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.