Trucking fleet operators should be aware of the recent Indiana Court of Appeals ruling addressing the admissibility of internal post-accident investigations in J.B. Hunt Transp., Inc. v. Guardianship of Zak, 58 N.E.3d 956 (Ind. Ct. App. 2016).  This decision opens the door to admission of internal investigation material at trial.  In the aftermath of this ruling, trucking fleet operators around the country may want to consider how they approach and handle their investigation of crashes.

In 2006, a J.B. Hunt  employee drove a semi tractor-trailer on I-65 when it began to snow.  He reduced his speed after noticing his trailer move from side to side, but he did not pull over.  The driver then saw his trailer veer to the left, and he attempted to counter-steer.   Unfortunately, his efforts failed.   After briefly losing consciousness, he realized his semi was jackknifed in the median between the north and southbound lanes.   He did not activate the semi’s flashers or post any reflective warning signs after the accident.  The law enforcement officer called to the scene did not believe the semi’s location in the median presented a safety hazard to passing motorists, and so he left to respond to another, unrelated accident before the tow truck arrived to remove the semi. Road and weather conditions then began to worsen dramatically.  Sleet, heavy snow, and ice caused another driver to lose control of his car.  This vehicle slid off the roadway and smashed into the side of the jackknifed trailer.  The car’s passenger took the brunt of the impact and sustained severe brain damage.  Following the crash, Hunt’s claims department engaged in a routine review to determine whether the first accident was preventable. To that end, the truck driver’s supervisor completed an “Injury Investigation Report.”  Hunt ultimately concluded that the accident was preventable and terminated the truck driver’s employment.

The Indiana Court of Appeals ruling focused on whether these reports from Hunt’s review of the accident, as well as the deposition of the truck driver’s supervisor, should have been admitted into evidence at trial.  Defendants argued that the evidence constituted inadmissible subsequent remedial measures, which were barred by Indiana Evidence Rule 407. That rule states that evidence of “measures [that] are taken that would have made an earlier injury or harm less likely to occur” is inadmissible to prove negligence.  Plaintiff argued that the investigation did not constitute a “measure” contemplated by the rule.  Plaintiff claimed the “measure” taken was terminating the truck driver, which was redacted from the documents before submission to the jury.

The Court acknowledged that no Indiana case was directly on point, but explained that subsequent investigations are admissible in most jurisdictions, primarily in the context of product liability.  The Court held the post-accident investigation was admissible, quoting the rationale from the Alaska Supreme Court:

Rule 407 prohibits evidence of “measures” that have been “taken.”  We take “measures” to mean concrete actions, and to leave outside the rule’s prohibition preliminary investigations and recommendations pointing toward those actions. Even if post-accident investigations and reports were considered “measures,” the rule would not reach them.  The rule excludes “subsequent measures” that would have reduced the likelihood of the accident if they had been “taken previously,” meaning before the accident.  “One cannot investigate an accident before it occurs, so an investigation and report…cannot be a measure that is excluded.” The language of Rule 407 and the general presumption of admissibility laid down by Rule 402, along with persuasive authority from other courts, compel us to hold that evidence of post-accident investigations and recommendations are not automatically excluded as subsequent remedial measures.

After J.B. Hunt Transp., Inc. v. Guardianship of Zak, internal investigations, including any related reports or conclusions may be admissible at trial.  Often, such reports are prepared by laypersons with little to no accident investigation training.  These conclusions, which may prove unfavorable at trial, may not even be accurate.  In light of this ruling, operators must use caution when conducting investigations into crashes involving serious injuries or fatalities.  If litigation is anticipated, the better course is to engage counsel quickly to guide the investigation and communicate conclusions.