relating to the use of 23 U.S.C. § 407 and its protections of safety data and reports.

The Agency Followed the Rules

Even though federal and local guidance is frequently aspirational or as some courts have described it, “a suggestion,” the agency can defend its actions, such as selecting a particular treatment at a particular location, choosing to install (or not) install a guardrail, or choosing a specific shoulder width, by producing evidence of its familiarity with that guidance, and evidence of its decision-making process. This theme was used in the Dahl v. State case,¹¹⁹ discussed supra.

Prioritization Plan

The agency reasonably developed a plan to fund needed work. An agency can base its defense of a claim on a plan for prioritization. The plan is used as evidence to show that the state acted reasonably in making a plan to improve its road system, and that systematic improvements (rather than spot improvements) benefit the transportation system as a whole. This theme and analysis was used in the Avellaneda v. State,¹²⁰ discussed supra.

A Safe Road Can Be Made Safer

A safe road can be made safer. This theme can be developed by eliciting testimony of compliance with generally accepted industry guidelines and explaining incremental steps that were taken by the agency to improve the location, without first spending large segments of its budget. This theme was used in the Ford v. City of Los Angeles case, discussed supra and infra.

VI. CASE STUDY

Detailed information relating to Ford v. City of Los Angeles,¹²¹ supra, is provided to illustrate the city’s use of crash history, engineering studies, and protected data, along with the attendant statutory protections related to the data, in defending a serious claim. The reported case as well as the briefs of appellant and respondent were reviewed.

Plaintiff Teanna Ford, a 15-year-old high school student, was on her way to school when she was struck by a vehicle as she walked across a crosswalk at the intersection of Slauson Avenue and 11th Street in Los Angeles, Cal. Ford sued the city of Los Angeles, among others, claiming that the crosswalk was in a dangerous condition due to the lack of traffic signal at the intersection.

The crash occurred in 2012, a suit was filed in 2014, and the case was tried to a jury in 2018. The jury found in favor of the city, and the plaintiff appealed.

A. Summary of the Allegations and Evidence

There are two lanes of traffic in each direction on Slauson Street. The lanes of traffic were separated by a 12-foot-wide painted median. The speed limit on Slauson was 35 miles per hour. Approximately 28,000 vehicles traveled through the intersection on an average day. The road was described as a “perfectly straight” road with good visibility. A pedestrian could see approaching cars and determine which lanes the cars were traveling in. Pavement markings and signing indicating a pedestrian crossing ahead provided notice to drivers that they were approaching a crosswalk. The city used the theme of “making a safe intersection safer” at trial, arguing that the intersection was in compliance with generally accepted guidance and that the improvements made after the crash enhanced the safety of an already safe crossing.

Ford used the crosswalk frequently and had traveled it without event dozens and possibly hundreds of times before this accident. The evidence conflicted as to whether plaintiff had looked both ways before entering the crosswalk, but it was not disputed that she was partially across the road when she was struck by a vehicle.

The city claimed that both Ford and the driver of the vehicle who struck her, David Trapp, were negligent and inattentive to traffic. Trapp and Ford had unobstructed views of each other.

A previous accident occurred at this location in 2007, when two pedestrians were struck by a vehicle in the crosswalk. One of those pedestrians died as result of injuries incurred in the crash. After the 2007 crash, the city conducted an engineering study of the location and determined that the intersection should be improved. Another study evaluated the viability and usefulness of a “smart” pedestrian device which would have provided additional warning of the area for motorists. The criteria for that device were met, but before that device was installed, the city determined that the location also met the criteria for a signal. Based on the studies, the city engineer determined that a signal would be more appropriate and provide more value to the intersection than the smart pedestrian device and made the decision to install a traffic signal instead of the other device.

The city applied for federal funding through the Highway Safety Improvement Program (HSIP) to assist it in paying for the traffic signal in 2008. HSIP funding opportunities require the applicant to complete a form which mandated following: the identification of a “problem” to be remedied; the reasons funding was requested; the proposed solution to “the problem”; the connection between the problem and the proposed solution; and the reason for the selection of the location for improvement. In its application the city stated:

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¹¹⁹ 820 N.Y.S.2d 729 (slip op., 2006).

¹²⁰ 273 P.3d 477 (Wash. Ct. App. 2012).

¹²¹ 47 Cal. App. 5th 277 (Ct. App. 2nd District 2020).

At trial, Ford sought to use the application for funding as evidence that the city had notice of the dangerous condition of the intersection and as proof that the intersection was dangerous according to their own documents. The city filed a motion to exclude any evidence relating to the application, which was granted by the court.

The city was able to obtain HSIP funding, and was informed it had been awarded funding in 2008, Although the signal had not been activated at the time the Ford incident occurred in 2012, it was in place. The city’s engineer testified that the time frame was not unusual, in that design plans had to be drawn, environmental clearances issued, right of way acquired, and authorization from the state had to be obtained. After those steps occurred in 2009 and 2010, construction plans were drawn in 2011 and the project let for bid later that year. The project, which included six turn signals at various nearby locations for cost efficiency, was awarded in 2012 and construction began immediately.

The city’s expert witness was a traffic engineer with 53 years of experience in the field, Dave Royer. Royer testified that the road was not dangerous, although a safe road can always be made safer. He testified that he based his conclusion on crash history, visibility from the perspective of both the driver and pedestrian, a field visit, and his years of experience in the traffic engineering field. Royer testified that a reasonable pedestrian can safely cross the intersection in segments, as there were pedestrian islands between the lanes. Royer also testified that the reasonable pedestrian would make eye contact with drivers who are using the road to ensure that the pedestrian had been seen by the motorist.

Ford’s expert, Ed Ruzak, testified that the signage at the intersection exceeded the requirements of California’s version of the MUTCD and that neither Ford nor Trapp’s vision was obscured by anything as the accident sequence developed. Both also testified that reasonable pedestrians look both ways before crossing a road and continue to look for traffic as they continue on their path across the road. Both agreed that most pedestrian accidents occur due to inattention.¹²³

Ruzak, however, testified that the intersection was dangerous because it was close to another intersection, the crosswalk was 68 feet wide, there were very gaps in traffic for pedestrians to cross, and while the speed limit was 35 miles per hour in the area, traffic drove at a higher speed.¹²⁴

Other Factors

Multiple evidentiary factors likely affected the outcome of this case, the most significant being that Ford’s expert witness, who testified that the crosswalk was in a dangerous condition, was impeached with previous testimony regarding a similar location, where he had testified that a unmarked crosswalk was not dangerous. That testimony was used to discredit him and his testimony.¹²⁵

Legal Issues and Appellate Ruling

The trial court did not allow Ford to use the application for HSIP funds as evidence in the trial. Ford argued that the city had “opened the door” to using the evidence when it mentioned that federal funding was applied for and obtained for the signal, but the court did not allow the application to be used or mentioned throughout the trial.

Ford made the argument on appeal that the application was not, as required by the language of the statute, a “report, surveys, schedules, lists, or data” as it was merely an application for funding, rather than a report or list. The city argued in response that the form of the document was not significant, citing Carson v. CBX Transp. Inc., where the court rejected a “hyper-technical” reading of federal law¹²⁶ and Long v. State,¹²⁷ where the court held that the proper inquiry was the purpose for which the document was created, rather than the form it was kept in.

The city argued that the purpose of 23 U.S.C. § 407 is to encourage public safety, by providing agencies with the assurance that efforts to obtain funding to address areas that need improvement will not be used against them in litigation.

In its ruling, the appellate court referred to Pierce Cnty.,¹²⁸ supra, explaining that the intent of the statute was to encourage the practice of protecting documents and studies that are part of the federal recordkeeping requirements from being used as a tool against the government in litigation.

The court noted that “[i]t is not the role of the courts to decide that the search for truth in civil suits is more important than the decision by Congress to make privileged an application for federal safety funds . . . a privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding.”¹²⁹

Practice note: The Ford case is helpful to the practitioner as it provides detail on the use of data, an illustration of the use of experts (and pitfalls of using experts), as well as the appropriate use of federal law in the defense of a dangerous condition claim. It should be noted that the manner in which arguments are framed, the education and experience of the witnesses and counsel, as well as the reasonableness of the actions of the parties are important factors in the successful defense of a claim.

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¹²² Brief for the Appellant at 10, Ford v. City of Los Angeles, 47 Cal. App. 5th 277 (BC545985).

¹²³ Brief for the Respondent at 8, Ford v. City of Los Angeles, 47 Cal. App. 5th 277 (Ct. App. 2nd District 2020) (BC545985).

¹²⁴ Id.

¹²⁵ Id. at 9.

¹²⁶ 734 S.E.2d 148 (S.C. 2012).

¹²⁷ 916 So. 2d 87 (La. 2005).

¹²⁸ 123 S. Ct. 720 (2003).

¹²⁹ 47 Cal. App. 5th 277 (Ct. App. 2nd District 2020) at 286.