When safety is punished

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Safe practices are being punished when companies’ post-accident safety analysis is exposed for use against them in lawsuits.

It shouldn’t be this way, and doesn’t have to be.

The problem is that post-accident analysis and the remedial actions taken by trucking companies are generally both discoverable and admissible in court. Not only do you have to turn them over during a lawsuit, but they can be used against you at trial.

These companies are just doing what they should to prevent future accidents and protect the motoring public. Doing what regulators want them to do, but turn around and are punished for doing so.

Think about it like this: Your neighbor up the street, let’s call him Karl, doesn’t do anything about that crack in the sidewalk and ultimately someone trips, falls, and is hurt.

If Karl fixes that sidewalk after the fact, the repair is inadmissible at trial. We all want Karl to do what’s needed to protect the walking public.

Thus, the courts generally hold that these post-accident repairs, called “subsequent remedial measures,” are not admissible. We want people to do the repairs to protect others and prevent accidents.

Makes sense?

Your company does a post-accident evaluation and determines preventability, does a root cause analysis, looks to keep an accident from happening again and not only do you have to provide the information to the other side, but they can generally use it against you at trial.

The result is that Karl’s encouraged to fix his sidewalk to protect a pedestrian, but you are penalized for efforts to prevent future accidents involving your 80,000-lb units. Absurd.

Granted, there are some courts that provide protections for these preventability actions in litigation. But these are neither all-encompassing, nor consistent.

(Photo: iStock)

And for an industry that is exposed to litigation in random jurisdictions throughout the country, the uncertainty of availability is tantamount to non-existence. If you can’t count on it, it might as well be non-existent.

So, what can be done and who can do something about it?

Congress? They can make investigation and remediation after an accident confidential. Reality check: That would require action by the fractured, dysfunctional family of our legislative branch.

Federal Motor Carrier Safety Administration? Regulations make D&A results confidential. Why not post-accident preventable analysis and action?

Trucking safety is their job. It is contemplating a program labeled Beyond Compliance. If exceeding mere compliance is the goal and increasing safety is the purpose, then encourage learning and action with each accident. Make a post-accident safety analysis confidential and inadmissible by regulation.

Courts? They do it for the Karls of the world, so they can do it for companies that deliver the food and medicine and supplies that have kept up afloat in this pandemic.

As noted above, some do. But the number is few, depriving nationwide companies of the required certainty of protection.

The result is that this action to save lives becomes fodder for those who sue us. They have woven it into their strategy and tactics.

What can the courts do? Courts can include trucking companies in the same rules that protect the Karls. The rule, known as “subsequent remedial measures,” can be interpreted to include safety analysis, preventability decisions, and procedural changes.

Courts can also do so by recognizing a “critical self-analysis privilege.” A “privilege” keeps something confidential in order to promote a positive societal objective.

Doctor-patient privilege allows you to tell your doctor what they need to treat you for, without worrying that what you say will become public. Similar privileges are attorney-client, cleric-parishioner, and psychiatrist-patient.

You get the idea – protecting people who do what they should by keeping the information provided confidential.

Our legal system wants to keep people from getting hurt in truck accidents. So, doesn’t it wield punitive damages to prospectively deter reckless conduct?

Why not judicially promote post-accident evaluation and changes by not requiring them to be disclosed or used against the trucking companies? Why, in effect, punish companies by requiring disclosure and admissibility? And why not provide a universal protection upon which companies can rely throughout the country?

The value of post-incident analysis and remediation is not some extreme, debatable concept. It is beneficially used across all industries to prevent harm to others.

This analysis should be promoted, not punished, in the trucking industry. Actions need to be taken at any or all levels – Congress, FMCSA, and the courts.

Each claims a goal of trucking safety – prove it.

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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.

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