How to Keep “Preventable Accident” Determinations From Being Admitted Into Evidence at Trial
october 31, 2016
By: Gary Schwab
A truck accident causing third-party personal injury or property damage occurs. After conducting an investigation, the company’s safety officer or safety manager prepares a report of accident review finding that the accident was preventable. A disciplinary letter is issued to the truck driver notifying him of the company’s determination that the accident was preventable. Thereafter, the third-party injured plaintiff files a lawsuit and attempts to introduce into evidence all documents containing the “preventable accident” determination as an admission of fault by the company, and hence its liability, for what happened. The company objects to the admissibility of the documents into evidence. How will the court rule?
Objections will likely be made to exclude the evidence on grounds that it is irrelevant, see Fed. R. Evid. 401, 402; that it is unduly prejudicial, see Fed. R. Evid. 403; that it is inadmissible as a remedial measure, see Fed. R. Evid. 407; that it is inadmissible lay opinion, see Fed. R. Evid. 701; and that public policy requires the exclusion of self-critical analysis.
There is no federal requirement that a transportation company determine whether an accident is preventable. Nonetheless, such internal post-accident determinations are made to understand why accidents happen and how to avoid or prevent them in the future. In making such a determination, the company’s intent is not made to place legal blame. Obviously, plaintiffs’ attorneys disagree and will argue to the contrary that a company’s “preventable accident” determination is an admission of fault.
While only relevant evidence is admissible, Fed. R. Evid. 402, relevant evidence is defined broadly as any evidence having a tendency to make the existence of any fact…. more probable or less probable that it would be without the evidence. Fed. R. Evid. 401. It doesn’t take much to establish that evidence may be relevant and for that reason such objection oftentimes fails.
However, just because evidence is relevant doesn’t mean that it is admissible, especially if it is prejudicial, confusing or could be misleading. Fed. R. Evid. 403. For example, an accident deemed “preventable” isn’t necessarily due to “negligence” on the part of the company or its driver. Under Illinois law, negligence means “the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do” under the same or similar circumstances. Within the transportation industry, the National Safety Council, the American Trucking Association, and the Federal Motor Carrier Regulations, each has a different definition of “preventable.” Transportation companies frequently rely upon one of their definitions.
The National Safety Council says a “preventable collision is one in which the driver failed to do everything that reasonably could have been done to avoid the accident.” Under that definition of “preventable,” requiring a driver to anticipate and avoid the carelessness of other drivers imposes a higher standard of care upon the truck driver and its company than exists under the common law definition of “negligence.” As one court stated, “[a]lthough the standards appear similar, the National Safety Council makes clear that its preventability standard is ‘not solely based on or determined by legal liability,’” Villalba v. Consolidated Freightways Corp., 2000 U.S. Dist. LEXIS 11773 at *19 (N.D. Ill. Aug. 14 2000). The preventable accident determination made in that case was deemed inadmissible for the reason that the two standards may confuse and mislead the jury, and thus be unduly prejudicial to the trucking company if allowed into evidence.
On the other hand, Section 385.3 of the Federal Motor Carrier Regulations defines a preventable accident as “an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver.” 49 C.F.R. 385.3. A court, interpreting that definition of preventable, held that its meaning was “no different from the meaning of the term in the ordinary usage,” and thus allowed introduction of the company’s preventable accident determination into evidence. The court found that “no confusion or prejudice would result from the introduction of the contested evidence. On the other hand, it appears that prejudice would result if the evidence were excluded, …”Brossette v. Swift Trans Co., No. 07-0888 2008 U.S. Dist. LEXIS 112907 at *7 (W.D. La. Oct. 30 2008)
So, it is important to know what definition of “preventable” was used. The closer the definition of preventable is to the definition of common law negligence, the more likely the court will admit the company’s finding of a “preventable accident” into evidence. On the other hand, when the company relies upon a definition of preventable that implicates its truck driver, even under situations where the other driver was at fault, it becomes less likely that the court will allow the “preventable accident” determination into evidence, due to the use of it being unfairly prejudicial and confusing to the jury.
An objection can be made that a “preventable accident” determination is inadmissible on account of it being the result of a subsequent remedial measure. Fed. R. Evid. 407. Under that rule, measures taken after an accident that would make an earlier injury or harm less likely to occur, are not admissible to prove negligence. A majority of jurisdictions, though, agree that post-incident investigations and reports of investigations do not constitute subsequent remedial measures. They find that there is a difference between an investigation and actual steps taken to correct a problem. Post-event investigations do not themselves constitute remedial measures, although they might provide the basis for such measures. Other courts disagree and have held that a post-accident investigation is a “prerequisite to any remedial safety measure” and is “inextricably bound up with the subsequent remedial measures” and was therefore inadmissible. See Villalba, No. 98 C 5347, 2000 U.S. Dist. LEXIS 11773 (N.D. Ill. Aug. 14 2000) and J. B. Hunt Transp., Inc. v. Zak, 58 N.E.3d 956 (C.A. Ind. 2016) for citations to cases in support of each position. In the latter case, the court defined “measures” to mean concrete actions, and left outside the rule’s prohibition preliminary investigations and recommendations pointing toward those actions, and thus found no error in the trial court admitting a post-accident report into evidence.
Another objection to the admissibility of a “preventable accident” determination is that it is merely an opinion of a lay witness, and not that of an expert “based on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701(c). Oftentimes, preventable accident determinations are made by lay people who are not experts in the field of accident reconstruction. In federal court, a witness may not testify as to a matter unless he or she has personal knowledge of the matter. Fed. R. Evid. 602. However, where the person making the statement did so on behalf of a party as its agent or employee on a matter within the scope of his relationship with that party, such as a safety officer, Fed. R. Evid. 801(d)(2)(D) provides that such statement is not hearsay. The question then becomes whether it is otherwise objectionable. According to the Seventh Circuit U.S. Court of Appeals, “the 1972 advisory committee notes to Rule 801 suggest that admissions are sometimes free from the personal knowledge requirement of Rule 602.” Mister v. Northeast Ill. Commuter R.R. Corp., 571 F.3d 696, 699 (7th Cir. 2009). So, it will be difficult to exclude the admissibility of a “preventable accident” determination made by the company’s safety officer solely on the grounds that he had no firsthand knowledge of what occurred. However, in the Mister case (which did not involve a “preventable accident” determination), the Seventh Circuit stated that Rule 801(d)(2) did not trump all other rules of evidence and held that it was not improper in that case for the district court to find that the company’s accident report was unreliable because although the accident report itself was not hearsay, it was nonetheless “based on … multiple levels of hearsay and lack of precise factual statements.” Mister, 571 F.3d at 699. The accident report was barred under Fed. R. of Evid. 403 because its prejudicial effect outweighed its probative value. Similarly, in Thakore v. Universal Mach. Co. of Pottstown, 670 F. Supp. 2nd 705 (N.D. Ill. 2009), a district court barred the introduction of an accident report (which again did not contain a “preventable accident” determination) made by plaintiff’s employer on the grounds that it was functionally equivalent to an expert report without the informative detail that federal courts require of expert reports in order that there be an intelligent assessment of the basis on which the expert’s conclusions rest. The district court determined that the report was nothing more than a series of “unadorned conclusions” the validity of which depended on the author possessing specialized knowledge, and that it would be prejudicial under Rule 403 of the Federal Rules of Evidence to allow the jury to be exposed to conclusions about the ultimate issues in the case without having any basis to evaluate the reliability of the methodology used to arrive at the conclusion, and the validity of the conclusion itself would put the jury in a take-it-or-leave-it position and force it to guess at what to do. Thakore, (670 F. Supp 2nd at 724.) So, where it is impossible to determine who provided the underlying factual information on which the preventable accident determination was based, and whether those persons had knowledge or were repeating what they had been told by people whose knowledge was uncertain, or where there is no informative detail in the report to support that determination, it may be possible to exclude a preventable accident determination, not under Rule 602, but more likely under Rule 403 of the Federal Rules of Evidence that its probative value is outweighed by its prejudicial effect upon the case.
Some have argued that a report containing a “preventable accident” determination is inadmissible under the shield of the “critical self-analysis” privilege. One of the purposes of the privilege is to prevent a “chilling” effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by instituting practices assuring safer operations. The argument is that allowing a “preventable accident” report into evidence would hamper and impede honest, self-evaluation, which is needed to prevent future accidents. See Harper v. Griggs, No. 04-260-C, 2006 U.S. Dist. LEXIS 64691 (W.D. Ky. Sept. 11 2006). Not long ago, the Illinois Supreme Court refused to recognize the self-critical analysis privilege, stated that whether it should be, or has been generally, recognized in the federal courts is a matter of disagreement, and noted that a federal district court observed that the United States Supreme Court had explicitly declined to introduce a “self-critical analysis” privilege into the federal common law. Harris v. One Hope United, Inc., 2015 IL 117200.
Finally, another basis exists that may be invoked to prevent the disclosure and admissibility of preventability determinations. Even though there is no federal regulation requiring transportation companies to make preventability determinations, the Federal Motor Carrier Safety Administration (FMCSA) requires motor carriers to document accidents for its safety rating process and takes into account preventability of accidents when evaluating a trucking company’s safety rating. In 49 U.S.C. 504(f), the FMCSA states:
No part of a report of an accident occurring in operations of a motor carrier . . . and required by the Secretary . . . may be admitted into evidence or used in a civil action for damages related to a matter mentioned in the report or investigation.
This provision has been interpreted to preclude the admissibility, not only of the accident report but also information used to prepare the report required by the FMCSA. To take advantage of the protection provided by the FMCSA, though, it is necessary to establish that the report containing the “preventable accident” determination was prepared to satisfy FMCSA. See Tyson v. Old Dominion Freight Line, Inc., 608 S.E.2d 266, 269 (Ga. Ct. App. 2004) where there was no evidence that the preventability documents were prepared to satisfy 49 U.S.C. 504(f) and thus it could not be invoked as a basis to shield them from the plaintiff.
In summary, the likelihood of keeping a “preventable accident” determination out of evidence increases the more that your company’s definition of “preventable” departs from the traditional definition of common law “negligence,” such as where an accident is classified as preventable, even though the other driver is at fault, simply because the truck driver could have taken defensive measures so as to not be put in a position that allowed the accident to happen. Also, Section 504(f) of FMCSA can be invoked to shield a “preventable accident” determination to the extent it is in a report used to satisfy FMCSA’s reporting requirement.