Safe practices are being punished. Companies’ post-accident safety analysis is exposed for use against them in law suits.
It shouldn’t be. i doesn’t have to be.
The problem—post-accident analysis and the remedial actions taken by trucking companies are generally both discoverable and admissible. Not only do you have to turn them over during law suit, but they can be used against you at trial.
Companies doing what they should to prevent future accidents and protect the motoring public. Doing what people say they want them to do, but turn around and punish them for doing go.
Think about it. Your neighbor up the street, let’s call him Karl. 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.
Your company does a post-accident evaluation—determines preventability, does a root-cause analysis, looks to keep it from happening again. 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—Karl’s encouraged to fix his sidewalk to protect a pedestrian, but you are penalized for efforts to prevent future accidents by 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.
And for an industry that is exposed to litigation in random jurisdictions throughout the country, the uncertainty of availability is tantamount to nonexistence. 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 just as they did certain accident reports. [49 USC 504 (f)]. Reality check—that would require action by our fractured, dysfunctional family of our legislative branch.
FMCSA.? Regulations make D & A results confidential. (See 40.323). 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. 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.
So what can the Courts do? They can do it several ways.
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 she needs to treat you without reservation that what you say will become public. Similar privileges are attorney-client, cleric-parishioner, 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? Doesn’t it wield punitive damages to prospectively deter reckless conduct?
So why not judicially promote post-accident evaluation and changes by not making them 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 county?
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 needs to be taken at any or all levels—Congress, FMCSA, or Courts.
Each claims a goal of trucking safety. Prove it.