The purpose of this document is to provide Washington’s local agencies a resource for implementing the Washington State Safety Management System. This system has been developed by local agency experts from jurisdictions all over the state. It incorporates all aspects of transportation including law enforcement, emergency services, and education, as well as engineering. This is a guide only. It does not constitute a legal mandate nor does it represent authority, delegate responsibility, or establish standards of good practice for highway engineering, maintenance, or management. Rather, it is a compilation of thoughts and recommendations created by a committee of professionals representing many — though not all — agencies from around the state of Washington. Its intent is to provide a guideline from which local agencies may each choose to manage their transportation system safety resources. By providing recommendations crafted to apply to local transportation system needs, the guide also seeks to assist local agencies in reducing the number and severity of collisions on their streets and roads. The complete context of safety management, as it applies to local streets and roads, includes all three safety elements of highway safety: the vehicle, the human (known as the traveller in the state Safety Management System (SMS)), and the roadway. Traditionally, local agencies have focused their safety efforts primarily on their infrastructure responsibilities. This is where they possess regulatory authority and responsibility as owners/operators of their transportation networks. Thus, they establish and implement policy on planning, development, construction, and maintenance of these networks. Although historically it has been within this realm that most agencies have focused their transportation safety improvement efforts, the SMS broadens the approach to transportation safety to incorporate the entire community of transportation safety stakeholders. It recognises that emergency services, law enforcement, and education are equal partners with engineering in providing comprehensive and efficient management of local agency safety resources. An SMS strengthens these efforts by integrating the engineering component of safety management with the law enforcement, education, and emergency services components. Through a collaborative process that emphasises routine communication and information-sharing, safety needs can be identified and the resources necessary to address them can be co-ordinated. Because of the importance of balancing the human and the vehicle elements of a local agency transportation system, the guide also recommends that all agencies consider the degree to which they can fund, facilitate, co-ordinate, and otherwise participate in all aspects of highway safety. Many local agencies are already implementing initiatives that do include human and vehicle elements. Examples include public education, neighbourhood traffic control programs, emergency response needs, and vehicle noise and weight enforcement programs. The Local Agency SMS Implementation Subcommittee, supported by the Highways and Local Programs Service Centre within the Washington State Department of Transportation (WSDOT), encourages all local agencies to utilise this document in the development and implementation of their transportation system safety policies. It is the opinion of the committee that consistent application of the principles herein will result in safer public roads and streets in the state of Washington. There are two significant, and potentially helpful, legal considerations that an agency should be aware of with respect to implementing its SMS. The first is the existence of a federal statute included in Title 23 of the United States Code regarding discovery, the investigation phase of a lawsuit that precedes trial. The second is the doctrine of “discretionary immunity.” Although neither of these provides immunity from suit, they do offer some protection in what can be gathered and used as evidence against agencies and when evidence may be used. Section 409, Title 23 of the US Code, Discovery and Admission as Evidence of Certain Reports and Surveys, addresses discovery and evidence (what can be admitted at trial) and states that “reports, surveys, schedules, lists, or data compiled or collected” for the purposes of establishing safety enhancement at potential accidents sites does not have to be produced in a discovery request and cannot be admitted into evidence at a trial to determine the agency’s negligence in a suit for damages. In other words, the information gathered is privileged. Although this does not make a local agency immune from suit concerning a collision at a particular location, for example, it does mean that the plaintiff will have to produce a different sort of evidence to prove their case. The plaintiff cannot use the agency’s own good faith efforts to solve a problem to prove that the agency was aware of the problem and therefore negligent. The reason for this is that no agency would develop safety programs and keep such lists or reports if the information collected could be used against the agency to establish the fact of negligence. Similarly in negligence cases, Evidence Rule 407 entitled Subsequent Remedial Measures is used in both state and federal courts. If a person trips and falls on a bad patch of sidewalk and the owner of the sidewalk repairs that patch after the accident and before trial, plaintiff cannot use the fact of the repair as evidence of or an admission of negligence on the part of the owner. The reason is again obvious: no one would make repairs if that act could be used against him or her. The evidence rules operate to encourage good behaviour by protecting corrective actions. The doctrine of “discretionary immunity” protects from suit certain acts on the part of governmental agencies and exists because “in an organised society there must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability.”* The Washington Supreme Court has held that government actions are immune from suit when four conditions are met: 1) The act complained of must involve a basic governmental policy, program, or decision; 2) The act complained of must be essential to the realisation of the policy, program, or decision; 3) The act requires the expertise or judgement of the agency involved; and 4) The agency involved has the authority or duty to take the challenged action. Under this doctrine, for example, courts have held that WSDOT’s collection of accident data for use in planning highway projects is a “discretionary” function immune from tort liability. These are very important and powerful protections that an agency needs to keep in mind in implementing its SMS. All agencies should consult with their legal counsel for further information and advice on how these and other statues and doctrines, as well as local statutes and ordinances, apply to an agency’s given circumstances. This manual is not intended to be legal advice and should not be interpreted or relied on as such advice; it cannot substitute for an agency’s consultation with its legal counsel. (A)
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