what constitutes substantial compliance for purposes of the claim statutes still remain good law after the 2009 amendments. For example, in Renner v. City of Marysville, 145 Wn. App. 443, 187 P.3d 283 (2008), the court held that, for purposes of the claim-filing statutes for tort claims, the substantial compliance rule has two necessary conditions: first, there must be a sufficient bona fide attempt by the claimant to comply with the law even though the attempt may be defective in some particular, and, second, the attempt at compliance must actually accomplish the statutory purpose of the claim statutes, which is to give governmental entities sufficient notice to enable them to investigate the cause and character of the injury.

The Duty to Provide Safe Roads

The law is clear in Washington State: Our street and highway departments have a “duty to provide reasonably safe roads and this duty includes the duty to safeguard against an inherently dangerous or misleading condition.”

An intersection with a history of collisions suggests that the road is unreasonably hazardous.

What are some of these conditions?

  • Intersections with a history of collisions that show an obvious need of a traffic signal or signs, to bring order to streets that converge and result in conflict,
  • A steep embankment on a curve in need of a guardrail,
  • A lack of chevrons to warn of a sudden sharp curve, or
  • A cable median barrier on a 60-/70- mph highway that is wholly inadequate to redirect or even restrain errant cars to prevent innocent people from being hit head-on.

Important Practice Tip: Examine first-hand all aspects of the road where the collision occurred for design/operational problems before ever considering a settlement with a defendant driver that will destroy joint and several liability. Too often, I’m approached with the defendant’s $25K policy limits as an associating attorney’s “war chest” for a case against the State. Too late. Not to mention that $25K is a drop in the bucket in these very complex and expensive cases.