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June 29, 2023
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Reprinted with permission from the June 28, 2023 edition of The Legal Intelligencer © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Preventability has been a charged word among commercial vehicle attorneys. The Federal Motor Carrier Safety Administration can label a crash as “not preventable” through its crash preventability determination program, but it takes a motor carrier’s action. (The comment period for the administration’s program ended June 12.) Part of a submission could be an internal preventability determination. Here, I will reconsider the law that helps inform whether the benefits are worth the risk.

First things first: A preventability determination may be made when a commercial motor carrier internally investigates the facts of a crash and decides whether it could have been avoided. A motor carrier, such as an interstate trucking company, wants to make a preventability determination. It may help their ratings with the FMSCA (a concept I will return to this at the end of the article). It is also a tool for employment decisions—the carrier that gathers the facts of how a crash happened and how it could have been avoided can discipline a driver who was careless. If the driver’s conduct is reckless or repetitive, the analysis may lead to employment termination.

And a preventability determination can be used to make its operators safer drivers. The driver in a preventable crash has the opportunity for a direct learning experience, and the responsible carrier will document its file with the remedial training the driver received. In a broader scope, the company can use the preventable crash in its driver safety manual, new driver training, safety meetings and safety newsletters to illustrate concepts to instruct all its drivers on how to be safer.

There is only one reason for hesitation: Plaintiffs injured by commercial vehicles will try to use the determination as an admission in court.

Rules of Evidence are Points of Engagement for Admissibility

Whether a preventability determination is admissible reminds me how commercial vehicles trudge up steep hills and then have it easier as they head downhill. It is an apt metaphor for the carrier’s ability to keep out preventability as an admission.

The motor carrier begins on a downhill slope and has the advantage: planning. It is worth remembering the Federal Motor Carrier Safety Regulations (FMCSR) do not require, per se, a motor carrier to determine preventability. A motor carrier must record an accident, though. On the other hand, the regulations do establish “procedures to determine the safety fitness of motor carriers” 49 C.F.R. 385.1(a). A motor carrier does not want the FMCSA to have reason to question its safety fitness. There is a section of the code which addresses safety fitness, and it is here where “preventable accident” is defined as one “that involved a commercial motor vehicle; and 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.

Further, there is a standard for safety fitness, at 49 C.F.R. 385.5, which explains, “the motor carrier must demonstrate it has adequate safety management controls in place, which function effectively to ensure acceptable compliance with applicable safety requirements to reduce the risk associated with (d) improper use and driving of motor vehicles, (e) unsafe vehicles operating on the highways, and (k) motor vehicle accidents and hazardous materials incidents.” To accomplish its mandate, the administration can conduct compliance reviews and safety audits. A crash analysis is likely to be a part of either mechanism.

Planning allows the motor carrier to develop effective management controls, including preventability determination, in a way which will show its safety fitness while protecting itself against an future admission because the definition the motor carrier chooses for preventability has implications. The definition may echo the definitions available from the American Trucking Association or the National Safety Council. What is important is the definition is different than the legal negligence standard. It may help to conclude the definition with a statement emphasizing it is not a legal standard. This will become more clear under the section below addressing evidence rule on unfair prejudice confusing or misleading the jury.

Another planning tool may be to include preventability determination in the policies concerning employment discipline and training. The important consideration is to show the determination will be used to avoid future crashes and make drivers safer. This will mean more in the section below addressing the evidence rule addressing subsequent remedial measures. Planning will probably not avoid the discoverability of the preventability determination.

Making a preventability determination after a crash in which a person other than the commercial driver is injured starts an uphill climb for the motor carrier. A plaintiff in litigation will want to show a document demonstrating a finding of preventability or elicit testimony of the same. If the statement is presented as hearsay, it is likely still to be admissible evidence as a statement of a party opponent. Pa.R.E. 803(25) and F.R.E. 801(d)(2)(though the federal rule treats the statement as not hearsay). The next question is whether preventability is relevant and makes a fact more probable. Pa.R.E. 401 and 402, and F.R.E. 401 and 402, similarly begin with all relevant evidence being admissible if it is more likely than not to make a fact more probable. It would be hard to argue there is no relevance in a party admitting there was a preventable crash, and an admission of preventability could certainly encourage a jury to believe the driver was negligent. If the analysis ended there, the plaintiff would likely be able to use the statement.

Evidence Rule 403

Rule 403, for both Pennsylvania and federal courts, allows a judge to exclude a preventability determination if the probative value is outweighed by unfair prejudice, confusing issues or misleading the jury. A motor carrier’s planning will choose whether this is an uphill slog or a coast downhill.

In Kansky v. Showman, from 2011, the court admitted evidence of preventability with minimal analysis and concluded, “After careful review, we find that the defendants have not established any undue prejudice with regard to this evidence.” See Kansky v. Showman, 2011 WL 1362245 (M.D. Pa. April 11, 2011). To be in the best position, should the court have to “carefully review” a motor carrier’s definition of preventability, it must be compared to legal negligence. Our Standard Civil Jury Instruction in Pennsylvania for negligence reads, “A person must act in a reasonably careful manner to avoid injuring others.”

A motor carrier’s definition of preventability which diverges in minimal words but significant meaning from the legal negligence standard is one which may confuse a jury. For instance, a motor carrier might define a preventable accident as when the driver failed to do everything reasonable to prevent it from occurring; where everything reasonable includes driving defensively and preventing an accident in spite of the wrong actions of others and in spite of any adverse conditions.

Kansky was decided in April 2011, and just a month later, a Middle District Court gave more incite. Swift Transportation v. Amenounve, 2011 WL 13349660 (M.D. Pa. May 3, 2011). The court found the carrier’s standard for preventability was different than the negligence standard to be used in the trial and would be confusing and misleading for the jury. In this case, the trucking company used the preventability standard from the American Trucking Association.

More recently, in 2021, a court held, “defendant’s internal investigation findings are inadmissible pursuant to Federal Rule of Evidence 403.” See Shelton v. Gure, 2021 WL2210989 (M.D. Pa. June 1, 2021). This court elaborated in its analysis and recognized the difference between the words used by the internal investigation as the standard to determine preventability and the negligence standard the jury would hear. It was too confusing because the trucking company’s determination of preventability could have “the undue tendency to suggest decision on an improper basis” a jury would make on negligence. In support of its conclusions, the courts in Shelton and Swift, supra, cited an often referenced case, Villalba v. Consolidated Freightways of Delaware, No. 98 C 5347, 2000 WL 1154073 (N.D. Ill. August 14, 2000).

The Villalba opinion contains persuasive analysis. The court reviewed the source of the carrier’s preventability definition, which was the National Safety Council. The court compared the definition closely against Illiniois’ standard jury instruction on negligence. They were similar enough to be confusing but different enough to see that the carrier’s definition held the driver to a higher standard. In the end, the court wrote, “Thus, the two standards may confuse and mislead the jury and result in a mini-trial regarding the different standards and the significance of the preventability finding, diverting attention away from the real issue of negligence. Likewise, there exists a danger that the proposed evidence could suggest a decision to the jury on an improper basis. The motor carrier’s finding of preventability could lead the jury to decide the issue of negligence by improper reference to the preventability standard and the motor carrier’s finding of preventability.”

The contemplative motor vehicle carrier would make it less likely that preventability becomes part of a trial on its (or its driver’s) negligence, if the determination process includes a standard for preventability which is noticeably different from negligence standards.

Evidence Rule 407

The preventability determination not precluded under the unfair prejudice rule, may still be precluded under Pa. R.E. 407 (or F.R.E. 407) concerning exclusion of subsequent remedial measures.

Here, the crux of the matter is if the determination of preventability is linked closely enough to a “measure” that would have prevented the incident, but forward looking rather than rear-facing. The plaintiffs will prod through discovery to learn if the preventability determination was:

• used in employee discipline
• used for decisions on employee retention
• used in for training
• used for policy change
• described in procedures as the first step toward changes which would avoid future crashes

It is clear where the motor carrier’s planning can further its safety goals while blockading against admission. The application of this rule, though, can be an undulating stretch of road for the carrier.

A federal court in Kentucky used FRE 407 to exclude the preventability determination of a carrier’s accident review board. See Harper v. Griggs, 2006 WL 2604663 (W.D. Ky. Sept 11, 2006)(other portions of the “board’s” analysis were admissible). A similar result came in Massachusetts, but with greater explanation and relation to public policy.

However, we think that good public policy also requires the exclusion of the results of the defendant’s investigation into the causes of an accident involving its bus. Although not itself a “repair” of a dangerous condition, the investigation is the prerequisite to any remedial safety measure. Without discovering the cause of the accident, the defendant can scarcely hope to prevent its recurrence. The investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of admissibility of evidence as to each should be analyzed in conjunction and answered consistently. If, as a result of the investigation, the defendant had discharged the bus driver, or required him to undergo additional safety training, evidence of these steps would fall squarely within the rule excluding evidence of subsequent remedial measures. The investigation cannot sensibly be treated differently. To do so would discourage potential defendants from conducting such investigations, and so preclude safety improvements, and frustrate the salutary public policy underlying the rule. See Martel v. Massachusetts Bay Transportation Authority, 525 N.E.2d 662, 664 (Mass. 1988).

It is also worth noting a trial court opinion from Dauphin County. See Smith v. Kelly, 2008 WL 7810416 (C.C.P. Dauphin 2008). It is not a trucking or commercial vehicle case, but the court dealt directly with the issue of admitting post-accident investigation reports. A motor carrier who seeks protection under the subsequent remedial measure may wish to listen closely to Judge Joseph Klienfelter’s first point: “We begin our analysis of this issue by noting that there was absolutely no evidence of ‘remedial measures’ in this case.” Again, this is a place where the motor carrier’s planning can be brought to bear and execution of the plan to show action taken.

The judge explained Pennsylvania did not recognize protection for critical self-analysis reports. The court further wrote that a conclusion as to what happened and what went wrong are not remedial measures. The court referenced Rocky Mountain Helicopters v. Bell Helicopters Textron, 805 F.2d 907 (10th Cir. 1986), for this proposition. The Martel opinion is a warning and guide for motor carriers wanting to avoid the preventability becoming an admission.

Where We Began

The last point of engagement is to address admissibility of a preventability determination in consideration of 49 U.S.C. Section 504(f), which excludes from civil actions the documents required for submission to the Secretary of Transportation. It is unclear, at present, whether courts should apply 504(f) to preclude preventability determinations. The administration’s proposal, which triggered me to go back and look again at the law on admissibility could have an impact on the utility of Section 504(f).

The government tracks motor carrier safety in at least two places where preventability may come into play: SMS and BASIC. Safety Measurement System is public facing and BASIC is a nonpublic source of information on motor carrier performance. Motor carrier crashes are listed on SMS. There is a process for pushing back against the FMCSA’s listing of crashes without further information. It is called the crash preventability determination program. The program is only available for certain types of crashes. The motor carrier submits a request for data review. This is done through the Agency’s DataQs system. In addition to the required police accident report, the carrier can submit information it considers of consequence. The motor carrier’s process for preventability determination, and the actual determination in the case of the crash at issue could be part of the submission. When the motor carrier is successful, a crash on SMS and BASIC will be labeled as not preventable and a message will appear that the crash is not included within BASIC’s calculations. It is also helpful for a driver to have the crash labeled not preventable, because it will be listed on the pre-employmentscreening program, available from the FMCSA, as not preventable after review by the agency.

The comment period just closed this month for the FMCSA’s proposal to increase the number of crash types which can be considered under the crash preventability determination program. If it is implemented, the ability of carriers to have crashes labeled as not preventable should expand. With the increasing numbers of submissions comes the likelihood of inclusion of motor carrier’s preventability determinations. Preventability determinations which become a regular submission to the FMCSA become may be more likely deemed required and protected by 49 U.S.C. Section 504(f).

Preventability determinations are an important tool for commercial motor carriers and should remain so. It is reasonable to believe the law on admissibility will continue to develop and offer a future with more certainty for trial lawyers and their clients.

McNees Wallace and Nurick’s Joseph Chapman practices in the personal injury and litigation groups. You can reach him at jchapman@mcneeslaw.com and 717-237-5375.