Quick ‘preventability’ determination can be costly

Avatar photo
Photo: iStock

Your driver had an accident.  You determine that it was “preventable”. You file the determination away.  File closed.

Closed, that is, until a lawsuit is filed. The court may hold that you have admitted fault by finding the accident was “preventable” based upon your company’s definition of “preventable”.

You can protect your company. Make sure your definition of “preventable” is not written in a way that creates an admission of fault.

Write your determination in a way that will give the plaintiff pause. Establish a procedure that gives you the best argument that your process and conclusion is not “discoverable” in the suit.

And ultimately, in the most severe cases, defer a decision until after the trial or settlement. Absent these steps, you may find that you have a self-inflicted harm by a rush to determine “preventability” or failure to do so in a way that does not harm your company or driver.

Definition of ‘preventable’

Ensure that your definition of “preventable” is not tantamount to the definition of “negligence”.

“Negligence” is that someone did something that was not “reasonable under the circumstances” or failed to do something that was “reasonable under the circumstances”.

If your definition of “preventable” includes the “reasonableness” of the action or inaction of your driver, your determination runs the risk of being an admission of “negligence” by your driver.

Instead, align your definition with the definition in Section 385.3. That section states that a “preventable accident on the part of a motor carrier means 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” (the emphasis is mine). It totally omits whether the “act” or “failure to act” was reasonable under the circumstances.

Was there something your driver did or could have done that resulted in the accident?  Even if the answer is “yes”, whether or not that act or omission was “reasonable under the circumstances” remains an open question.

Semantics?  Sure, but that is the nature of legal proceedings. And why not avoid losing a winnable case because of semantics.

Three steps

The way you determine “preventability” may expose you and your employees to depositions and your conclusion to discovery. While there is no absolute protection from this, you can minimize the possibility.

First, limit the involvement of individuals as much as possible. If your driver provides their version, orally or in writing, it may be discoverable.

Everyone involved in the process who read or heard that version could potentially be a witness in a lawsuit. And what is the chance that their testimony will be totally consistent?

Consider a streamlined system limiting the people involved and based on the information available such as the police report or the driver’s initial accident report.  Additionally, utilize the data resources such as ECM data, onboard cameras, and telematics.

Second, align your process as being for FMCSA purposes.  While a determination of “preventability” is not specifically required by FMCSA regulations, it is necessary to defend your accidents in either an audit or for purposes of hazmat permitting. The ATA Preventability Guide provides a framework that aligns with these purposes.

Following these procedures provides you the argument that your process and conclusion is not discoverable as it was part of a “critical self-analysis”. While this is not recognized by every jurisdiction, doing so gives you the argument in those that do.

Third, when writing your conclusion, include what the other driver did or failed to do.  Think about it — if your determination must be turned over and the plaintiff wants to use it against you, give them something to think about by including what they did or failed to do that caused the accident.

Want to present to the jury the preventability determination as to what our driver did?  To do so, you will have to present what is included as to your driver.

Delay your decision

In the most serious cases, do not make a “preventability” decision until after the case is done — by settlement or trial. If you are going to do this, be consistent. Apply this to all cases, whether the outcome is anticipated to be favorable or unfavorable.

By forgoing the “preventability” determination until after all the evidence is in, you are being fair to both your driver and the other party. It is not unusual for facts to come to light late in the case. Expert reports, analyzing the data and giving opinions as to the cause, are rarely completed until after all the discovery is completed so that they can have the benefits of all the facts.

Additionally, by waiting until after all the facts, and potentially after the trial, the issue of discoverability and admissibility is avoided. There is nothing to discover. There is nothing to admit.


Your “preventability” determination can be costly to your company if not done in a way that avoids an admission of fault, maximizes protection from discovery, and is arguably protected by privilege.  Review your definition and your process.

It is tough enough for trucking companies in this litigious world. The last thing you need is a self-inflicted wound that could have been avoided.


Avatar photo

Doug Marcello, a shareholder with the law firm of Saxton & Stump and chief legal officer of Bluewire, is a trucking defense attorney with a CDL. He had represented trucking clients across the country, having been specially admitted for cases in 35 states. Doug received the 2018 Leadership Award of the ATA Safety Council.

He has served on the advisory board of the American Trucking Research Institute. Doug is a member of numerous trucking organizations, including a board member of the Pennsylvania Motor Truck Association and member of the American Trucking Associations Safety Council as well as trucking law organizations including TIDA and Transportation Lawyers. He has written numerous articles concerning trucking safety and defense which can be found at www.cdl-law.com. You can also find his interviews and presentation on his YouTube channel and podcast, “TransportCenter”, on iTunes.

Have your say

This is a moderated forum. Comments will no longer be published unless they are accompanied by a first and last name and a verifiable email address. (Today's Trucking will not publish or share the email address.) Profane language and content deemed to be libelous, racist, or threatening in nature will not be published under any circumstances.


  • I like your comments on this subject! One question I have is that if no suit is filed immediately, how do you defend the actions of your company if they did not remove the driver from
    driving and they are involved in another accident? I am talking about when the liability is so clear, such as your driver ran a traffic light, how can you justify not making a determination in order to separate employment with that driver?
    This is a tricky topic and attorneys are always looking for a way to find a loop hole to get their hands on your records to use against you in court.

    Thanks for your article!

  • I was invloved in a rear end traffic accident. driver cut in front of the truck and little time to break. althougth the tractor truck sustain no damage. the motorist had some previous reat end damage to vehicle. after the motorist gave there information, the person left the s een. when the trooper arrived and took the report ,he called the motorist on the phone to meet with the person that was in involved in an accident. the motorist according to the officer was hasitant to meet with the officer. request that the officer mail the report to the motorist. the officer ran the motorist licenst plate number and it came back that the motorist had a suspended license, a expired registration, no insurance and an outstanding warrant for the motorist arrest. this was my first proventable accident. I was call in to the office the next day and suspended from duty. four days later I was terminated.