Trucking Law To Cooperate or Not… That Is the Question! Postaccident Police

By Brian Del Gatto Investigations and Julia Paridis

Use of response teams, Consider the following hypothetical scenario. A driver as well as driver training, for your motor carrier client is headed to a rest stop for a can limit potentially much-needed break. Before moving into the exit-only lane, damaging statements. he or she checks his or her rear- and side-view mirrors and doesn’t notice any cars in the lane to his or The next few minutes are crucial and will her right. As the driver signals to change have a profound impact on the ultimate out- lanes and moves right into the exit lane, come of this matter for the driver, the motor the driver’s phone rings, and he or she looks carrier, and the insurers of each. down for a second to determine who it is. The driver then looks up just as the right- Postaccident Investigations front passenger side of the tractor collides The policeman on the beat or in the with the left-back driver side of a four-door patrol car makes more decisions and sedan. exercises broader discretion affecting The motor carrier’s driver pulls over and the daily lives of people every day and is confronted by someone yelling, “You hit to a greater extent, in many respects, me!” The person complains of neck and than a judge will ordinarily exercise in back pain and calls 911. The ambulance a week. arrives and places the sedan driver on a —Warren E. Burger, Standards Relating stretcher while he or she lists the various to the Urban Police Function, American injuries that he or she has suffered, none Bar Association: Advisory Committee serious or life threatening. When an officer on the Police Function (1972) arrives, he or she takes the sedan driver’s People sometimes don’t report minor col- statement first. The sedan driver claims that lisions. The parties simply exchange insur- he or she saw the driver of the truck looking ance information; however, most collisions down at something immediately before the that result in property damage or physical truck veered into the sedan’s lane and hit injuries are reported. And the officer who the car, and the truck driver never used the arrives on the scene of an accident has a truck’s turn signal. The officer approaches duty to investigate the circumstances and the motor carrier’s driver for a statement. to prepare a report. When an officer per-

■ Brian Del Gatto is the managing partner of Wilson Elser’s Stamford, Connecticut, office and a member of the firm’s executive committee. He practices in both Connecticut and New York, handling cases in both juris- dictions. He is the practice team leader of the firm’s Transportation & Logistics Practice. Julia Paridis is an as- sociate in Wilson Elser’s Stamford office and a member of the firm’s Transportation & Logistics Practice.

© 2011 DRI. All rights reserved. For The Defense ■ December 2011 ■ 55 Trucking Law sonally witnesses an accident, his or her that require a party involved in a collision the trial or hearing, offered in evidence to first-hand observations become the basis to cooperate in its investigation, but a driver prove the truth of the matter asserted.” Fed- for a report. If, however, as is the case with should understand the level of cooperation eral Rule of Evidence 801(d)(2) specifies that most collisions, a law enforcement officer and the amount of information that the law certain statements made against a party to a arrives on the scene after an accident has requires a driver to provide. particular action are not hearsay and, there- occurred, he or she must rely on evidence fore, admissible. These statements include or information, if any, and the statements Liability and Police Reports those made by the party, those of which the of the parties and witnesses to the collision A fair suspicion may be well worthy of party “has manifested an adoption or belief in preparing a report. further investigation, and it may well be in their truth, and those made by the par- worth the expense and trouble of exam- ty’s agent concerning a matter within the ining witnesses to see whether it is well scope of his or her agency or employment. founded. All other statements defined as hearsay While motor carriers —Jessel, M.R., In re Gold Co. (1879), are admissible only when they fall under L. R. 12 C. D. 84 one of the enumerated exceptions of Fed- should never encourage While typically inadmissible as evidence to eral Rules of Evidence 803 and 804. Fed- establish the cause of an accident, a police eral Rule of Evidence 804 provides hearsay drivers to lie to investigating report can set the foundation for a civil exceptions if a declarant is not available, negligence action. When someone initiates and Federal Rule of Evidence 803 enumer- officers, they should civil litigation, the insurance carrier of the ates exceptions for situations in which a party allegedly at fault will often begin to declarant’s availability is immaterial. The not voluntarily provide investigate by reviewing the police report; Federal Rule of Evidence 803 exceptions the plaintiff’s counsel will do the same. include, among others, business records information that may The insurance carrier reviews the police prepared in the regular course of business report to determine whether liability is and public records setting forth matters imply liability. questionable and whether it will defend a observed under a duty to report. claim against its own insured. The plain- In Alabama, for example, a statute ex- tiff’s counsel will use the police report to pressly makes police reports inadmissi- Investigating officers use statements formulate arguments and to prepare a lit- ble: they “shall not be used as evidence in made by the parties during a postaccident igation strategy in the prosecution of the any trial, civil or criminal, arising out of investigation to prepare an accident report plaintiff’s case. If liability or fault is ref- an accident.” Alabama courts have found, and, in some circumstances, issue citations erenced in the police report, the case will however, that this is not an absolute inad- to the parties that they’ve deduced are at escalate into witness interviews and depo- missibility, and while police accident re- fault. In extreme cases, they will arrest a sitions seeking affirmation of that liability. ports are deemed inadmissible because they party to an accident. See Brian Del Gatto The police report will influence the ques- are hearsay, they can gain admission if they & Michaelle Jean-Pierre, Admissions of tions that attorneys ask during the deposi- fall within an applicable hearsay exception. ‘Guilt.’ The Boomerang Effect of Traffic Cita- tions and later during a trial in large part. See Stevens v. Stanford, 766 So. 2d 849, 852 tions, For The Defense 18 (February 2010) Even when one party to an accident (Ala. Civ. App. 1999). (discussing the effect of traffic citations in does not initiate a civil negligence action For instance, a police report can gain civil litigation for personal injury in detail). against another party, an insurance carrier admissibility under the business records When police question them, truck driv- will analyze a police report to determine exception when the report consists of the ers often feel compelled to make a statement whether it will seek subrogation from the reporting officer’s personal observations or to volunteer information that is not re- carrier of the other party for the payments made while carrying out official police quired. Generally, motor carriers should made to its insured for damages resulting duties. Holliday v. Hudson Armored Car encourage drivers to cooperate in investi- from the accident. & Courier Serv., 301 A.D.2d 392, 396 (N.Y. gations and to relate their versions of the App. Div. 2003). However, when informa- events. A police officer will consider all par- Admissibility of Police tion in a police report is based on state- ties’ statements in preparing a report, and if Reports in Civil Actions ments or observations of witnesses under one driver fails or refuses to provide his or The admissibility of a police report in a civil no business duty to make such statements, her side of the story, the officer will not have action varies throughout the states and is the report is generally inadmissible. Id. See a reason to question the other party’s version governed by the rules of evidence of each also Yeargans v. Yeargans, 24 A.D.2d 280 of the events or assignment of blame. While state. In most states, a police accident re- (N.Y. App. Div. 1965); Kratz v. Exxon Corp., motor carriers should never encourage driv- port generally is inadmissible on the basis 890 S.W.2d 899, 905 (Tex. App. 1994). ers to lie to investigating officers, they should that the report violates the hearsay rule. Un- not voluntarily provide information that der Federal Rule of Evidence 801(c) hearsay Drivers’ Postaccident Duties— may imply liability belongs with them or is defined as “a statement, other than one Reporting Statutes their employers. Most states have statutes made by the declarant while testifying at Many states’ reporting statutes require

56 ■ For The Defense ■ December 2011 motorists as well as other persons involved accident vehicle action. This section offers eran, 2008 N.C. App. Lexis 15 (N.C. Ct. in accidents to report the accidents to the 20 choices for selection, including “making App. Jan. 15, 2008). The driver in Graveran police. The information required by such right turn on red” or “making left turn on failed to produce his driver’s license and reporting statutes typically includes iden- red,” two selections that imply a statutory speak with the officer regarding the acci- tifying information such as the driver’s infraction. Interestingly, the options also dent despite the officer’s several requests. name, address, and driver’s license num- include “making right turn” and “making The Supreme Court of Washington has ber, and the vehicle’s insurance and regis- left turn,” which carry no such implica- held that a driver’s refusal to produce his tration cards. tion. These reports typically are inadmis- driver’s license during an accident investi- For instance, under N.Y. Vehicle and sible in a civil action to prove the truth of gation was sufficient grounds for an arrest Traffic Law, §600 the matter asserted; courts may, nonethe- any person operating a motor vehicle less admit them into evidence for impeach- who, knowing or having cause to know ment purposes. Motor carrier companies that personal injury has been caused should encourage drivers, therefore, to State reporting statutes to another person, due to an incident prepare these reports cautiously to avoid involving the motor vehicle operated selecting options or making statements only uncommonly require a by such person shall, before leaving the that someone may later use against them place where the said personal injury in civil actions. driver to make a statement occurred, stop, exhibit his or her license State reporting statutes only uncom- and insurance identification card for monly require a driver to make a statement or answer questions such vehicle… and give his or her name, or answer questions regarding causation; residence, including street and street the driver simply is required to identify regarding causation. number, insurance carrier and insur- him- or herself in the manner mandated ance identification information in- by law. Short of providing the identifying cluding but not limited to the number information required by statute, a driver for obstructing a law enforcement offi- and effective dates of said individual’s normally does not have an obligation to cer. Sunnyside v. Wendt, 755 P.2d 847, 852 insurance policy and license number, to answer the questions of an investigating (Wash. Ct. App. 1988). The court empha- the injured party, if practical, and also officer or to make a statement regarding sized that the applicable ordinance did not to a police officer, or in the event that an accident. See State v. Avnayim, 185 A. require someone to make a statement when no police officer is in the vicinity of the 2d 295, 298 (Conn. Cir. Ct. 1962). an officer requested one. Insofar as a police place of said injury, then, he or she shall officer’s duty to prepare an accident report report said incident as soon as physically Obstruction of Justice is reasonably aided by production of a driv- able to the nearest police station or judi- When does a driver’s refusal to cooper- er’s license, the court reasoned that failure cial officer. ate with an investigation amount to an to produce the license could amount to an See also VA Code Ann. §46.2-89; Conn. obstruction of justice? Typically, during an obstruction of a public servant’s discharge Gen. Stat. §14-217; Fla. Stat. §316.062. accident investigation a driver must pro- of his or her official duties. Under N.Y. Vehicle & Traffic Law §605, vide the investigating officer with identi- In Avnayim, the Superior Court in Con- in the event of an accident in which anyone fying information, but nothing more. An necticut reviewed the constitutionality of a is killed or injured, or in which property investigating officer is free to investigate statute proscribing disorderly conduct. 185 damage exceeds $1,000, individuals have a evidence and to draw conclusions based on A.2d 295, 298 (Conn. Cir. Ct. 1962). The de- duty to report the accident to the commis- his or her own observations; however, no fendant in Avnayim was involved in an ac- sioner in writing within 10 days of the acci- one is required to admit culpable conduct, cident, and during the police investigation dent. New York’s motor vehicle accident although simply identifying oneself in cer- was described as “belligerent and boister- form MV-104 requests specific information tain accidents may become enough to infer ous, was sarcastic and evasive in his an- regarding the accident, as required by the culpability. Failing to provide or delay- swer, kept shouting ‘None of your business; commissioner, mainly standard identify- ing an investigation by withholding such you are here only to take down numbers; I ing information, such as the driver’s license information can amount to an obstruc- can say what I want.’” The court held that number and the insurance policy number tion of justice. although the defendant was not obliged to and vehicle registration number, as well The North Carolina Court of Appeals answer the questions asked by the police as information pertaining to the accident, has held that investigating an automobile and the police legally could not arrest the such as a description of the accident, the accident was a duty of a highway patrol- defendant for refusing to do so, his bellig- location, the estimated cost and damages man, and the refusal of a driver to respond erent and boisterous conduct, apart from sustained by the vehicles, and the injuries to a trooper’s repeated inquires pertain- his right to refuse to answer questions and sustained by all the involved parties. ing to the accident was sufficient evi- apart from his right to protest his inno- Form MV-104 also requests informa- dence to allow a jury to find that the driver cence, “create[d] a commotion or distur- tion pertaining to the traffic, weather, and obstructed and delayed the trooper in the bance and thus render[ed] him liable to roadway conditions and, more notably, pre-­ performance of his duties. State v. Grav- arrest for disorderly conduct.” Id. at 298.

For The Defense ■ December 2011 ■ 57 Trucking Law

A driver’s refusal to provide identifying a suspect before the officer asks questions In New York, it is a misdemeanor to fail information required by a statute is action- that may elicit an incriminating response. to comply with N.Y. Vehicle & Traffic Law able; the driver’s refusal to provide a state- In Miranda, the Supreme Court held that §600, which requires “every motor vehicle ment or answer questions usually is not. the Fifth Amendment privilege against self-­ operator, whether culpable or not, involved incrimination prohibits admitting into evi- in an accident causing property damage or The Fifth Amendment— dence statements made by a suspect during personal injury, to remain at the scene of Criminal Versus Civil Liability “custodial interrogation” without first the accident, exhibit his license, and iden- If an accident has criminal implications, warning someone of the right against self-­ tify himself to the party sustaining dam- the tone of the investigation will change incrimination, now commonly referred to age and, in the case of personal injury, to a as the “Miranda warning.” Custodial inter- police officer.” People v. Samuel, 29 N.Y.2d rogation is defined as questioning “ini- 252, 258 (N.Y. 1971). Following the logic in tiated by law enforcement officers after a Byers, the court in Samuel concluded that When an accident person was been taken into custody.” Id. “the incidental and limited risk of inculpa- at 444. And “custody” can take place any- tion by identification and report of motor threatens criminal where, including on a roadway. vehicle operators whose conduct involves, The Miranda warning was meant to pre- or is likely to involve, criminal accusations prosecution, the case serve the privilege during “incommunicado is insufficient to inhibit the regulatory interrogation of individuals in a police-­ power by the interposition of the privilege will invoke constitutional dominated atmosphere,” said to generate against self[-]incrimination.” Id. at 257. “inherently compelling pressures which protections, such as the work to undermine the individual’s will to Conclusion resist and to compel him to speak where he Weighest thy words before thou givest U.S. Constitution’s Fifth would not otherwise do so freely.” Id. at 445 them breath. & 467. The Fifth Amendment is not intended —Othello, act 3, scene 3, Amendment privilege to be a refuge for those facing civil liability, William Shakespeare according to People v. Kroncke, 70 Cal. App. While a police report and any citations against self-­incrimination. 4th 1535, 1557 (Cal. Ct. App. 1999). issued as a result of an investigation typ- In California v. Byers, 402 U.S. 424, 427 ically are typically inadmissible in a civil (U.S. 1971), the United States Supreme negligence action to establish culpability, accordingly. Cases involving fatalities or Court reviewed California’s “hit-and-run” attorneys may offer them as evidence in intoxicated drivers, for example, typically statute to determine whether it infringed certain situations. Even when a court does will lead to criminal charges and arrests. on the constitutional privilege against not admit a police report into evidence in The investigation of such accidents will compulsory self-­incrimination. Similar trials, the statements made by the parties become more involved. For example, under to many states, California’s reporting stat- immediately following the accident can N.Y. Vehicle & Traffic Law §603-a, when ute requires a motorist involved in an acci- have a profound impact on the outcome of an accident results in a serious physical dent to stop at the scene of the accident and a case. It would, therefore, benefit motor injury or death to a person, the police offi- give his or her name and address to the carriers to conduct seminars to train their cer’s investigation must cover the follow- other motorists. The respondent in Byers drivers regarding postaccident investiga- ing: (1) the facts and circumstances of the was charged with passing another vehi- tion requirements. Drivers should know accident; (2) the type or types of vehicles cle without maintaining a safe distance what information generally they must pro- involved; (3) whether pedestrians were and with failing to stop and identify him- duce under the reporting statutes of the involved; (4) the contributing factor or fac- self as required by California law. Focus- states in which they travel. As demon- tors; (5) whether the investigating officer ing on the “[t]en­sion between the State’s strated above, this information typically can determine if a violation or violations demand for disclosure and the protection includes identifying information such as occurred, and, if so, the specific provi- of the right against self-­incrimination” the driver’s license and the vehicle’s insur- sions that were violated and by whom; and and “balancing the public need on the one ance and registration cards. Motor carriers (6) the cause of the accident, if the investi- hand, and the individual claim to consti- should also encourage drivers to provide gator can determine the cause. tutional protections on the other,” the U.S. their version of the events; however, they Furthermore, when an accident threat- Supreme Court found there was no con- should be advised to use discretion when ens criminal prosecution, the case will flict between the hit-and-run statute and making such statements. invoke constitutional protections, such as the self-­incrimination privilege. Id. at 427. While it is true that drivers have the stat- the U.S. Constitution’s Fifth Amendment The Court further stated that the California utory duty to provide information to law privilege against self-­incrimination. An statute was “directed at the public at large” enforcement officers, emphasize to drivers officer is required under the Fifth Amend- and the group subject to the statute was that it is uncommon for a reporting statute ment to give the warnings required by neither “highly selective” nor “inherently to require a party to make a statement or Miranda v. Arizona, 384 U.S. 436 (1966), to suspect of criminal activities.” Id. 429. Postaccident, continued on page 82

58 ■ For The Defense ■ December 2011 Postaccident, from page 58 should not volunteer that he or she was gation of Catastrophic Accidents by Rapid respond to an inquiry regarding the cause tired or was distracted by his or her cell Response Teams,” also in this issue of of an accident. It is critical to the defense of phone immediately before the accident. For The Defense, for more about response an action emanating from an accident that Law firms often immediately dispatch teams. A response team can limit potential a truck driver refrain from making state- emergency response teams to an accident damaging statements by making immedi- ments from which someone may later infer scene upon notification by the motor car- ate contact with a driver and can perform that liability lies with the driver or his or rier if a motor carrier’s exposure is sig- other critical functions that can protect a her employer. In the hypothetical scenario nificant. These attorneys understand the motor carrier after a trucking accident. at the beginning of this article, for exam- applicable reporting statutes and can assess In the end, the dual efforts of training ple, the driver should state only that he or the situation and assist in an investiga- drivers and dispatching attorney emer- she did not see a vehicle in the truck mir- tion in a way that will limit a motor carri- gency response teams can limit postacci- rors when he or she checked them imme- er’s exposure. See the article by Durward dent causative statements. diately before changing lanes. The driver D. Casteel and Aaron J. Messer, “Investi-

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