# Petition for Writ of Certiorari — Louisiana Department of Transportation and Development v. Rouyea (No. 06-80)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

Supreme VOUT, U.5. ween:
FILED

In The Vir Ge Ur int CLERK
Supreme Court of the Anited States

e

STATE OF LOUISIANA, through the
DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT,

Petitioner,
vs.

ALBERT ROUYEA, ET AL.,
Respondents.

¢

On Petition For Writ Of Certiorari To The
Supreme Court Of The State Of Louisiana

+

PETITION FOR WRIT OF CERTIORARI
*

CHARLES C. FOTI, JR.
Attorney General of the State of Louisiana
By
STACEY MOAK
Special Assistant Attorney General
Counsel of Record
DAVID E. COOLEY, JR.
P.O. Box 77651
Baton Rouge, Louisiana 70879-7651
Telephone (225) 751-6300
Facsimile (225) 751-6301

JOHN CLAIBORNE YOUNG
Chief Counsel,
Louisiana State Office of Risk Management s
P.O. Box 91106
Baton Rouge, Louisiana 70821-9106
Telephone (225) 219-0184
Facsimile (225) 342-8473

Attorneys for Petitioner the State of Loutsiana,
through the Department of Transportation
and Development

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i

~~
QUESTIONS PRESENTED FOR REVIEW

1) May a state court ignore the federal legislative
prohibition embodied in 23 U.S.C. § 409, regarding the
discovery of, admission as evidence, or consideration for
other purposes of data compiled pursuant to the purposes
of the Highway Safety Act, set forth in 23 U.S.C. § 130,
144, and 152, by allowing the plaintiff to introduce into
evidence the Department of Transportations and Devel-
opment’s “Highway Needs and Priorities” information?

2) Is information compiled pursuant to the purposes
of the Highway Safety..Act, but before the passage of 23
U.S.C. § 409, subject to the federal statutory prohibition
regarding its discovery, admission as evidence, or consid-
eration for other purposes in any action for damages?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. i
"FABLE OF Cay cere setetsaeilacdvecbocs cavessdvevceseseees ii
TABLE OF AUER RII MM iticdecesecssscsisenssecesercesecosseee iv
CITATIONS OF OPINIONS AND ORDERS EN-

THRICE TIN Eras ee eaee le daindad caer cbeoeteccnncececgesccesees 1
STATEMENT OF BASIS FOR SUPREME COURT

JURISDICTION ............ Re isc avcccteeess 1
RULE 10 CONSIDERATIONS AND 28 U.S.C. § 1257... 1
FACTS TN "FRG Glee vc arcestebeceeenisccciccnsnsveceseccensesesveees 6
ARGUMENT ON ASSIGNMENT OF ERROR.............. 10
APPENDICES
Rouyea, et al. v. Louisiana DOTD, et al., 2004-1830

(La. App. 1 Cir. 11/4/2005)................ ee App. 1
District Court Final Judgment of Trial on the

OT itw, iss sasoxsssser aes agatanettersceansesecesees App. 5
District Court’s Reasons for Judgment....................... App. 8
Rouyea, et al. v. Louisiana DOTD, et al., 2005-2487

(Lin. GEE TIBI secs ae seein sesacveccese ser App. 15
Excerpts from Defendant/Appellant’s Brief filed by

the State of Louisiana, through the Department

of Transportation and Development ..................... App. 17

Excerpts from Application for Supervisory Writs
and Relief filed by the State of Louisiana,
through the Department of Transportation and
Level: ss<ciccnaksdschasendsmatNes.« sdiinesnievvenseeses App. 22

iil

TABLE OF CONTENTS -— Continued

Page
UNITED STATES CODE (STATUTES)
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BP eee dice shadiintsniboxenttegteciascsudicodiaankiaee App. 56
a Le NES : : SOR Oee NUT e OMEN EN Sr oR UIEE ti Comte k App. 57
CODE OF FEDERAL REGULATIONS
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A Wa Se St iviveseseahadersenteccince cia nie ne App. 66
SE CPE SUES iiiksce ka App. 66
es FE i cercasachincsilaictiainnnitaen chat eaee App. 68

eer Cee I i ec ee App.

iv

TABLE OF AUTHORITIES
Page
CASES

Claspill v. Missouri Pacific R. Co., 793 S.W.2d 139
(Mo. 1990), certiorari denied, 498 U.S. 984, 111
S.C; SAF, TED Ti Bek GOO (IGG) ov isn scencsivciessesesscesacvcese 5

Long v. State ex rel. Dept. of Transp. and Develop-
ment, 2004-0485 (La. 6/29/05); 916 So.2d 87 ............ 5, 18

Perkins v. Ohio Dept. of Transp., Ohio App. 10 Dist.
1989, 584 N.E.2d 794, 65 Ohio App.3d 487, cause
dismissed, 566 N.E.2d 673, 57 Ohio St.3d 612,
rehearing denied, 570 N.E.2d 281, 58 Ohio St.3d

Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct.
720, 154 LB 2d CIO (2OGS).....5cccccccccocseseccossovaseseess passim

Thornhill v. State Dept. of Transp. and Develop-
ment, 95-1946; 676 So.2d 799, (La. App. 1 Cir.
6/28/96) writ denied by, Riley v. State Through
Dept. of Transp. And Development, 96-2014; 683
So.2d 272 (La. 11/8/96), and writ denied by,
Riley v. State Through Dept. of Transp. and De-
velopment, 96-2021, 683 So.2d 272 (La. 11/8/96).......... 17

U.S. ex rel. Herge v. Commonwealth of Pa., 89
Fe. re ER ee SOD iiesnccncsnnbicbuppecncernpavenbainesatien 2

Vega v. State, 10 Misc.3d 822, 804 N.Y.S.2d 229,
2005 WL 3070794 (N.Y. Ct. Cl., Oct. 13, 2005)....... 19, 20

Walden v. Department of Transp., 27 P.3d 297 (Ak.
pS OES eT SE Sa ROR See TRICO DIE DER PANE RES eT ZO

Wiedeman v. Dixie Elec. Membership Corp., 627 So.
BE Se Rs Si ccc ipkisbes avidin ntadasdintecneinisaciinges 4,5

TABLE OF AUTHORITIES — Continued

Page
UNITED STATES CODE (STATUTES)
DF IE TE IE pacndnciteiinsdosnkigeiribuadstestnusisandiesomines 10, 15
BO SEs MUU detiintcepnixscpedvacsneeistédetabicnnckt aetna passim
MUSG (A 4, 12, 13, 14, 16
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CODE OF FEDERAL REGULATIONS
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ee RE UD os ssinvicdco pha odo eedandoczn Hedcccibatgeaumiinad enaeens 15
23 C.F.R. § D245 .....scscssessonorsorscrestsnsecesssenssessnesecncesees cceiiaaby 15
Ee Rv rsish cick dct nian tac enki da ad 15, 16
Se RRL PN BA va dictansecdidicacectician Vandaniedesdeiosdin sie es 16
ee AcE UE Bt cece hticavanceddicecdaabcusnd, cdots dake 16
RULES OF UNITED STATES SUPREME COURT
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NE PU pti vedadsods siicotetoiiketedetntetintiaes cst ene 1

SE 8 Ree ian ar Nees Se PIAS ANU MOR nee Oe es 1

1

CITATIONS OF OPINIONS AND
ORDERS ENTERED IN THE CASE

Rouyea, et al. v. Louisiana DOTD, et al., 2004 CA 1830
(La. App. 1 Cir. 11/4/2005)

Rouyea, et al. v. Louisiana DOTD, et al., 2005-C-2487 (La.
4/17/2006)

¢

STATEMENT OF BASIS FOR
SUPREME COURT JURISDICTION

On November 4, 2005, the Louisiana Court of Appeal
for the First Circuit rendered its opinion (App. 1).

On December 9, 2005, DOTD timely filed an applica-
tion for a writ of certiorari and/or review with the Louisi-
ana Supreme Court (App. 22), the court of last resort in
the state. On April 17, 2006, the Louisiana Supreme Court
entered an order denying the writ application and refused
to exercise its supervisory jurisdiction. (App. 15).

The present petition is timely filed under 28 U.S.C.
§ 2101 and under Rule 13.1 of this Court. This Court has
jurisdiction under 28 U.S.C. § 1257 and under Rule 10(b)
and (c) of this Court.

¢

RULE 10 CONSIDERATIONS AND 28 U.S.C. § 1257
28 U.S.C. § 1257(a) provides that:

“Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court
by writ of certiorari where the validity of a treaty

2

or statute of United States is drawn in ques-
tion or where the validity of a statute of any
State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or
laws of the United States, or where any title,
right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or
statutes of, or any commission held or authority
exercised under, the United States.

The Louisiana Supreme Court, the highest court in
the state, refused to grant a writ to review a trial judge’s
decision, which was upheld by an intermediate appellate
court, and denied the State of Louisiana, through its De-
partment of Transportation and Development (“DOTD”), a
defendant in this personal injury accident, the benefit of a
federal statute that barred the discovery and use at trial of
certain evidence that the state compiled and published
pursuant to a federal highway safety program. This
evidence was an important factor (as stated by the trial
court) in the adverse judgment rendered against DOTD.

This Honorable Court’s Rule 10 sets out considera-
tions governing review on certiorari. Rule 10(c) is applica-
ble to the case sub judice in that the Louisiana Supreme
Court has decided an important question of federal law in
a way that conflicts with relevant decisions of this Court,
i.e., Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720,
154 L.Ed.2d 610 (2003).

In U.S. ex rel. Herge v. Com. of Pa., 89 F.Supp. 636
(D.C. Pa. 1950), the court stated that:

“It is a well-established principle that before the
Supreme Court will review a decision of a state

—

3

court, it must affirmatively appear from the re-
cord that the federal question was presented to
the highest court of the state having jurisdiction,
and that its decision of the federal question was
necessary to its determination of the cause.
Where the decision of the state court might have
been either on a state ground or on a federal
ground, and the state ground is sufficient to sus-
tain the judgment, the Supreme Court of the
United States will not undertake to review the
state decision. It is likewise well settled that if
the independent ground were not a substantial
or a sufficient one, it will be presumed that the
state court based its judgment on the law raising
the federal question, and the Supreme Court will
then take jurisdiction. Williams v. Kaiser, 323
U.S. 471, 477, 65 S.Ct. 363, 89 L.Ed. 398.”

From the beginning of this case, DOTD raised the
issue, and asserted that the protection of 23 U.S.C. § 409
should be applied to the “Highway Needs and Priorities”
publication, which was introduced into evidence over the
strenuous objections of DOTD’s counsel. Nevertheless, the
trial court admitted the publication into evidence and
relied upon it for its decision. DOTD cited this action as an
error by the trial court and addressed it in both an appeal
to the Louisiana Court of Appeal, First Circuit, and a writ
application to the Louisiana Supreme Court, to no avail.
This issue is one of importance in the administration of
the Federal Hazard Elimination Program and, if allowed
to stand, may frustrate the implementation of that pro-

gram.

’ Plaintiff’s Exhibit P-31. Document was admitted over objection of
defense counsel on the grounds that is was protected by 23 U.S.C § 409
(Tr. p. 709 and 727).

4

Not only have the courts of the state of Louisiana
ignored the recent ruling of this court in Gullien, supra,
but they have ignored the Louisiana Supreme Court’s
decision in Wiedeman v. Dixie Elec. Membership Corp., 627
So.2d 170, 173 (La.1993), wherein the court, although
taking an overly narrow view of the protections of 23
U.S.C. § 409’ nevertheless was correct when it held at
page 173 that:

To recapitulate, the following are discover-
able and admissible:

* * *

The following are not:

(1) surveys to identify hazardous railroad cross-
ings and improve them (§ 130);

(2) applications for federal assistance in replac-
ing or rehabilitating highway bridges (§ 144);

(3) studies assigning priorities and schedules of
projects for highway improvement (§ 152); and,

* In Gullien, supra, Justice Thomas explained that the proper
scope of § 409 engendered a great deal of confusion among circuit and
state courts:

“Some state courts, for example, concluded that § 409 ad-
dressed only the admissibility of relevant documents at trial
and did not apply to pretrial discovery. According to these
courts, although information compiled for § 152 purposes
would be inadmissible at trial, it nevertheless remained
subject to discovery ... Other state courts reasoned that
"§ 409 protected only materials actually generated by a gov-
ernmental agency for § 152 purposes, and documents col-
lected by that agency to prepare its §152 funding
application remained both admissible and discoverable. See
e.g. Wiedeman v. Dixie Elec.”

+)

(4) other compilations made for developing high-

way safety construction projects which would
utilize Federal-aid funds (§ 409).

The “Highway Needs and Priorities” publication at
issue falls squarely under no. 3 in the Wiedemen holding.
And yet, without explanation, the Louisiana courts ig-
nored this edict in the case sub judice.-(See also, Long v.
State ex rel. Dept. of Transp. and Development, 2004-0485
(La. 6/29/05); 916 So.2d 87, below, where the Louisiana
Supreme Court correctly applied § 409.)

At the trial of this case, when the admissibility of this
evidence was being argued, the trial court asked if 23
U.S.C. § 409 was in effect in 1983. When the court learned
that it was not, it stated, at page 276 of the trial tran-
script: “If 409 was in effect in ’83 I’m not going to allow it
(speaking of “Highway Needs and Priorities”) in. If it was
not in effect then I’m going to allow it.”

In so doing, the court ignored decisions from the
courts of two sister states, Ohio and Missouri. In Perkins
v. Ohio Dept. of Transp., Ohio App. 10 Dist.1989, 584
N.E.2d 794, 65 Ohio App.3d 487, cause dismissed, 566
N.E.2d 673, 57 Ohio St.3d 612, rehearing denied, 570
N.E.2d 281, 58 Ohio St.3d 711, the court found that § 409
applied retroactively to an action against the Department
of Transportation arising from an intersectional automo-
bile collision. The court w-vie that no “manifest injustice”
would result from retrospective application of this statute,
as, while plaintiffs would not be permitted to introduce
certain evidence at trial, they were not deprived of their
cause of action against DOT. Similarly, in Claspill v.

6

Missouri Pacific R. Co., 793 S.W.2d 139 (Mo. 1990), certio-
rari denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529
(1990), that court found that § 409 applied retroactively to
various reports and surveys identifying or evaluating
highway safety problems for purposes of allocating funds
created prior to the effective date of that statute.

The Louisiana courts have thus thwarted the pur-
poses of the Federal Hazard Elimination Program by -
allowing plaintiffs to use information compiled pursuant to
federal statute and pertinent regulations, and protected by
statute and both federal and state court decisions. Such
behavior shsuid not be allowed to stand. Therefore, DOTD
asks this Honorable Court to issue a per curiam order
granting a new trial to DOTD and prohibiting the intro-
duction into evidence of any information regarding high-
way safety prepared under the provisions of the Federal
Hazard Elimination Program, more particularly, the
“Highway Needs and Priorities” publication.

¢

_ FACTS IN THIS CASE

At 7:15 a.m. on September 24, 1987, James Tompkins
(“Tompkins”) was traveling westbound on Louisiana
Highway 429, Cornerview Road, in Ascension Parish.
Keith Rouyea (“Rouyea”) and James Gandolfi (“Gandolfi”)
were passengers in his 1977 Ford LTD. Tompkins had
been up for seventeen hours prior to the accident and had
been drinking. As Tompkins approached the subject curve,
he passed a 45 m.p.h. speed limit sign and a curve
warning sign. Despite these warnings, Tompkins was
traveling approximately 63 m.p.h. as he approached the

curve. Due to his intoxication, fatigue, and speed, Tomp-
kins had a substantially delayed steering input which
caused him to run off the right side of the road before the
curve began.

After Tompkins left the road, he traveled approxi-
mately 110 feet according to the investigating officer, State
Trooper Robert Landry, before striking a tree which was
located eleven feet, seven inches from the inside of the
white shoulder line of the road. Trooper Landry saw no
evidence of braking by Tompkins.

Tompkins woke up at 1:00 p.m. on September 23,
1987, the day before the accident. Before leaving his
house, he drank two or three beers at about 4:00 or 5:00
p.m. Tompkins drove to a Burger King and met up with
Gandolfi at about 6:00 or 7:00 p.m. Gandolfi had a six pack
of beer with him.

After meeting, the pair went to Baton Rouge, where they
drove around the Baton Rouge drea for about two or three
hours. After leaving Baton Rouge, they drove to St. Amant,
and picked up Rouyea at his home, sometime after midnight.
After leaving Rouyea’s house, Tompkins drove to his parents
home, and then on to Gandolfi’s home. On the way to Gan-
dolfi’s home, the above described accident occurred.

Trooper Landry testified that he smelled alcohol on
the driver following the accident and had a blood test done
on Tompkins at the hospital, which turned up positive for
alcohol at 0.08%, two hours after the accident. Gary
Wimbish, Ph.D., DOTD’s expert toxicologist, testified that
Tompkins’ blood alcohol level was approximately .11% at
the time of the accident, and that a combination of intoxi-
cation and fatigue caused him to have a delayed steering
input which caused the accident.

8

As result of the accident Tompkins suffered minor
injuries, Rouyea suffered severe injuries rendering him a
quadriplegic, and Gandolfi suffered mortal injuries.

A bench trial was held before the Honorable Thomas
J. Kleibert, Jr., on October 6, 2003, and continued on
October 7, 16, and on November 7, 2003. After evidence
was taken, the matter was taken under advisement and
the plaintiff and DOTD were instructed to file post-trial
memorandums. Following the submission of the parties’
post-trial briefs, on June 16, 2004, the trial court rendered
written reason for judgment.

The trial court found that Tompkins was at fault in the
cause of the accident and that Louisiana Highway 429 at the
site of the accident created an unreasonable risk of harm and
was a cause of the accident and that DOTD should have
placed guardrails in front of the trees in the curve which
Tompkins struck. The court allocated 85% of the fault to
James Tompkins and 15% of the fault to DOTD.’

The court awarded the following damages: Past
medical expenses including gratuitously rendered medical
care $901,035.80; future medical expenses $5,751,905.00;
past lost earnings $367,809.00; future lost earnings
$503,617.00; physical pain and suffering $750,000.00;
mental anguish $500,000.00; loss of enjoyment of life
$500,000.00; loss of consortium for Albert Rouyea
$150,000.00; and loss of consortium for Beverly Rouyea
$150,000.00. The total award for all plaintiffs is $9,574,366.

* Under the Louisiana Civil Code as it existed at the time of the
accident, if DOTD is found partially responsible for the accident, they
are held liable for 50% of the damages.

9

DOTD filed a timely appeal with the Court of Appeal
and assigned as error the trial court’s evidentiary ruling
allowing into evidence a DOTD report entitled “Highway
Needs and Priorities”, and relying upon the report in
rendering judgment in favor of the plaintiffs. This report
was compiled pursuant to 23 U.S.C. § 152 which created a
national Hazard Elimination Program to enhance highway
safety and, as such, is inadmissible in evidence as declared
in 23 U.S.C. § 409. Such an error of law interdicted the
fact-finding process and required a de novo review of the
record by the appellate court.

On November 4, 2005, the Court of Appeal rendered
its opinion affirming the trial court’s evidentiary ruling
and judgment in favor of the plaintiffs. In its reasons for
judgment, the Court of Appeal did not address DOTD’s
argument that the trial court erred in allowing the High-
way Needs and Priorities-Manual into evidence. Rather,
the Court of Appeal merely commented on the issue in a
footnote stating, “We also find no error of law in the trial
court’s admission of and reliance on plaintiff’s exhibit P-
31. The evidence was not subject to the shield of 23 U.S.C.
§ 409.” The Court of Appeal’s decision not to address the
inadmissibility of evidence pursuant to § 409 demon-
strates a failure to give full faith and credit to the legisla-
tive acts of the United States Congress, and frustrates the
purpose of the federal legislation concerning the Highway
Safety Program.

On December 9, 2005, DOTD filed a writ application
with the Louisiana Supreme Court. DOTD assigned as
error the Court of Appeal’s ruling on the admissibility of
the Highway Needs and Priorities Manual, pursuant to 23
U.S.C. § 409. On April 17, 2006, the Louisiana Supreme

Court denied Se ee without comment.
The Louisiana Supreme Court’s failure to address the

10

admissibility of evidence pursuant to § 409 further demon-
strates the Louisiana judiciary’s failure to give full faith
and credit to the acts of both the U.S. and Louisiana
legislative and executive bodies.

*

ARGUMENT ON ASSIGNMENT OF ERROR

Plaintiffs in this case presented evidence in the form
of a document prepared by defendant, DOTD, entitled
“Highway Needs and Priorities.” This document was
prepared by the state pursuant to the federal Hazard
Elimination Program (“Program”) that provides state and
local governments with funding to improve the most
dangerous sections of their roads. Although this Honorable
Court addressed the application of 23 U.S.C. § 409 in
Pierce County, supra, not long ago, a brief history of this
Program is presented here for ease of reference.

In 1958, Congress declared that it was in the national
interest to develop a nationwide highway system to be
financed through Federal aid (see 23 U.S.C. § 101[b]). In
furtherance of this objective, Congress, in 1966, adopted
the Highway Safety Act. The purpose of this Act was to
improve highway safety by encouraging closer federal and
state cooperation with respect to road improvement.
Towards this end, Congress, in 1973, adopted the Highway
Hazard Elimination Program. Under the Program, each
state was required to systematically prepare and maintain
an engineering survey of all public roads. The purpose of
the survey was to identify roadside hazards and hazardous
conditions, to assign priorities for the correction of haz-
ards, and to establish and to implement a schedule of
projects for their improvement.

11

The Secretary of the Department of Transportation
informed Congress in 1976 that he was having great
difficulty receiving data from the states under this Pro-
gram.’ The Secretary advised Congress that some “states
are very concerned” and “expressed strong objection” to
the absence of any confidentiality for their compliance
efforts “because of legal actions resulting from accidents at
these locations before an improvement can be made.”
States refused to comply with the information gathering
and resisted applying the process “uniformly ... to all
public roads,” not using “current, reliable accident data .. .
to help identify hazardous locations” or performing “ade-
quate evaluations.” According to the Secretary, states’
“highway departments were reluctant to compile informa-
tion to identify and prioritize roadway hazards for fear
that acknowledging the existence of hazardous conditions
would expose them to liability.”

In 1984, Congress added Section (k) to 23 U.S.C.
§ 402, which conditioned a state’s eligibility for highway
safety funds under that statute on whether the state
either “certifies to the Secretary that it has in operation a

* Kara M. Turner, “The Great Train Robbery that Wasn't: Practical
Implications of CSX v. Easterwood,” 72 Wash. U.L.Q. 1449, 1456 (1994),
citing Fed. Highway Admin., U.S. Dep’t of Transportation, Railroad-
Highway Grade Crossing Handbook, 5 tbl. 5 (1992).

* United States Department of Transportation and Development,
Secretary’s Second Annual Report on Highway Safety Improvement
Programs (1976).

* United States Department of Transportation and Development,
Secretary's Annual Report on Highway Safety Improvement Programs
(1986).

" Id.

12

computerized traffic safety record keeping system” or
“provides ...a plan... for establishing and maintaining a
computerized traffic safety record keeping system.” Sec-
tion (k) further provided:

Notwithstanding any other provision of law, if a
report, list, schedule, or survey is prepared by or
for a State or political subdivision thereof under
this subsection, such report, list, schedule, or
survey shall not be admitted as evidence or used
in any suit or action for damages arising out of
any matter mentioned in such report, list, sched-
ule, or survey.

However, since § 402 only protected raw data such as
a “report, list, schedule, or survey . ... prepared by a state,”
Congress enacted 23 U.S.C. § 409 in 1987. Section 409
extended the same protection of former § 402 to all “re-
ports, surveys, schedules, lists, or data compiled . . . for the
purpose of ... Sections 130, 144 and 152 of this title ‘as
well as to’ any highway safety construction. improvement
project which may be implemented utilizing Federal-aid
highway funds.” In 1995, Congress amended § 409 to
include the words “or collected” after “compiled,” as fol-
lows:

Notwithstandiag any other provision of law, re-
ports, surveys, schedules, lists or data compiled
or collected for the purpose of identifying, evalu-
ating, or planning the safety enhancement of po-
tential accident sites, hazardous roadway
conditions, or railway-highway crossings, pursu-
ant to sections 130, 144 and 152" of the title or

* In 2005, Pub.L. 109-59, § 1401(aX3)¢ struck out “152” and
inserted “148,” but since the trial of this case #egan in October, 2003,
the 1995 version applies.

13

for the purpose of developing any highway safety
construction improvement project which may be
implemented using 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 loca-
tion mentioned or addressed in such reports,
surveys, schedules, lists or data.”

(As amended Nov. 28, 1995, PL. 104-59, Title III, § 323,
109 Stat. 591).

This clarification was added in response to inconsis-
tent application of § 409 in state court decisions that, in
the view of Congress, misinterpreted the term “data
compiled” to apply only to raw data itself and which failed
to look at the purpose for which the data was compiled.

Congress’ intent in adopting the 1995 amendment to
§ 409 was articulated as follows:

It is intended that raw data compiled prior to be-
ing made part of any formal or bound report

* 23 U.S.C. § 130(d) requires, inter alia, that states participating in
funding thereunder survey highways to identify railroad crossings
which “require separation, relocation, or protective devices, and
establish and implement a schedule of projects for this purpose.”

23 U.S.C. § 144(b), similarly, requires, inter alia, an inventory of all
highway bridges “on any Federal-aid system ... [and] assign each a
priority for replacement or rehabilitation. .. .”

23 U.S.C. § 152(a) requires that participating states survey “all
public roads to identify hazardous locations . . . assign priorities for the
correction oi such locations . . . and implement a schedule of projects for
their improvement.” Louisiana’s “Highway Needs and Priorities”
information was prepared pursuant to this section.

14

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 loca-
tion mentioned or addressed in such data.”

Thus, Congress made clear that § 409 restricts the
admissibility of information compiled for purposes of the
Program set forth in 23 U.S.C. §§ 130, 144 and 152, which
could be used against states in civil litigation. Courts have
recognized that Congress’ purpose in enacting the statute
was to facilitate candor in administrative evaluations of
highway safety hazards and to prohibit federally required
record-keeping from being used as a tool in private litiga-
tion. Such candor assists state transportation departments
and the Federal Highway Administration in accurately
identifying roadway hazards and developing plans to
eliminate them through federal-aid programs in which the
federal government assumes 90% of the cost.

The Program provides state and local governments
with funding to improve the most dangerous sections of
their roads. To be eligible for funds under the Program, a
state or local government must undertake a thorough
evaluation of its public roads. Specifically, 23 U.S.C.
§ 152(aX1) requires them to “conduct and systematically
maintain an engineering survey of all public roads to identify
hazardous locations, sections, and elements, including
roadside obstacles and unmarked or poorly marked roads,
which may constitute a danger to motorists, bicyclists, and

’° National Highway System Designation Act of 1995, Pub.L. No.
104-246, § 328 reprinted in 1995 U.S.C.C.A.N. 109 Stat. at 651.

15

pedestrians, assign priorities for the correction of such
locations, sections, and elements, and establish and
implement a schedule of projects for their improvement.”
The Secretary of Transportation has promulgated regula-
tions implementing the Program, including, 23 C.F.R.
§ 924.1, et seq., which addresses the policy," planning,”

4 23 C.FR. § 924.5 Policy.

Each State shall develop and implement, on a continuing basis, 2
highway safety improvement program which has the overall objective of
reducing the number and severity of accidents and decreasing the
potential for accidents on all highways.

* 23 C.F.R. § 924.9 Planning.

(a) The planning component of the highway safety improvement
program shall incorporate:

(1) A process for collecting and maintaining a record of accident,
traffic, and highway data, including, for railroad-highway grade
crossings, the characteristics of both highway and train traffic;

(2) A process for analyzing available data to identify highway loca-
tions, sections and elements determined to be hazardous on the basis of
accident experience or accident potential;

(3) A process for conducting engineering studies of hazardous loca-
tions, sections, and elements to develop highway safety improvement
projects as defined in 23 U.S.C. 101(a); and
(4) A process for establishing priorities for implementing highway
safety improvement, projects, considering: -

(i) The potential reduction in the number and/or severity of
accidents,

(ii) The cost of the projects and the resources available,
**“* * -

(vi) Other criteria as appropriate in each State.
x** *

16 eh
implementation” and evaluation of highway safety
improvements.

By its express reference to §§ 130, 144, and 152 of
Title 23, § 409 must be construed in pari materia. The
- documents protected under § 409 necessarily include those
indicated in § 152. There is no doubt that the publication,

* 23 C.F.R. § 924.11 Implementation.

(a) The implementation component of the highway safety improve-
ment program in each State shall include a process for scheduling and
implementing safety improvement projects in accordance with (1) the
procedures set forth in 23 C.F.R. Part 630, Subpart A (Federal-Aid
Program Approval and Project Authorization) and (2) the priorities
developed in accordance with § 924.9. The States are encouraged to
utilize the timesaving procedures incorporated in FHWA directives for
the minor type of work normal to highway safety improvement projects.

(b) Funds apportioned under 23 U.S.C. 152, Hazard Elimination
Program, are to be used to implement highway safety improvement
projects on any public road other than Interstate.

* **

* 23 C.F.R. § 924.13 Evaluation.

(a) The evaluation component of the highway safety improvement
program in each State shall include a process for determining the effect
that highway safety improvement projects have in reducing the number
and severity of accidents and potential accidents, including:

(1) The cost of, and the safety benefits derived from the various means
and methods used to mitigate or eliminate hazards,

(2) A record of accident experience before and after the implementa-
tion of a highway safety improvement, project, and

(3) A comparison of accident numbers, rates, and severity observed after
the implementation of a highway safety improvement project with the
accident numbers, rates, and severity expected if the improvement had
not been made.

(b) The findings resulting from the evaluation process shall be incorpo-
rated as basic source data in the planning process outlined in
§ 924.9(a).

* eK

17

“Highway Needs and Priorities,” admitted into evidence by
the trial court, contains information compiled for safety
purposes pursuant to § 152. The plaintiffs’ expert witness,
Mr. James Clary, has admitted as much in testimony in
another case:

“According to Mr. Clary, a minimum tolerable
condition is separate from the design standards
promulgated by AASHTO. Mr. Clary testified
that DOTD uses the minimum tolerable condi-
tion approach as a guide in grading the highway
system and determining which roads to place in
the construction program. Mr. Clary further tes-
tified that DOTD used safety research performed
by AASHTO and various research committees in
determining what the minimum tolerable condi-
tions should be.”

Thornhill v. State Dept. of Transp. and Development, 676
So.2d 799, page 806, 95 1946 (La.App. 1 Cir. 6/28/96), writ
denied by, Riley v. State Through Dept. of Transp. and
Development, 96-2014, 683 So.2d 272 (La. 11/8/96), and
writ denied by, Riley v. State Through Dept. of Transp. and
Development, 96-2021, 683 So.2d 272 (La. 11/8/96).

The trial judge in the case sub judice allowed the
introduction of the “Highway Needs and Priorities” docu-
ment and testimony regarding its contents. It appears that
his reasoning for doing so was based on the fact that this
document is dated in 1983 and Congress did not create
§ 409 until 1987. (See page 5 above.)

The United States Supreme Court recently had
occasion to address the application of 23 U.S.C. § 409 to
§ 152 information in the case of Pierce County v. Guillen,
supra, 123 S.Ct. at 730. The Court held:

18

The interpretation proposed by the Government,
however, suffers neither of these faults. It gives ef-
fect to the 1995 amendment by making clear that
§ 409 protects not just the information an agency
generates, i.e., compiles, for § 152 purposes, but
also any information that an agency collects from
other sources for § 152 purposes. And, it also
takes a narrower view of the privilege by making
it inapplicable to information compiled or col-
lected for purposes unrelated to § 152 and held by
agencies that are not pursuing § 152 objectives.
We therefore adopt this interpretation.

The Louisiana Supreme Court recently discussed the
Guillen decision in Long v. State ex rel. Dept. of Transp.
and Development, supra.

The case dealt with the admissibility of letters from the
mayor of the town of Bonita to DOTD regarding two acci-
dents at a railroad crossing in the previous eight years,
DOTD’s response that it planned to signalize the railroad
crossing from funds available through a federal safety
program and the mayor’s response, agreeing to the terms
set forth in DOTD’s letter. DOTD objected, arguing that the
letters were protected by 23 U.S.C. § 409. The court wrote:

We find the reasoning of Guillen and our lan-
guage in Reichert and Palacios particularly in-
structive to our inquiry in this case, and
therefore consider that instruction in our analy-
sis of the letters introduced by the plaintiffs. In
particular, we must keep in mind Congress’ goal
in enacting § 409, i.e. fostering candor and dili-
gence in information gathering. States must be al- ™
lowed to compile information without hesitation
and fear that information collected may be used
against them in private litigation.

19

... The letters evidence the commencement of
the process in selecting the roadway/railway
crossing for improvement and can be compared
to the letter in Guillen which was originally pre-
pared and maintained by the county sheriff. In
fact, the letters herein bear a strong resemblance
to the letters held inadmissible in Reichert.

... Hence, we find these three letters- represent
information necessary for the commencement of
the upgrade for this roadway/railroad crossing,
and thus, the letters effectuate the purpose of the
federal safety program. Taken as a whole, and in
the context of the framework of the purpose of
§ 409, we find the letters were compiled and col-
lected by the DOTD for purposes related to fund-
ing through § 130, a federal safety program. Thus,
we find the letters are protected from discovery
and are inadmissible under 23 U.S.C. § 409.

DOTD’s “Highway Needs and Priorities” publication,
wrongly admitted into evidence by the trial court and
considered in its opinion, was compiled and collected by
DOTD for purposes related to § 152, another federal safety

program. As such, it, too, is protected and inadmissible
under 23 U.S.C. § 409.

In Vega v. State, 10 Misc.3d 822, 804 N.Y.S.2d 229,
2005 WL 3070794 (N.Y. Ct. Cl., Oct. 13, 2005), claimants
alleged that they were injured in an automobile accident
which occurred as the result of negligence by the New York
State Departr-znt of Transportation in failing to rectify a
“dangerous intersection” for an unreasonable period of
time. The State raised objections to any and all material,
testimony and documentary evidence concerning the DOT
internal classification of the intersection as a “dangerous
intersection.” The basis for this objection was 23 U.S.C.

20

§ 409, “which creates certain evidentiary protections for
states which collect or compile data on highway safety for
the purposes of obtaining funding under Section 152 of the
federal Hazard Elimination Program.” (Page 1.) The court
cited Guillen and held, at page 2:

..., Section 409 was amended in 1991 and 1995,
both times with the obvious congressional intent
of strengthening the protections afforded to the
states in gathering and compiling information re-
garding highway safety for purposes of federal
funding under Section 152. Although Section 409,
as amended, will certainly result in somewhat
harsh results for an individual claimant, Congress
has made clear that the public policy of encourag-
ing candid study, design and construction of
highway safety improvements is paramount. This
is a determination correctly left to the legislature
and should not be disturbed by the Courts.

Before Guillen, an Alaska court found in Walden v.
Department of Transp., 27 P.3d 297 (Ak. 2001), that a
Design Study Report prepared by its State Department of
Transportation was made for the purpose of planning
safety enhancements for or developing a federally funded
highway safety construction improvement project was
protected by § 409. Louisiana’s “Highways Needs and
Priorities” is a similar publication in that it is an essential

" It is interesting to note that in both Vega and Walden the
plaintiffs obtained the contested information in discovery but were not
allowed to use it at trial. Both cases found that both DOTs waived only the
protection of the statute with respect to discovery, not to its admission
in court. Because both DOTs timely objected to use of the information at
trial, it is clear that they did not waive the protection of the federal
statute with respect to admissibility of the information at trial.

21

step in identifying state roadways that need upgrading for
safety purposes.

The trial court erred in allowing the “Highway Needs
and Priorities” report and testimony concerning informa-
tion compiled by DOTD under the Program. The appellate
court compounded the error when it found no error of law
by the trial court in this respect. The consideration of this
protected evidence by the trial court was prejudicial to
DOTD and materially affected the outcome of this case.
For this reason, this court should remand the case to the
trial court and order a re-trial which conforms to the
protections provided states in 23 U.S.C. § 409.

Respectfully submitted,

CHARLES C. FOTI, JR.
Attorney General of the State of Louisiana
By
STACEY MOAK
Special Assistant Attorney General
Counsel of Record
Davip E. Coo_Ley, JR.

P.O. Box 77651
Baton Rouge, Louisiana 70879-7651
Telephone (225) 751-6300
Facsimile (225) 751-6301

JOHN CLAIBORNE YOUNG
Chief Counsel,
Louisiana State Office of Risk Management
P.O. Box 91106
Baton Rouge, Louisiana 70821-9106
Telephone (225) 219-0184
Facsimile (225) 342-8473

Attorneys for Petitioner the State of Louisiana,
through the Department of Transportation
and Development

App. 1

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2004 CA 1830

ALBERT M. ROUYEA, individually and
as limited curator for his son, KEITH D. ROUYEA,
and BEVERLY YOUNG ROUYEA

VERSUS

LOUISIANA DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT, THE PARISH OF ASCENSION,
PRUDENTIAL PROPERTY AND CASUALTY
INSURANCE COMPANY, ABC INSURANCE
COMPANY, JOHN L. PORTER, ITI,
and JAMES E. TOMPKINS

[BJC
RDD] Judgment Rendered: November 4, 2005,

* KK K *

On Appeal from the
23rd Judicial District Court,
In and for the Parish of Ascension,
State of Louisiana
Trial Court No. 41,610

Honorable Thomas J. Kliebert, Jr., Judge Presiding

* * KK *

Paul H. Due Attorneys for Plaintiffs-Appellees,
Donald W. Price Albert Rouyea, et al.

B. Scott Andrews

Baton Rouge, LA

[EJJG Concure without Reasons]

App. 2

Frank J. D’Amico
New Orleans, LA

Stacey Moak Attorneys for Defendant-Appellant,

Robert C. Funderburk State of Louisiana, Through Dept.

Baton Rouge, LA of Transportation and Development
* * *K K *

BEFORE: CARTER, C.J., DOWNING, AND GAIDRY, JJ.

App. 3

CARTER, C. J.

Following a trial on the merits, DOTD (“defendant”)
appeals a judgment finding it partially at fault for a one-
vehicle accident and awarding damages to plaintiffs, a
guest passenger and his parents. The issues on appeal
revolve around whether the trial court was clearly wrong
in finding that the highway in question was defective and
unreasonably dangerous, whether the trial court was
clearly wrong in allocating 85% fault to the mtoxicated
driver and 15% fault to defendant, and whether the trial
court abused its discretion in the damage amount awarded
to plaintiffs.

After a thorough review and evaluation of the record,
we are convinced that the reasons assigned by the trial
court are correct. We find no manifest error in the trial
court’s factual conclusion that the curve in the highway
was unreasonably dangerous and contributed to the cause
of the accident in question.’ Furthermore, we believe the
record supports the conclusion that defendant was 15% at
fault for the accident, and we find that the amount of
damages awarded does not constitute an abuse of discre--
tion. See Stobart v. State through Dept. of Transp.
and Development, 617 So.2d 880, 883 (La. 1993); Rosell
v. ESCO, 549 So.2d 840, 844 (La. 1989); and Youn v.
Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.
1993), cert.denied, 510 U.S. 1114, 114 S.Ct. 1059, 127
L.Ed.2d 379 (1994).

* We also find no error of law in the trial court’s admission of and
reliance on plaintiffs’ exhibit P-31. The evidence was not subject to the
shield of 23 U.S.C. §409.

App. 4

Thus, in accordance with Uniform Rules — Courts of
Appeal, Rule 2-16.2A(2), (5), (6), and (8), we affirm the
trial court’s judgment and assess all costs associated with
this appeal, $6,000.00, against defendant.

AFFIRMED.

App. 5

ALBERT M. ROUYEA, ET AL. NUMBER: 41,610 DIV.: “B”

23RD JUDICIAL
DISTRICT COURT
VERSUS PARISH OF ASCENSION
STATE OF LOUISIANA,
THROUGH THE
DEPARTMENT OF
TRANSPORTATION AND

DEVELOPMENT, ET AL. STATE OF LOUISIANA

{

JUDGMENT
(Filed Jul. 15, 2004)

This matter came on for trial on October 6, 7, 16 and
November 7, 2003.

Present were:

Paul H. Dué Counsel for plaintiffs, Albert
Donald W. Price Rouyea and Beverly Rouyea
Dué, Price, Guidry,
Piedrahita and
Andrews
Frank D’Amico Co-Counsel for plaintiffs,
Albert Rouyea and Beverly
Rouyea
Stacey Moak Counsel for defendant, the
Stacey Moak & State of Louisiana, through
Associates the Department of Trans
portation and Development
Robert C. Funderburk Counsel for defendant, the
FUNDERBURK & State of Louisiana, through
ANDREWS the Department of Trans

portation and Development

App. 6

Evidenced was adduced, post-trial briefs were submit-
ted, and the matter was submitted for judgment. In
accordance with the Court’s reasons for judgment ren-
dered on June 16, 2004, the law and evidence being in
favor thereof:

IT IS ORDERED, ADJUDGED AND DECREED that
there be judgment in favor of plaintiff, Albert Rouyea, in
his capacity as curator of the interdict, Keith Rouyea, and
against defendant, the State of Louisiana, through the
Department of Transportation and Development, in the
full principal amount of FOUR MILLION SIX HUNDRED
THIRTY-SEVEN THOUSAND ONE HUNDRED EIGHTY-
THREE AND 40/100 DOLLARS ($4,637,183.40), together
with interest thereon from July 15, 1988, the date of
judicial demand, until paid, at the full conventiona! rate
set forth pursuant to La. C.C.P. art. 2924.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be judgment in favor of plaintiff,
Albert Rouyea, individually, and against defendant, the
State of Louisiana, through the Department of Transpor-
tation and Development, in the full principal amount
SEVENTY-FIVE THOUSAND AND NO 00/100 DOLLARS
($75,000.00), together with interest thereon from July 15,
1988, the date of judicial demand, until paid, at the full
conventional rate at forth pursuant to La. C.C.P. art.
2924.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that there be judgment in favor of plaintiff,
Beverly Rouyea, individually, and against defendant, the
State of Louisiana, through the Department of Transpor-
tation and Development, in the full principal amount, of
SEVENTY-FIVE THOUSAND AND NO 00/100 DOLLARS

App. 7

($75,000.00), together with interest thereon from July 15,
1988, the date of judicial demand, until paid, at the full
conventional rate set forth pursuant to La. C.C.P. art.
2924.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that costs will be fixed and taxed pursuant to
La. R.S. 13:5112 at a rule to tax costs to be scheduled.

JUDGEMENT READ AND SIGNED at Convent
Louisiana, this 14th day of June, 2004.

/s/ Thomas J. Kliebert, Jr.
JUDGE, 23RD JUDICIAL
DISTRICT COURT

App. 8

TWENTY-THIRD JUDICIAL DISTRICT COURT
FOR THE PARISH OF ASCENSION
STATE OF LOUISIANA
NO. 41,610 DIVISION “B”
ALBERT J. ROUYEA

VERSUS

LOUISIANA DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT

FILED:

DEPUTY CLERK

REASONS FOR JUDGMENT
(Filed Jun. 17, 2004)

This suit was brought against the State of Louisiana,
through the Department of Transportation and Develop-
ment (DOTD), by Albert Rouyea, the curator of the inter-
dict, Keith Rouyea, and Beverly Rouyea to recover for
injuries Keith Rouyea and the plaintiffs, his parents,
suffered as a result of an automobile crash that was
allegedly caused by the fault of the DOTD.

On the morning of September 24, 1987, James Tomp-
kins was driving westbound, on Cornerview Road, La.
Hwy. 429, with Keith Rouyea and James Gandolfi as
passengers. As he tried to negotiate a sharp left-hand
curve or turn where Cornerview Road meets New River,
Tompkins lost control of the vehicle and hit a tree on the
side of the road. Keith Rouyea was seriously injured, and
the other passenger was killed.

The posted speed limit in this area was 45 mph, and
the estimates of Tompkins’ speed from lay and expert

App. 9

witnesses varied from 45 to 63 mph. There was conflicting
testimony as to whether there was some amount of gravel
in the roadway at the area where he lost control, which
would have reduced the amount of friction available to his
tires for the cornering maneuver. DOTD introduced
evidence of a computer reconstruction that showed that
Tompkins initiated his turning maneuver a fraction of a
second late, but DOTD’s expert conceded that his recon-
struction only showed one way the accident could have
happened, rather than the only way the accident could
have happened. Although Tompkins denied being intoxi-
cated, DOTD introduced unrebutted expert testimony that
his blood alcohol level was approximately .11 percent at
the time of the crash.

?

The plaintiffs contended that in addition to Tompkins
negligence, the DOTD was also negligent and strictly
liable for the cendition of the highway, and that this
condition was a substantial factor in causing the crash.
The area of this curve is the only part of Cornerview Road
that has never been brought up to modern standards. The
road was originally designed as a gravel road in 1923 to
have a 10% degree curve here. Standards promulgated
since then have provided for maximum curvatures of 51/2 to
6 degrees. The curve was paved in 1952 and again in 1983.
The curve as it exists today (which is the same as it was at
the time of the crash in 1987) is 14'% to 16 degrees. The
curve either was not originally built in accordance with
the original design, or it was changed during one of the
later projects. In either case, the highway is considered
“critically deficient” because its curvature exceeds 8
degrees under the DOTD’s own Highway Needs & Priori-
ties Manual, which is not a new design standard but a
“cookbook” for evaluating existing roads.

App. 10

Plaintiffs’ expert identified a number of other short-
comings of the highway, such as lane width, supereleva-
tion, and other aspects of the highway that do not meet
national or DOTD standards promulgated since the early
1940’s. These characteristics are all combined into the
design speed of the highway, which is a safe speed deter-
mined based upon the geometry of the road. According to
DOTD, the posted speed limit should never exceed the
design speed. DOTD’s 1948 standards require a design
speed of 60 mph for this type of highway, and a design
speed of less than 50 mph is considered critically deficient
according to the Highway Needs & Priorities Manual.
DOTD’s expert testified that the effective design speed of
this stretch of Cornerview Road was approximately 30
mph, some 15 mph less than the posted 45 mph speed,
limit.

Plaintiffs also complained of the unguarded presence
of the tree within 10 feet of the edge of the travel lane.
New construction standards require a 30 foot clear zone
from the edge of the road, while-older standards from the
1950’s require 15 feet of clearance for trees. No one knew
the precise age of the tree that was struck, because it was
cut before plaintiffs’ forester was able to age it. It is
obvious from the police photographs that the tree at issue
was probably decades old. It does not seem, however, that
DOTD owns the property beyond the edge of the road, as
there was no evidence of any right of way being taken by
the state for the highway.

DOTD has a duty to design, construct and maintain
its highways in accordance with national standards under
La. R.S. 48:35. DOTD is required to comply with the
standards in effect at the time the highway is constructed
or reconstructed. Hunter v. DOTD, 620 So.2d 1149, 1151

App. 11

(La. 1993). Before national standards were published,
DOTD was required to use the best engineering judgment
in making design, construction and maintenance deci-
sions. Holloway v. DOTD, 555 So.2d 1341 (La. 1990). The
ultimate question is whether the highway presents an
unreasonable risk of harm, and in considering this, the
court can consider the standards in effect at the time of
the original construction and at the time of the accident.
Dill v. DOTD, 454 So.2d 994, 996 (La. 1989). The totality
of the circumstances must be considered in determining
whether the highway presents an unreasonable risk of
harm. 97-1938 (La. 4/24/98), 712 So.2d 62. A road’s geome-
try or its roadside can render it unreasonably dangerous.
Aucoin v. DOTD, supra; Molberl v. Toepfer, 550 So.2d 183
(La. 1989); and Vervik v. State, 302 So.2d 895 (La. 1974).

The court finds that James Tompkins was negligent in
causing this crash. He was intoxicated at the time of the
accident, and his inebriation and his apparent fatigue
resulted in him going too fast on the road and beginning
his turn too late.

Despite Tompkins’ fault, however, the court also finds
that this accident would not have happened but for the
defective and unreasonably dangerous condition of Cor-
nerview Road. The most significant defect was in the curve
itself. The most lenient standard applicable to this road is
the use of “best engineering judgment,” and the only
evidence of this engineering judgment at the time of the
road’s original construction was the 1923 plans. But the
geometry of this relatively high speed asphalt road failed
to comply even with the 1923 engineering plans for a
gravel road. Whether through negligence in the original
construction or, more likely, through failure to exercise
good engineering judgment in rebuilding and paving the

App. 12

road with a hard surface, the road was constructed with a
turn that is completely out of place. The DOTD certainly
knew or should have known of this condition, since it built
the road, which was not built in accordance with the
design of its own engineer, inspects the roads frequently
and particularly since it did bring the other ends of the
road into compliance with modern standards. Were it not
for the defective nature of the curve, the court finds that
the Tompkins vehicle would more likely than not have
been able to negotiate the road without incident.

The court also finds that the DOTD was negligent in
failing to either remove the trees or place guardrails in
front of them. Over the years it took the trees to grow,
DOTD certainly knew or should have known of the haz-
ards presented by such trees growing this close to a
roadway, and particularly on the outside edge of an exces-
sively sharp curve. Even if it did not own the trees, and if
the adjoining landowner would have objected to the trees
being cut (a highly unlikely scenario given the fact that
they were cut by someone after the accident), DOTD
should have placed guardrails in front of the trees on the
outside of the curve so as to protect motorists. DOTD’s
failure to do so resulted in the Tompkins vehicle striking
the tree, which the court finds, was a substantial factor in
causing the severity of Keith Rouyea’s injuries.

Relying on Petre v. DOTD, 2001-0876 (La. 4/3/02), 817
So.2d 1107; Campbell v. DOTD, 94-1052 (La. 1/17/95), 648
So.2d 898; and Toslon v. Pardon, 2003-1747 (La. 4/23/04),
the plaintiffs argue that Tompkins should be cast with no
more than 50% fault. The court disagrees. As pointed out
by defendant, the cited cases did not require that alloca-
tion of fault. The court finds the proper allocation of fault
in this case to be 85% to James Tompkins, and 15% to the

App. 13

DOTD. Watson v. State Farm Fire, 469 So.2d 967 (La.
1985).

There was little dispute about the serious injuries
suffered by Keith Rouyn and his parents as a result of this
incident. As a result of his traumatic encephalopathy, he
has required and always will require attendant care 24
hours a day. The court agrees with the testimony of Dr.
Clifford that the best place for him is at home with his
family, for as long as they are physically able to care for
him. The court also finds that the plaintiffs are entitled to
recover for the family’s gratuitously rendered medical care
for 24 hours a day pursuant to Tanner v. Fireman’s Fund
Ins. Cos., 589 So.2d 507, 515-16 (La. App. Ist Cir. 1991),
writs denied, 590 So.2d 1207 (La. 1992). Accordingly, the
court fixes damages as follows:

Past medical expenses (including gratuitously ren-
dered medical care): $901,035.80 (Nine Hundred One
Thousand Thirty-Five Dollars and Eighty Cents)

Future medical expenses: $5,751,905.00 (Five Million

Seven Hundred Fifty-One Thousand Nine Hundred Five

Dollars and Zero Cents)

Past lost earnings: $367,809.00 (Three Hundred Sixty-
Seven Thousand Eight Hundred Nine Dollars and Zero
Cents)

Future lost earnings: $503,617.00 (Five Hundred
Three Thousand Six Hundred Seventecn Dollars and Zero
Cents)

Physical pain and suffering: $750,000.00 (Seven
Hundred Fifty Thousand Dollars and Zero Cents)

App. 14

. Mental anguish: $500,000.00 (Five Hundred Thou-
sand Dollars and Zero Cents).

Loss of enjoyment of life: $500,000.00 (Five Hundred
Thousand Dollars and Zero Cents)

Loss of consortium for Albert Rouyea: $150,000.00
(One Hundred Fifty Thousand Dollars and Zero Cents)

Loss of consortium for Beverly Rouyea: $150,000.00
(One Hundred Fifty Thousand Dollars and Zero Cents)

Counsel for plaintiffs is instructed to prepare a judg-
ment in accordance with these written reasons.

Signed this 16th day of June 2004 at Convent, Louisiana.

/s/ Thomas J. Kliebert, Jr.
THOMAS J. KLIEBERT, JR.
DIVISION “B”
JUDGE-23RD |

JUDICIAL DISTRICT

PLEASE NOTIFY:
All Counsel of Record

App. 15

The Supreme Court of the State of Louisiana

ALBERT M. ROUYEA, INDIVIDUALLY
AND AS LIMITED CURATOR FOR
HIS SON, KEITH D. ROUYEA, AND
BEVERLY YOUNG ROUYEA

VS.

LOUISIANA DEPARTMENT OF
TRANSPORTATION AND
DEVELOPMENT, THE PARISH

OF ASCENSION, PRUDENTIAIrn~~
PROPERTY AND CASUALTY

INSURANCE COMPANY, ABC

INSURANCE COMPANY,

JOHN L. PORTER, III, AND

JAMES E. TOMPKINS

NO. 2005-C-2497

IN RE: Transportation and Development Department of
etal; DOTD; State of Louisiana; — Defendant(s); Applying
for Writ of Certiorari and/or Review, Parish of Ascension,
23rd Judicial District Court Div. B, Nos. 41,610; to the
Court of Appeal, First Circuit, No. 2004-CA-1830

April 17, 2006

Denied.
CDT
PFC
BJJ
JTK
JLW

VICTORY, J., would grant.

App. 16

Supreme Court of Louisiana
April 17, 2006

/s/ Katherine A. Fontana

Deputy Clerk of Court
For the Court

App. 17

COURT OF APPEAL
FIRST CIRCUIT
THE STATE OF LOUISIANA

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DOCKET NO. 2004-CA-1830

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ALBERT ROUYEA, ET AL
vs.
STATE OF LOUISIANA, ET AL

HONORABLE THOMAS J. KLIEBERT JR.
23RD JUDICIAL DISTRICT COURT
PARISH OF ASCENSION, STATE OF LOUISIANA
NUMBER 41,610 DIV. B

(Filed Sep. 10, 2004) -

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THIS CIVIL CASE COMES BEFORE
THIS COURT ON APPEAL

ORIGINAL BRIEF BY THE STATE OF LOUISIANA,
THROUGH THE DEPARTMENT OF TRANSPORTA-
TION AND DEVELOPMENT, DEFENDANT, APPEL-
LANT

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STACEY MOAK

SPECIAL ASSISTANT ATTORNEY GENERAL
P.O. BOX 77651

BATON ROUGE, LA 70879-7651
TELEPHONE # (225) 751-6300

ROBERT C. FUNDERBURK
SPECIAL ASSISTANT ATTORNEY GENERAL
329 ST. FERDINAND

App. 18

BATON ROUGE, LA 70802
TELEPHONE # (225) 387-2200

STACEY MOAK, BAR ROLL NO. 9522

ROBERT C. FUNDERBURK, BAR ROLL NO. 5787
SPECIAL ASSISTANT ATTORNEY GENERAL
APPEAL COUNSEL FOR THE STATE OF
LOUISIANA, THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT
DEFENDANT/APPELLANT

* * *

ARGUMENT ON ASSIGNMENT OF ERROR No. 1

The norma! burden of proof in a personal injury case
is upon the plaintiff Ferrell v. Fireman’s Fund Ins. Co.,
650 So.2d 742, 746, 94-1252 (La. 2/20/95), rehearing
denied (March 29, 1995). The Rouyea family must show by
a preponderance of competent, legal evidence that DOTD
is either strictly liable or negligent and that a defect in the
road or the negligence of DOTD was a legal cause of the
accident. Evidence that is prohibited by federal law cannot
be used in the pursuit of this goal. However, in this case,
the trial court admitted such evidence’ and wrote in its
reasons for judgment that the evidence played a signifi-
cant role in its decision. By doing so, he committed legal
error.

Of relevance to this case is the Hazard Elimination
Program which provides State and local governments with

* The trial court admitted the following exhibit, over objection of
defense counsel (Record p. 709 and 727) all of which are protected by 23
U.S.C. § 409:

Exhibit P-31, Highway Needs and Priorties.

Mr. James Clary testified that his opinion on minimum tolerable
conditions came from Highway Needs and Priorities. Record p. 785.

App. 19

funding to improve the most dangerov« sections of their
roads. In 1958, Congress declared tnat it was in the
national interest to develop a nationwide highway system
to be financed through Federal aid (see, 23 USC $ 101[b/]).
In furtherance of this objective, in 1966 Congress adopted
the Highway Safety Act (see, Pierce County v. Guillen,
537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 2003). The
purpose of the Act was to improve highway safety by
encouraging closer federal and State cooperation with
respect to road improvement. To further this end, Con-
gress, in 1973, adopted the Highway Hazard Elimination
Program. Under the Program, each state was required to
systematically prepare and maintain an engineering
survey of all public roads. The purpose of the survey was
to identify roadside hazards and hazardous conditions, to
assign priorities for the correction of hazards, and to
establish and to implement a schedule of projects for their
improvement.

In 1987, Congress adopted 23 USC § 409 (hereinafter
“§ 409”) which generally provided that information com-
piled by states pursuant to 23 USC $152 could not be
admitted into evidence in any action for damages. § 409
was amended in 1991 to direct that such information not
only is not admissible at trial, but also it may not be the
subject of discovery.

DOTD submits that the trial court committed an
evidentiary error by allowing the admission of safety-
related material for which DOTD possesses a privilege of
statutory immunity. The provisions of § 409 state that any
“reports, surveys, schedules, lists, or data compiled or
collected” for specified federal evaluation programs, or which
are gathered for the purpose of a highway safety construc-
tion improvement project that “may be implemented

App. 20

utilizing Federal-aid highway funds” are privileged, not
discoverable, and not admissible in state or federal court.

There is no doubt that the publication, Highway
Needs and Priorities, admitted into evidence by the trial
court, contains information compiled for safety purposes
pursuant to § 152. The plaintiffs’ expert witness, Mr.
James Clary, has admitted this in testimony in another
case:

According to Mr. Clary, a minimum tolerable
condition is separate from the design standards
promulgated by AASHTO. Mr. Clary testified
that DOTD uses the minimum tolerable condi-
tion approach as a guide in grading the highway
system and determining which roads to place in
the construction program. Mr. Clary further tes-
tified that DOTD used safety research performed
by AASHTO and various research committees in

determining what the minimum tolerable condi-
tions should be.

Thornhill v. State Dept. of Transp. and Development,
676 So.2d 799, page 806, 95 1946 (La.App. 1 Cir. 6/28/96),
writ denied by Riley v. State Through Dept. of Transp.
and Development, 683 So.2d 272, 96-2014 (La. 11/8/96),
and writ denied by Riley v. State Through Dept. of
Transp. and Development, 683 So.2d 272, 96-2021 (La.
11/8/96).

The United States Supreme Court recently had
occasion to address the application of 23 U.S.C. § 409 to

§ 152 information in the case of Pierce County, supra,
123 S.Ct. at 730. The Court held:

The interpretation proposed by the Government,
however, suffers neither of these faults. It gives
effect to the 1995 amendment by making clear

App. 21

that § 409 protects not just the information an
agency generates, i.e., compiles, for § 152 pur-
poses, but also any information that an agency
collects from other sources for § 152 purposes.
And, it also takes a narrower view of the privi-
lege by making it inapplicable to information
compiled or collected for purposes unrelated to
§ 152 and held by agencies that are not pursuing
§ 152 objectives. We therefore adopt this-inter-
pretation.

The errors by the trial court in allowing exhibits and
testimony concerning information compiled by DOTD
under the Program, and basing its opinion that the curve -
was “critically deficient” because its curvature exceeded
eight degrees and its design speed was less than 50 m.p.h.,
were prejudicial legal errors which interdicted the fact-
finding process. When a trial court makes such an error,
the manifest error standard is no longer applicable, and
the appellate court is obliged to make its own independent,
de novo review of the record. Evans v. Lungrin, 97-0541,
97-0577, p. 7 (La.2/6/98), 708 So.2d 731, 735; McLean v.
Hunter, 495 So.2d 1298, 1303-04 (La.1986). The Supreme
Court stated in Evans that “[lJegal errors are prejudicial
when they materially affect the outcome and deprive a
party of substantial rights.” 708 So.2d at 735. The consid-
eration of this protected evidence by the trial court was
prejudicial to DOTD and materially affected the outcome
of this case. For this reason, this court should conduct a de
novo review of this case.

* * *

App. 22 e

IN THE SUPREME COURT
STATE OF LOUISIANA

DOCKET NO. 05 C 2497

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ALBERT ROUYEA, ET AL
VS.
STATE OF LOUISIANA, ET AL

HONORABLE THOMAS J. KLIEBERT, JR.
23RD JUDICIAL DISTRICT COURT,
PARISH OF ASCENSION
Div. “B” Docket # 41,610

COURT OF APPEAL, FIRST CIRCUIT
DOCKET NO. 2004-CA-1830

(Filed Dec. 9, 2005)

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APPLICATION FOR SUPERVISORY WRITS AND
RELIEF BY THE STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT, DEFENDANT/APPLICANT,
DIRECTED TO THE SUPREME COURT
OF THE STATE OF LOUISIANA

DYE KK 2 2K A Ak 2k 2k 2S fs OAS I 3s ak fs 2s fe fs fs 2h 2k ft 24 fs fs ois fe as 2h 2h fs af af 24s 2 fs of fe oft 2s fs 24 fs is fe fs ft fs afc of af 2k aie

CHARLES C. FOTI, Jr.
ATTORNEY GENERAL

Stacey Moak, Bar Roll No. 9522 |
Special Assistant Attorney General
P.O. Box 77651

Baton Rouge, LA 70879-7651

(225) 751-6300

App. 23

Robert C. Funderburk, Bar Roll No. 5787
Special Assistant Attorney General

329 St. Ferdinand

Baton Rouge, LA 70802

(225) 387-2200

Attorneys for the State of Louisiana,
through the Department of Transportation
and Development Defendant/Applicant

* * *

WRIT GRANT CONSIDERATIONS

1. Conflicting Decisions. The decision of the court of —
appeal conflicts with a decision of this court and the
Supreme Court of the United States, on the same legal
issue.

2. Erroneous Interpretation or Application of Constitu-
tion-or Laws. The court of appeal has erroneously inter-
preted or applied a law of the United States and the
decision will cause material injustice or significantly affect
the public interest.

oe * *

SUMMARY OF THE ARGUMENT

The trial court committed legal error by allowing into
evidence and considering a DOTD report entitled “High-
way Needs and Priorities.” This report was compiled
pursuant to 23 U.S.C. § 152 which created a national
Hazard Elimination Program to enhance highway safety
and, as such, is inadmissible in evidence as declared in 23
U.S.C. § 409. Such an error of law interdicts the fact-
finding process and requires a de novo review of the record
by the appellate court.

App. 24

Based primarily on the prohibited evidence, the trial
court found that the curve was unreasonably dangerous
‘and assigned 85% fault to the driver and 15% fault to
DOTD. Such an apportionment of fault was contrary to the
evidence. The driver was familiar with the road, having
driven along this route innumerable times before. At the
time of the accident he was under the influence of alcohol
and had stayed up all night without sleep. Therefore
DOTD should be found free of fault.

* * *

ARGUMENT ON ASSIGNMENT OF ERROR No. 1

The normal burden of proof in a personal injury case
is upon the plaintiff. Ferrell v. Fireman’s Fund Ins. Co.,
650 So.2d 742, 746, 94-1252 (La. 2/20/95), rehearing
denied (Mar 29, 1995). So it is for the Rouyea family: they
must show by a preponderance of competent, legal evi-
dence that DOTD is either strictly liable or negligent and
that a defect in the road or the negligence of DOTD was a
legal cause of the accident. Evidence that is prohibited by
federal law cannot be used in the pursuit of this goal.
However, in this case, the trial court admitted such evi-
dence’ and wrote in its reasons for judgment that the
evidence played a significant role in its decision. By doing
so, the court committed legal error.

Of relevance to this case is the Hazard Elimination
Program which provides state and local governments with

' The trial court admitted the following exhibit, over objection of
defense counsel (Tr. p. 709 and 727) which is protected by 23 U.S.C.
§ 409: P-31, Highway Needs and Priorities.

Mr. James Clary testified that his opinion on minimum tolerable
conditions came from Highway Needs and Priorities. Tr. p. 785.

App. 25

funding to improve the most dangerous sections of their
roads. In 1958 Congress declared that it was in the na-
tional interest to develop a nationwide highway system to
be financed through Federal aid (see, 23 USC § 101 [b]).
In furtherance of this objective, Congress, in 1966, adopted
the Highway Safety Act (see, Pierce County v. Guillen,
&37 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 [2003]).
The purpose of the Act was to improve highway safety by
encouraging closer federal and state cooperation with
respect to road improvement. Towards this end, Congress,
in 1973, adopted the Highway Hazard Elimination Pro-
gram. Under the Program, each state was required to
systematically prepare and maintain an engineering
survey of all public roads. The purpose of the survey was
to identify roadside hazards and hazardous conditions, to
assign priorities for the correction of hazards, and to —
establish and to implement a schedule of projects for their
improvement.

In 1987, Congress adopted 23 USC § 409 (hereinafter
“§ 409”) which generally provided that information com-
piled by States pursuant to 23 USC $152 could not be
admitted into evidence in any action for damages. Section
409 was amended in 1991 to direct that such information
not only is not admissible at trial, but also it may not be
the subject of discovery.

DOTD submits that the trial court committed an
evidentiary error by allowing the admission of safety-
related material for which DOTD possesses a privilege of
statutory immunity. The provisions of § 409 state that any
“reports, surveys, schedules, lists, or data compiled or
collected” for specified federal evaluation programs, or which
are gathered for the purpose of a highway safety construc-
tion improvement project that “may be implemented

App. 26

utilizing Federal-aid highway funds” are privileged, not
discoverable, and not admissible in state or federal court.

There is no doubt that the publication, “Highway
Needs and Priorities,” admitted into evidence by the trial
court, contains information compiled for safety purposes
pursuant to § 152. The plaintiffs’ expert witness, Mr.
James Clary, has admitted this in testimony in another
case:

According to Mr. Clary, a minimum tolerable
condition is separate from the design standards
promulgated by AASHTO. Mr. Clary testified
that DOTD uses the minimum tolerable condi-
tion approach as a guide in grading the highway
system and determining which roads to place in
the construction program. Mr. Clary further tes-
tified that DOTD used safety research performed
by AASHTO and various research committees in
determining what the minimum tolerable condi-
tions should be.

Thornhill v. State Dept. of Transp. and Development,
676 So.2d 799, page 806, 95 1946 (La.App. 1 Cir. 6/28/96),
writ denied by Riley v. State Through Dept. of Transp.
and Development, 683 So.2d 272, 96-2014 (La. 11/8/96),
and writ denied by Riley v. State Through Dept. of
Transp. and Development, 683 So.2d 272, 96-2021 (La.
11/8/96).

The United States Supreme Court recently had
occasion to address the application of 23 U.S.C. § 409 to
§ 152 information in the case of Guillen, supra, 123 S.Ct.
at 730. The Court held:

The interpretation proposed by the Government,
however, suffers neither of these faults. It gives
effect to the 1995 amendment by making clear

App. 27

that § 409 protects not just the information an
agency generates, i.e., compiles, for § 152 pur-
poses, but also any information that an agency
collects from other sources for § 152 purposes.
And, it also takes a narrower view of the privi-

‘ lege by making it inapplicable to information
compiled or collected for purposés unrelated to
§ 152 and held by agencies that are not pursuing
§ 152 objectives. We therefore adopt this inter-
pretation.

This court recently discussed the Guillen decision in
Long v. State ex rel. Dept. of Transp. and Develop-
ment, __ So.2d__, 2005 WL 1527757, Jun 29, 2005. The
case dealt with the admissibility of letters under 23 U.S.C.
§ 409 from the mayor of the town of Bonita to DOTD
regarding two accidents at a railroad crossing in the
previous eight years, DOTD’s response that it planned to
signalize the railroad crossing from funds available
through a federal safety program and the mayor's re-
sponse, agreeing to the terms set forth in DOTD’s letter.
This court wrote:

We find tue reasoning of Guillen and our lan-
guage in Reichert and Palacios particularly in-
structive to our inquiry in this case, and
therefore consider ‘nat instruction in our analy-
sis of the letters introduced by the plaintiffs. In
particular, we must keep in mind Congress’ goal
in enacting § 409, i.e. fostering candor and dili-
gence in information gathering. States must be
allowed to compile information without hesita-
tion and fear that information collected may be
used against them in private litigation.

... The letters evidence the commencement of
the process in selecting the roadway/railway
crossing for improvement and can be compared

App. 28

to the letter in Guillen which was originally pre-
pared and maintained by the county sheriff. In
fact, the letters herein bear a strong resemblance
to the letters held inadmissible in Reichert.

... Hence, we find these three letters represent
information necessary for the commencement of
the upgrade for this roadway/railroad crossing,
and thus, the letters effectuate the purpose of the
federal safety program. Taken as a whole, and in
the context of the framework of the purpose of
§ 409, we find the letters were compiled and col-
lected by the DOTD for purposes related to fund-
ing through § 130, a federal safety program.
Thus, we find the letiers are protected from dis-
covery and are inadmissible under 23 U.S.C.
§ 409.

DOTD’s “Highway Needs and Priorities” publication,
wrongly admitted into evidence by the trial court and
considered in its opinion, was compiled and collected by
DOTD for purposes related to § 152, another federal safety

program. As such, it, too, is protected and inadmissible
under 23 U.S.C. § 409.

In Vega v. State, ss N.Y.S.2d ___, 2005 WL 3070794,
N.Y.Ct.Cl., Oct 13, 2005, claimants alleged that they were
injured in an automobile accident which occurred as the
result of negligence by the New York State Department of
Transportation in failing to rectify a “dangerous intersec-
tion” for an unreasonable period of time. The State raised
objections to any and all material, testimony and docu-
mentary evidence concerning the DOT internal classifica-
tion of the intersection as a “dangerous intersection.” The
basis for this objection was 23 USC § 409, “which creates
certain evidentiary protections for states which collect
or compile data on highway safety for the purposes of

App. 29

obtaining funding under Section 152 of the federal Hazard
Elimination Program.” (Page 1.) The court cited Guillen
and held, at page 2:

.. section 409 was amended in 1991 and 1995,
both times with the obvious congressional intent
of strengthening the protections afforded to the
states in gathering and compiling information
regarding highway safety for purposes of federal
funding under Section 152. Although Section
409, as amended, will certainly result in some-
what harsh results for an individual claimant,
Congress has made clear that the public policy of
encouraging candid study, design and construc-
tion of highway safety improvements is para-
mount. This is a determination correctly left to
the legislature and should not be disturbed by
the Courts.

Before Guillen, an Alaska court found in Walden v. —
Department of Transp.,’ 27 P.3d 297, July 13, 2001, that
a Design Study Report prepared by its State Department
of Transportation was made for the purpose of planning
safety enhancements for or developing a federally funded
highway safety construction improvement project was
protected by § 409. Louisiana’s “Highways Needs and
Priorities” is a similar publication in that it is an essential
step in identifying state ebeichade that need upgrading for

safety purposes. -

* It is interesting to note that in both Vega and Walden the
plaintiffs obtained the contested information in discovery but were not
allowed to use it trial. Both cases found that both DOTs waived only the
protection of the statute with respect to discovery, not to its admission
in court. Because both DOTs timely objected to use of the information
at trial, it is clear that they did not waive the protection of the federal
statute with respect to admissibility of the information at trial.

App. 30

The error by the trial court in allowing the “Highway
Needs and Priorities” report and testimony concerning
information compiled by DOTD under the Program, and
basing its opinion that the curve was “critically deficient”
because its curvature exceeded eight degrees and its
design speed was less than 50 m.p.h., were prejudicial
legal errors which interdicted the fact-finding process. The
appellate court compounded the error when it found no
error of law by the trial court in this respect. When a trial
court makes such an error, the manifest error standard is
no longer applicable, and the appellate court is obliged to
make its own independent, de novo review of the record.
Evans v. Lundgrin, 97-0541, 97-0577, p. 7 (La.2/6/98),
708 So.2d 731, 735; McLean v. Hunter, 495 So.2d 1298,
1303-04 (La.1986). The Supreme Court stated in Evans
that “(Ljegal errors are prejudicial when they materially
affect the outcome and deprive a party of substantial
rights.” 708 So.2d at 735. The consideration of this pro-
tected evidence by the trial court was prejudicial to DOTD
and materially affected the outcome of this case. For this
reason, this court should remand the case to the First
Circuit and order it to conduct a de novo review of this

case.

App. 31

United States Code (Statutes)

23 U.S.C.A. § 101. Definitions and declaration of
policy -

Current through P.L. 109-239 approved 07-03-06

(a) Definitions. — In this title, the following definitions
apply:

(1) Apportionment. - The term “apportionment”
includes unexpended apportionments made under prior
authorization laws.

(2) Carpool project. — The term “carpool project” means
any project to encourage the use of carpools and vanpools,
including provision of carpooling opportunities to the
elderly and individuals with disabilities, systems for
locating potential riders and informing them of carpool
opportunities, acquiring vehicles for carpool use, designat-
ing existing highway lanes as preferential carpool highway
lanes, providing related traffic control devices, and desig-
nating existing facilities for use for preferential parking
for carpools.

(3) Construction. — The term “construction” means the
supervising, inspecting, actual building, and incurrence of
all costs incidental to the construction or reconstruction of
a highway, including bond costs and other costs relating to
the issuance in accordance with section 122 of bonds or
other debt financing instruments and costs incurred by the
State in performing Federal-aid project related audits that
directly benefit the Federal-aid highway program. Such
term includes —

(A) locating, surveying, and mapping (including the
establishment of temporary and permanent geodetic
markers in accordance with specifications of the National

App. 32

Oceanic and Atmospheric Administration of the Depart-
ment of Commerce);

(B) resurfacing, restoration, and rehabilitation;
(C) acquisition of rights-of-way;

(D) relocation assistance, acquisition of replacement
housing sites, and acquisition and rehabilitation, reloca-
tion, and construction of replacement housing;

(E) elimination of hazards of railway grade crossings;
(F) elimination of roadside obstacles;

(G) improvements that directly facilitate and control
traffic flow, such as grade separation of intersections,
widening of lanes, channelization of traffic, traffic control
systems, and passenger loading and unloading areas; and

(H) capital improvements that directly facilitate an
effective vehicle weight enforcement program, such as
scales (fixed and portable), scale pits, scale installation,
and scale houses.

(4) County. — The term “county” includes corresponding
units of government under any other name in States that
do not have county organizations and, in those States in
which the county government does not have jurisdiction
over highways, any local government unit vested with
jurisdiction over local highways.

(5) Federal-aid highway. — The term “Federal-aid
highway” means a highway eligible for assistance under
this chapter other than a highway classified as a local road
or rural minor collector.

App. 33

(6) Federal-aid system. — The term “Federal-aid
system” means any of the Federal-aid highway systems
described in section 103.

(7) Federal lands highway. — The term “Federal lands
highway” means a forest highway, public lands highway,
park road, parkway, refuge road, and Indian reservation
road that is a public road.

(8) Forest development roads and trails. — The term
“forest development roads and trails” means forest roads
and trails under the jurisdiction of the Forest Service.

(9) Forest highway. - The term “forest highway” means
a forest road under the jurisdiction of, and maintained by,
a public authority and open to public travel.

(10) Forest road or trail. — The term “forest road or
trail” means a road or trail wholly or partly within, or
adjacent to, and serving the National Forest System that
is necessary for the protection, administration, and utili-
zation of the National Forest System and the use and
development of its resources.

(11) Highway. — The term “highway” includes —
(A) aroad, street, and parkway;

(B) a right-of-way, bridge, railroad-highway crossing,
tunnel, drainage structure, sign, guardrail, and protective
structure, in connection with a highway; and

(C) a portion of any interstate or international bridge or
tunnel and the approaches thereto, the cost of which is
assumed by a State transportation department, including
such facilities as may be required by the United States

App. 34

Customs and Immigration Services in connection with the
operation of an international bridge or tunnel.

(12) Indian reservation road. — The term “Indian
reservation road” means a public road that is located
within or provides access to an Indian reservatior. or
Indian. trust land or restricted Indian land that is not
subject to fee title alienation without the approval of the
Federal Government, or Indian and Alaska Native vil-
lages, groups, or communities in which Indians and
Alaskan Natives reside, whom the Secretary of the Inte-
rior has determined are eligible for services generally
available to Indians under Federal laws specifically
applicable to Indians.

(13) Interstate System. — The term “Interstate System”
means the Dwight D. Eisenhower National System of
Interstate and Defense Highways described in section
103(c).

(14) Maintenance. — The term “maintenance” means
the preservation of the entire highway, including surface,
shoulders, roadsides, structures, and such traffic-control
devices as are necessary for safe and efficient utilization of
the highway.

(15) Maintenance area. —- The term “maintenance
area” means an area that was designated as a nonattain-
ment area, but was later redesignated by the Administrator
of the Environmental Protection Agency as an attainment
area, under section 107(d) of the Clean Air Act (42 U.S.C.
7407(d)).

(16) National Highway System. — The term “National
Highway System” means the Federal-aid highway system
described in section 103(b).

App. 35

(17) Operating costs for traffic monitoring, man-
agement, and control. — The term “operating costs for
traffic monitoring, management, and control” includes
labor costs, administrative costs, costs of utilities and rent,
and other costs associated with the continuous operation
of traffic control, such as integrated traffic control sys-
tems, incident management programs, and traffic control
centers. ‘

(18) Operational improvement. - The term “opera-
tional improvement” —

(A) means (i) a capital improvement for installation of
traffic surveillance and control equipment, computerized
signal systems, motorist information systems, integrated
traffic control systems, incident management programs,
and transportation demand management facilities, strate-
gies, and programs, and (ii) such other capital improve-
ments to public roads as the Secretary may designate, by
regulation; and

(B) does not include resurfacing, restoring, or rehabili-
tating improvements, construction of additional lanes,
interchanges, and grade separations, and construction of a
new facility on a new location.

(19) Park road. — The term “park road” means a public
road, including a bridge built primarily for pedestrian use,
but with capacity for use by emergency vehicles, that is
located within, or provides access to, an area in the Na-
tional Park System with title and maintenance responsi-
bilities vested in the United States.

(20) Parkway. — The term “parkway”, as used in chapter
2 of this title, means a parkway authorized by Act of

App. 36

Congress on lands to which title is vested in the United
States.

(21) Project. — The term “project” means an undertak-
ing to construct a particular portion of a highway, or if the
context so implies, the particular portion of a highway so
constructed or any other undertaking eligible for assis-
tance under this title.

(22) Project agreement. — The term “project agree-
ment” means the formal instrument to be executed by the
State transportation department and the Secretary as
required by section 106.

(23) Public authority. — The term “public authority”
means a Federal, State, county, town, or township, Indian
tribe, municipal or other local government or instrumen-
tality with authority to finance, build, operate, or main-
tain toll or toll-free facilities.

(24) Pubiic lands development roads and trails. —
The term “public lands development roads and trails”
means those roads and trails that the Secretary of the
Interior determines are of primary importance for the
development, protection, administration, and utilization of
public lands and resources under the control of the Secre-
tary of the Interior.

(25) Public lands highway. — The term “public lands
highway” means a forest road under the jurisdiction of and
maintained by a public authority and open to public travel
or any highway through unappropriated or unreserved
public lands, nontaxable Indian lands, or other Federal
reservations under the jurisdiction of and maintained by a
public authority and open to public travel.

App. 37

(26) Public lands highways. — The term “public lands
highways” means those main highways through unappro-
priated or unreserved public lands, nontaxable Indian
lands, or other Federal reservations, which are on the
Federal-aid systems.

~

(27) Public road. — The term “public road” means any
road or street under the jurisdiction of and maintained by
a public authority and open to public travel.

(28) Refuge road. — The term “refuge road” means a
public road that provides access to or within a unit of the
National Wildlife Refuge System and for which title and
maintenance responsibility is vested in the United States
Government.

(29) Rural areas. — The term “rural areas” means all
areas of a State not included in urban areas.

(30) Safety improvement project. — The term “safety
improvement project” means a project that corrects or
improves high hazard locations, eliminates roadside
obstacles, improves highway signing and pavement mark-
ing, installs priority control systems for emergency vehi-
cles at signalized intersections, installs or replaces
emergen¢é; motorist aid call boxes, or installs traffic
control or warning devices at locations with high accident
potential.

(31) Secretary. — The term “Secretary” means Secretary
of Transportation.

(32) State. — The term “State” means any of the 50
States, the District of Columbia, or Puerto Rico.

(33) State funds. — The term “State funds” includes
funds raised under the authority of the State or any

App. 38

political or other subdivision thereof, and made available
for expenditure under the direct control of the State
transportation department.

(34) State transportation department. — The term
“State transportation department” means that depart-
ment, commission, board, or official of any State charged
by its laws with the responsibility for highway construc-
tion.

(35) Transportation enhancement activity. — The
term “transportation enhancement activity” means, with
respect to any project or the area to be served by the
project, any of the following activities as the activities
relate to surface transportation:

(A) Provision of facilities for pedestrians and bicycles.

(B) Provision of safety and educational activities for
pedestrians and bicyclists.

(C) Acquisition of scenic easements and scenic or historic
sites (including historic battlefields).

(D)- Scenic or historic highway programs (including the
provision of tourist and welcome center facilities).

(E) Landscaping and other scenic beautification.
(F) Historic preservation.

(G) Rehabilitation and operation of historic transporta-
tion buildings, structures, or facilities (including historic
railroad facilities and canals).

(H) Preservation of abandoned railway corridors (includ-
ing the conversion and use of the corridors for pedestrian
or bicycle trails).

App. 39

(I) Inventory, control, and removal of outdoor advertis-
ing.

(J) Archaeological planning and research.
(K) Environmental mitigation —
(i) to address water pollution due to highway runoff; or

(ii) reduce vehicle-caused wildlife mortality while main-
taining habitat connectivity.

(L) Establishment of transportation museums.

(36) Urban area. — The term “urban area” means an
urbanized area or, in the case of an urbanized area encom-
passing more than one State, that part of the urbanized
area in each such State, or urban place as designated by
the Bureau of the Census having a population of 5,000 or
more and not within any urbanized area, within bounda-
ries to be fixed by responsible State and local officials in
cooperation with each other, subject to approval by the
Secretary. Such boundaries shall encompass, at a mini-
mum, the entire urban place designated by the Bureau of
the Census, except in the case of cities in the State of
Maine and in the State of New Hampshire.

(37) Urbanized area. — The term “urbanized area”
means an area with a population of 50,000 or more desig-
nated by the Bureau of the Census, within boundaries to
be fixed by responsible State and local officials in coopera-
tion with each other, subject to approval by the Secretary.
Such boundaries shall encompass, at a minimum, the
entire urbanized area within a State as designated by the
Bureau of the Census.

App. 40

(38) Advanced truck stop electrification system. —
The term “advanced truck stop electrification system”
means a system that delivers heat, air conditioning;
electricity, or communications to a heavy duty vehicle.

(b) Declaration of policy. -

(1) Acceleration of construction of Federal-aid
highway systems. — Congress declares that it is in the
national interest to accelerate the construction of Federal-
aid highway systems, including the Dwight D. Eisenhower
National System of Interstate and Defense, because many
of the highways (or portions of the highways) are inade-
quate to meet the needs of local and interstate commerce
for the national and civil defense.

(2) Completion of interstate system. — Congress
declares that the prompt and early completion of the
Dwight D. Eisenhower National System of Interstate and
Defense Highways (referred to in this section as the
“Interstate System”), so named because of its primary
importance to the national defense, is essential to the
national interest. It is the intent of Congress that the
Interstate System be completed as nearly as practicable
over the period of availability of the forty years’ appropria-
tions authorized for the purpose of expediting its construc-
tion, reconstruction, or improvement, inclusive of necessary
tunnels and bridges, through the fiscal year ending Sep-
tember 30, 1996, under section 108(b) of the Federal-Aid
Highway Act of 1956 (70 Stat. 374), and that the entire
System in all States be brought to simultaneous comple-
tion. Insofar as possible in consonance with this objective,
existing highways located on an interstate route shall he
used to the extent that such use is practicable, suitable,
and feasible, it being the intent that local needs, to the

App. 41

extent practicable, suitable, and feasible, shall be given
equa! consideration with the needs of interstate commerce.

(3) Transportation needs of 21st Century. — Congress
declares that —

(A) it is in the national interest to preserve and enhance
the surface transportation system to meet the needs of the
United States for the 21st Century;

(B) the current urban and long distance personal travel
and freight movement demands have surpassed the
original forecasts and travel demand patterns are expected
to continue to change;

(C) continued planning for and investment in surface
transportation is critical to ensure the surface transporta-
tion system adequately mee*s the changing travel de-
mands of the future;

(D) among the foremost needs that the surface transpor-
tation system must meet to provide for a strong and vigor-
ous national economy are safe, efficient, and reliable —

(i) national and interregional personal mobility (includ-
ing personal mobility in rural and urban areas) and
reduced congestion;

(ii) flow of interstate and international commerce and
freight transportation; and

(iii) travel movements essential for national security;

(E) special emphasis should be devoted to providing safe
and efficient access for the type and size of commercial
and military vehicles that access designated National
Highway System intermodal freight terminals;

App. 42

(F) the connection between land use and infrastructure
is significant;

(G) transportation should play a significant role in
promoting economic growth, improving the environment,
and sustaining the quality of life; and

(H) the Secretary should take appropriate actions to
preserve and enhance the Interstate System to meet the
needs of the 21st Century.

(c) It is the sense of Congress that under existing law no
part of any sums authorized to be appropriated for expen-
diture upon any Federal-aid system which has been
apportioned pursuant to the provisions of this title shall be
impounded or withheld from obligation, for purposes and
projects as provided in this title, by any officer or employee
in the executive branch of the Federal Government, except
such specific sums as may be determined by the Secretary
of the Treasury, after consultation with the Secretary of
Transportation, are necessary to be withheld from obliga-
tion for specific periods of time to assure that sufficient
amounts will be available in the Highway Trust Fund to
defray the expenditures which will be required to be made
from such fund.

(d) No funds authorized to be appropriated from the
Highway Trust Fund shall be expended by or on behalf of
any Federal department, agency, or instrumentality other
than the Federal Highway Administration unless funds for
such expenditure are identified and included as a line item
in an appropriation Act and are to meet obligations of the
United States heretofore or hereafter incurred under this
title attributable to the construction of Federal-aid high-
ways or highway planning, research, or development, or as
otherwise specifically authorized to be appropriated from

App. 43

the Highway Trust Fund by Federal-aid nighway legisla-
tion.

(e) It is the national policy that to the maximum extent
possible the procedures to be utilized by the Secretary and
all other affected heads of Federal departments, agencies,
and instrumentalities for carrying out this title and any
other provision of law relating to the Federal highway
programs shall encourage the substantial minimization of
paperwork and interagency decision procedures and the
best use of available manpower and funds so as to prevent
needless duplication and unnecessary delays at all levels
of government.

23 U.S.C.A. § 152. Hazard elimination program
Current through P.L. 109-239 approved 07-03-06

(a) In general. —

(1) Program. — Each State shall conduct and systemati-
cally maintain an engineering survey of all public roads to
identify hazardous locations, sections, and elements,
including roadside obstacles and unmarked or poorly
marked roads, which may constitute a danger to motorists,
bicyclists, and pedestrians, assign priorities for the correc-
tion of such locations, sections, and elements, and estab-
lish and implement a schedule of projects for their
improvement.

(2) Hazards. — In carrying out paragraph (1), a State
may, at its discretion —

(A) identify, through a survey, hazards to motorists,
bicyclists, pedestrians, and users of highway facilities; and

App. 44

(B) develop and implement projects and programs to
address the hazards.

(b) The Secretary may approve as a project under this
section any safety improvement project, including a project
described in subsection (a).

(c) Funds authorized to carry out this section shall be
available for expenditure on —

(1) any public road;

(2) any public surface transportation facility or any
publicly owned bicycle or pedestrian pathway or trail; or

(3) any traffic calming measure.

(d) The Federal share payable on account of any project
under this section shall be 90 percent of the cost thereof.

(e) Funds authorized to be appropriated to carry out this
section shall be available for obligation in the same man-
ner and to the same extent as if such funds were appor-
tioned under section 104(b), except that the Secretary is
authorized to waive provisions he deems inconsistent with
the purposes of this section.

(f) Each State shall establish an evaluation process
approved by the Secretary, to analyze and assess results
achieved by safety improvement projects carried out in
accordance with procedures and criteria established by
this section. Such evaluation process shall develop cost-
benefit data for various types of corrections and treat-
ments which shall be used in setting priorities for safety
improvement projects.

(g) Each State shall report to the Secretary of Transpor-
tation not later than December 30 of each year, on the

App. 45

progress being made to implement safety improvement
projects for hazard elimination and the effectiveness of
such improvements. Each State report shall contain an
assessment of the cost of, and safety benefits derived from,
the various means and methods used to mitigate or elimi-
nate hazards and the previous and subsequent accident
experience at these locations. The Secretary of Transporta-
tion shall submit a report to the Committee on Environ-
ment and Public Works of the Senate and the Committee
on Transportation and Infrastructure of the House of
Representatives not later than April 1 of each year on the
progress being made by the States in implementing the
hazard elimination program (including but not limited to
any projects for pavement marking). The report shall
include, but not be limited to, the number of projects
undertaken, their distribution by cost range, road system,
means and methods used, and the previous and subse-
quent accident experience at improved locations. In
addition, the Secretary's report shall analyze and evaluate
each State program, identify any State found not to be in
compliance with the schedule of improvements required by
subsection (a) and include recommendations for future
implementation of the hazard elimination program.

(h) For the purposes of this section the term “State” shall
have the meaning gives »t in section 401 of this title.

23. U.S.C.A. § 402. Highway safety programs
Current through P.L. 109-239 approved 07-03-06

(a) Each State shall have a highway safety program
approved by the Secretary, designed to reduce traffic
accidents and deaths, injuries, and property damage

App. 46

resulting therefrom. Such programs shall be in accordance
with uniform guidelines promulgated by the Secretary.
Such uniform guidelines shall be expressed in terms of
performance criteria. In addition, such uniform guidelines
shall include programs (1) to reduce injuries and deaths
resulting from motor vehicles being driven in excess of
posted speed limits, (2) to encourage the proper use of
occupant protection devices (including the use of safety
belts and child restraint systems) by occupants of motor
vehicles, (3) to reduce deaths and injuries resulting from
persons driving motor vehicles while impaired by alcohol
or a controlled substance, (4) to prevent accidents and
reduce deaths and injuries resulting from accidents
involving motor vehicles and motorcycles, (5) to reduce
injuries and deaths resulting from accidents involving
school buses, and (6) to reduce accidents resulting from
unsafe driving behavior (including aggressive or fatigued
driving and distracted driving arising from the use of
electronic devices in vehicles) (7) to improve law enforce-
ment services in motor vehicle accident prevention, traffic
supervision, and post-accident procedures. The Secretary
shall establish a highway safety program for the collection
and reporting of data on traffic-related deaths and injuries
by the States. Under such program, the States sha!l collect
and report such data as the Secretary may require. The
purposes of the program are to ensure natioral uniform
data on such deaths and injuries and to allow the Secre-
tary to make determinations for use in developing programs
to reduce such deaths and injuries and making recommenda-
tions to Congress concerning legislation necessary to imple-
ment such programs. The program shall provide for annual
reports to the Secretary on the efforts being made by the
States in reducing deaths and injuries occurring at high-
way construction sites and the effectiveness and results of

App. 47

such efforts. The Secretary shall establish minimum
reporting criteria for the program. Such criteria shall
include, but not be limited to, criteria on deaths and
injuries resulting from police pursuits, school bus acci-
dents, aggressive driving, fatigued driving, distracted
driving, and speeding, on traffic-related deaths and
injuries at highway construction sites and on the configu-
ration of commercial motor vehicles involved in motor
vehicle accidents. Such uniform guidelines shall be prom-
ulgated by the Secretary so as to improve driver perform-
ance (including, but not limited to, driver education, driver
testing to determine proficiency to operate motor vehicles,
driver examinations (both physical and mental) and driver
licensing) and to improve pedestrian performance and
bicycle safety. In addition such uniform guidelines shall
include, but not be limited to, provisions for an effective
record system of accidents (including injuries and deaths
resulting therefrom), accident investigations to determine
the probable causes of accidents, injuries, and deaths,
vehicle registration, operation, and inspection, highway
design and maintenance (including lighting, markings,
and surface treatment), traffic control, vehicle codes and
laws, surveillance of traffic for detection and correction of
high or potentially high accident locations, enforcement of
light transmission standards of window glazing for pas-
senger motor vehicles and light trucks as necessary to
improve highway safety, and emergency services. Such
guidelines as are applicable to State highway safety
programs shall, to the extent determined appropriate by
the Secretary, be applicable to federally administered
areas where a Federal department or agency controls the
highways or supervises traffic operations.

App. 48

(b) Administration of State programs. —

(1) Administrative requirements. - The Secretary
may not approve a State highway safety program under
this section which does not —

(A) provide that the Governor of the State shall be
responsible for the administration of the program through
a State highway safety agency which shall have adequate
powers and be suitably equipped and organized to carry
out, to the satisfaction of the Secretary, such program;

(B) authorize political subdivisions of the State to carry
out local highway safety programs within their jurisdic-
tions as a part of the State highway safety program if such
local highway safety programs are approved by the Gover-
nor and are in accordance with the minimum standards
established by the Secretary under this section;

(C) except as provided in paragraph (3), provide that at
least 40 percent of all Federal funds apportioned under
this section to the State for any fiscal year will be ex-
pended by the political subdivisions of the State, including
Indian tribal governments, in carrying out local highway
safety programs authorized in accordance with subpara-
graph (B);

(D) provide adequate and reasonable access for the safe
and convenient movement of individuals with disabilities,
including those in wheelchairs, across curbs constructed or
replaced on or after July 1, 1976, at all pedestrian cross-
walks throughout the State; and

(E) provide satisfactory assurances that the State will
implement activities in support of national highway safety
goals to reduce motor vehicle related fatalities that also
reflect the primary data-related crash factors within a

App. 49

State as identified by the State highway safety planning
process, including —

(i) national law enforcement mobilizations;

(ii) sustained enforcement of statutes addressing im-
paired driving, occupant protection, and driving in excess
of posted speed limits;

(iii) an annual statewide safety belt use survey in
accordance with criteria established by the Secretary for
the measurement of State safety belt use rates to ensure
that the measurements are accurate and representative;
and

(iv) development of statewide data systems to provide
timely and effective data analysis to support allocation of
highway safety resources.

(2) Waiver. — The Secretary may waive the requirement
of paragraph (1)(C), in whole or in part, for a fiscal year for
any State whenever the Secretary determines that there is
an insufficient number of local highway safety programs to
justify the expenditure in the State of such percentage of
Federal funds during the fiscal year.

(3) Use of technology for traffic enforcement. — The
Secretary may encourage States to use technologically
advanced traffic enforcement devices (including the use of
automatic speed detection devices such as photo-radar) by
law enforcement officers.

(c) Funds authorized to be appropriated to carry out this
section shall be used to aid the States to conduct the
highway safety programs approved in accordance with
subsection (a), including development and implementation
of manpower training programs, and of demonstration

programs that the Secretary determines will contribute
directly to the reduction of accidents, and deaths and
injuries resulting therefrom. Such funds shall be appor-
tioned 75 per centum in the ratio which the population of
each State bears to the total population of all the States,
as shown by the latest available Federal census, and 25
per centum in the ratio which the public road mileage in
each State bears to the total public road mileage in all
States. For the purposes of this subsection, a “public road”
means any road under the jurisdiction of and maintained
by a public authority and open to public travel. Public road
mileage as used in this subsection shall be determined as —
of the end of the calendar year preceding the year in which
the funds are apportioned and shall be certified to by the
Governor of the State and subject to approval by the
Secretary. The annual apportionment to each State shall
not be less than one-half of 1 per centum of the total
apportionment, except that the apportionment to the
Secretary of the Interior shall not be less than 2 percent of
the total apportionment and the apportionments to the
Virgin Islands, Guam, American Samoa, and the Com-
monwealth of the Northern Mariana Islands shall not be
less than one-quarter of 1 per centum of the total appor-
tionment. The Secretary shall not apportion any funds
under this subsection to any State which is not imple-
menting a highway safety program approved by the
Secretary in accordance with this section. For the purpose
of the seventh sentence of this subsection, a highway
safety program approved by the Secretary shall not
include any requirement that a State implement such a
program by adopting or enforcing any law, rule, or regula-
tion based on a guideline promulgated by the Secretary
under this section requiring any motorcycle operator
eighteen years of age or older or passenger eighteen years

App. 51

of age or older to wear a safety helmet when operating or
riding a motorcycle on the streets and highways of that
State. Implementation of a highway safety program under
this section shall not be construed to require the Secretary
to require compliance with every uniform guideline, or
with every element of every uniform guideline, in every
State. Funds apportioned under this section to any State,
that does not have a highway safety program approved by
the Secretary or that is not implementing an approved
program, shall be reduced by amounts equal to not less
than 50 per centum of the amounts that would otherwise
be apportioned to the State under this section, until such
time as the Secretary approves such program or deter-
mines that the State is implementing an approved pro-
gram, as appropriate. The Secretary shall consider the
gravity of the State’s failure to have or implement an
approved program in determining the amount of the
reduction. The Secretary shall promptly apportion to the
State the funds withheld from its apportionment if he
approves the State’s highway safety program or deter-
mines that the State has begun implementing an approved
program, as appropriate, prior to the end of the fiscal year
for which the funds were withheld. If the Secretary deter-
mines that the State did not correct its failure within such
period, the Secretary shall reapportion the withheld funds
to the other States in accordance with the formula speci-
fied in this subsection not later than 30 days after such
determination.

(d) All provisions of chapter 1 of this title that are
applicable to National Highway System highway funds
other than provisions relating to the apportionment
formula and provisions limiting the expenditure of such
funds to the Federal-aid systems, shall apply to the

App. 52

highway safety funds authorized to be appropriated to
carry out this section, except as determined by the Secre-
tary to be inconsistent with this section, and except that
the aggregate of all expenditures made during any fiscal
year by a State and its political subdivisions (exclusive of
Federal funds) for carrying out the State highway safety
program (other than planning and administration) shall
be available for the purpose of crediting such State during
such fiscal year for the non-Federal share of the cost of
any project under this section (other than one for planning
or administration) without regard to whether such expen-
ditures were actually made in connection with such project
and except that, in the case of a local highway safety
program carried out by an Indian tribe, if the Secretary is
satisfied that an Indian tribe does not have sufficient
funds available to meet the non-Federal share of the cost
of such program, he may increase the Federal share of the
cost thereof payable under this Act to the extent necessary.
In applying such provisions of chapter 1 in carrying out
this section the term “State transportation department” as
used in such provisions shall mean the Governor of a State
for the purposes of this section.

(e) Uniform guidelines promulgated by the Secretary to
carry out this section shall be developed in cooperation
with the States, their political subdivisions, appropriate
Federal departments and agencies, and such other public
and private organizations as the Secretary deems appro-
priate.

(f) The Secretary may make arrangements with other
Federal departments and agencies for assistance in the
preparation of uniform guidelines for the highway safety
programs contemplated by subsection (a) and in the
administration of such programs. Such departments and

App. 53

agencies are directed to cooperate in such preparation and
administration, on a reimbursable basis.

(g) Nothing in this section authorizes the appropriation
or expenditure of funds for (1) highway construction,
maintenance, or design (other than design of safety fea-
tures of highways to be incorporated into guidelines) or (2)
any purpose for which funds are authorized by section 403
of this title.

[((h) Repealed. Pub. L. 97-35, Title XI, § 1107(c), Aug. 13,
1981, 95 Stat. 626]

(i) Application in Indian country. -

(1) Use of terms. — For the purpose of application of this
section in Indian country, the terms “State” and “Governor
of a State” include the Secretary of the Interior and the
term “political subdivision of a State” includes an Indian
tribe.

(2) Expenditures for local highway programs. —
Notwithstanding subsection (b)(1)(C), 95 percent of the
funds apportioned to the Secretary of the Interior under
this section shall be expended by Indian tribes to carry out
highway safety programs within their jurisdictions.

(3) Access for individuals with disabilities. — The
requirements of subsection (b)(1)(D) shall be applicable to
Indian tribes, except to those tribes with respect to which
the Secretary determines that application of such provi-
sions would not be practicable.

(4) Indian country defined. — In this subsection, the
term “Indian country” means —

App. 54

(A) all land within the limits of any Indian reservation
under the jurisdiction of the United States, notwithstand-
ing the issuance of-any patent and including rights-of-way
running through the reservation;

(B) all dependent Indian communities within the borders
of the United States, whether within the original or
subsequently acquired territory thereof and whether
within or without the limits of a State; and

(C) all Indian allotments, the Indian titles to which have
not been extinguished, including rights-of-way running
through such allotments.

(j) Rulemaking proceeding. — The Secretary may
periodically conduct a rulemaking process to identify
highway safety programs that are highly effective in
reducing motor vehicle crashes, injuries, and deaths. Any
such rulemaking shall take into account the major role of
the States in implementing such programs. When a rule
promulgated in accordance with this section takes effect,
States shall consider these highly effective programs when
developing their highway safety programs.

(k)(1) Subject to the provisions of this subsection, the
Secretary shall make a grant to any State which includes,
as part of its highway safety program under section 402 of
this title, the use of a comprehensive computerized safety
recordkeeping system designed to correlate data regarding
traffic accidents, drivers, motor vehicles, and roadways.
Any such grant may only be used by such State to estab-
lish and maintain a comprehensive computerized traffic
safety recordkeeping system or to obtain and operate
components to support highway safety priority programs
identified bh’ the Secretary under this section. Notwith-
standing amy other provision of law, if a report, list,

App. 55

schedule, or survey is prepared by or for a State or politi-
cal subdivision thereof under this subsection, such report,
list, schedule, or survey shall not be admitted as evidence
or used in any suit or action for damages arising out of any
matter mentioned in such report, list, schedule, or survey.

(2) No State may receive a grant under this subsection in
more than two fiscal years.

(3) The amount of the grant to any State under this
subsection for the first fiscal year such State is eligible for
a grant under this subsection shall equal 10 per centum of
the amount apportioned to such State for fiscal year 1985
under this section. The amount of a grant to any State
under this subsection for the second fiscal year such State
is eligible for a grant under this subsection shall equal 10
per centum of the amount apportioned to such State for
fiscal year 1986 under this section.

(4) A State is eligible for a grant under this subsection if —

(A) it certifies to the Secretary that it has in operation a
computerized traffic safety recordkeeping system and
identifies proposed means of upgrading the system accept-
able to the Secretary; or

(B) it provides to the Secretary a plan acceptable to the
Secretary for establishing and maintaining a computerized
traffic safety recordkeeping system.

(5) The Secretary, after making the deduction authorized
by the second sentence of subsection (c) of this section for
fiscal years 1985 and 1986, shall set aside 10 per centum
of the remaining funds authorized to be appropriated to
carry out this section for the purpose of making grants
under this subsection. Funds set aside under this subsec-
tion shall remain available for the fiscal year authorized

App. 56

and for the succeeding fiscal year and any amounts re-
maining unexpended at the end of such period shall be
apportioned in accordaxice with the provisions of subsec-
tion (c) of this section.

(1) Law enforcement vehicular pursuit training. —A
State shall actively encourage all relevant law enforce-
ment agencies in such State to follow the guidelines
established for vehicular pursuits issued by the Interna-
tional Association of Chiefs of Police that are in effect on
the date of enactment of this subsection or as revised and
in effect after such date as determined by the Secretary.

(m) Consolidation of grant applications. - The
Secretary shall establish an approval process by which a
State may apply for all grants under this chapter through
a single application process

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1189%3A1. Public record. Not legal advice.