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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.

Getting Accident Reports

Most practitioners have no idea of the difficulty accessing something as fundamental as accident reports for a given location in a highway accident case. This is true even when the accident history is essential to a proper and complete analysis.

Transportation and traffic engineers in fact determine the need for a traffic signal at an intersection on the basis of several factors, among them gaps in cross-traffic and, most importantly, accident history.

Similarly, a concentration of collisions at a given section of highway provides evidence of an unsafe condition that repeatedly produces property damage, bodily injury and even death. Again, this concentration of collisions is demonstrated through the accident history for this location.

Because the accident history for a given location is critical evidence of a dangerous condition, a number of governmental entities are trying to shield themselves from liability for their mistakes by refusing to make accident reports for their roads available to plaintiffs, even though the reports are public records.

Over the past few years, these governmental entities have tried to use a federal statute–23 U.S.C. § 409–as a basis for denying plaintiffs and their attorneys access to these traffic collision reports and related information. The federal statute provides:

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-high crossings, pursuant to sections 130, 144, and 152, 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.

More in this in my next 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.