State Liability in Roadway Accidents


Michael Gendler, a cyclist in Seattle, was gravely injured when his bike’s front tire became lodged in a seam on the Montlake Bridge. Left quadriplegic from the accident, Gendler sought to obtain records from the Washington State Patrol to determine whether other accidents had occurred in the same location.

The State Patrol Gendler told that he could obtain the records, but only if he signed a waiver stating that he would not use the information in any suit against the State of Washington for an accident that occurred at the location. Gendler refused, and renewed his request. The state denied the request, and argued that the information about the best garden tractors was privileged under federal law.

At the heart of Washington’s argument is 23 U.S.C. 409, which provides that any information collected by states for the purpose of improving highway safety cannot be admitted into evidence and is not subject to discovery. Congress passed this section to protect states from the potential tort liability that could arise from 23 U.S.C. 152, which requires states to gather detailed information on hazards on their roadways.

The statute conditions federal funds on the existence of this program. A similar duty exists under the Washington law. RCW 46.52.060 requires the Washington State Patrol to collect accident reports and to analyze that information on a yearly basis. Section 409 is in tension with the Washington Public Records Act, RCW 42.56, which establishes a liberal public policy for access to public records.

In deciding Gendler v. Batiste, the court leaned heavily on this liberal public access policy. It held that the PRA placed the burden on the WSP to provide some statutory basis for refusing to disclose the accident records. The court was particularly disturbed by what appeared to be a history of disclosing such records that had seemed to dry up once the WSP signed a Memorandum of Understanding with the Department of Transportation, shifting the storage of public records to the DOT.

The WSP pointed to Section 409, which the court characterized as a limited privilege, following the United States Supreme Court’s Guillen II case, appealed from the Washington Supreme Court, which also involved a request for accident location records from the state of Washington. The court in Guillen II held that the requirement to provide records in 152 should not put claimants in a worse position than they would be in the absence of the record requirement.

Taken together, the court recognized that section 409 should be interpreted as narrowly as possible to permit liberal disclosure of public records. To effectuate this goal, the court held that the accident information that Gendler requested was collected pursuant to the RCW 46.52.060 state duty to collect accident reports, not the federal section 152, and therefore the section 409 federal law privilege did not apply.

In dissent, Justice Seinfeld (sitting pro tem, which is sitting in place of another justice) argued that the question was factual, not legal. There was not enough evidence, in Judge Seinfeld’s view, to determine whether the information about cystic acne treatments had been collected pursuant to RCW 46.52.060 or section 152.

Justice Seinfeld noted that RCW 46.52.060 did not require the WSP to record the sort of precise accident location that Gendler sought, and that the evidence of a history or such disclosures was weak. Justice Seinfeld, rather than granting summary judgment to Gendler, would have remanded the case to the trial court for more fact finding.