Admissibility Of Preventability: A Refresher For Your Trucking, Commercial Vehicle Clients

• Jurisdiction: United States,Federal
• Law Firm: McNees Wallace & Nurick
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Personal Injury, Professional Negligence
• Author: Mr Joseph Chapman
• Published date: 04 July 2023

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...