Recent Publications

Summer 2008
Trucking and Commercial Transportation Client Advisory

After the Accident - What Do I Need to Keep?

A frequent tactic of lawyers who file personal injury lawsuits against trucking companies is to cry “spoliation.” It amounts to an accusation that the company failed to preserve something relevant to the lawsuit and should therefore be punished. Different courts have handled spoliation claims in several ways. A few states have created an actual claim of spoliation, permitting damages to be awarded for economic loss resulting from the failure to preserve evidence. Some courts directly sanction the offending party by imposing monetary penalties or striking its pleadings. Other jurisdictions give juries a “missing evidence instruction.” The jury is ordered that, if it believes the evidence was lost intentionally, it must assume the evidence would have shown whatever the Plaintiff says it would have shown. For example, if a log book is intentionally discarded, the jury is told to assume it would show that the driver was fatigued. Some courts have even extended the concept to include evidence that was accidentally lost.

The best defense against a spoliation claim is to ensure that all relevant evidence is preserved. Of course, it is difficult to predict exactly what will be relevant evidence. From an adjuster’s and defense lawyer’s point of view, every business record should be put in a vault and every vehicle involved in an accident should be put under a tarp and stored for several years until the threat of a lawsuit has passed. However, because the owner of the truck has a business to run, some reasonable compromises must be made. After every DOT reportable accident, every document related to that trip should be copied and placed in a separate, secure file. At a minimum, this should include any invoices, bills of lading or other shipping documents for the load, dispatch records, pre- and post-trip inspection records, drivers logs for at least ten days before and up to the time of the accident, any electronic messages to and from the driver on that trip, expense receipts, weight slips, the driver’s personnel, driver qualification and I-9 files, and the maintenance and repair records for the tractor and trailer. In addition, all information related to the investigation of the accident must be preserved, including any statements, reports, and substance testing results. If anyone takes photographs of the scene or vehicles, make sure they are not lost or destroyed.

Electronic Control Modules and Vorad collision avoidance systems are wrongly portrayed as the equivalent of an airliner’s black box. In reality, the data may be useless and the cost of preserving it may be prohibitive. Nevertheless, the failure to preserve it could result in a successful spoliation claim. Dealers and certified accident reconstructionists may have the equipment and knowledge to obtain and preserve the ECM data. After a serious accident, the data should be extracted by a qualified technician and printed out or saved to a disc. After a catastrophic loss, the ECM should be removed from the truck and secured as well. Only Eaton can extract the data from a Vorad data logger.

Trucking companies should formulate a written policy about what is to be preserved after certain types of accidents. If that policy is reasonable and has been followed, the court is far less likely to punish a trucking company for lost or missing evidence.

Is Assault One of the Employment Duties of a Trucker?

In Ohio, a truck driver who assaults someone in a rest area may be acting within the course and scope of his employment, which leaves the trucking company potentially liable. In McMahon v. Continental Express, Inc., 2008-Ohio-76, the Ohio Court of Appeals considered a case in which two truck drivers who were off duty in a rest area began arguing on the CB. One driver then walked to the other truck and climbed onto the running board to exchange threats. The driver inside the truck shifted into gear and jerked the truck forward, knocking the unwanted visitor off the running board and onto the ground. As the truck continued forward, the man on the ground was lying in the path of the trailer tires. A bystander pulled the man to safety, but the good Samaritan’s leg was run over in the process. The leg was later amputated. He sued the driver who caused the injury and won a default judgment for compensatory and punitive damages. The bystander then filed another suit against the driver’s employer, alleging that the driver was acting within the scope of his employment when the injury occurred. At first, the trial court dismissed the claim because the driver was off duty and his actions were not intended to benefit his employer. However, the claim was reinstated on appeal. The Ohio Court of Appeals held that the injury may have been unintentional and that the company had not proven the acts that caused it were outside the scope of a truck driver’s employment. The court noted that the company hired the driver to drive its truck, and he was driving its truck when the injury occurred.

This case illustrates the difficulty in limiting the “scope” of employment in defending claims of respondeat superior liability. Even if an employee has been expressly prohibited from a particular act does not necessarily take that act outside the scope of employment. In Ohio, Plaintiffs’ attorneys’ quest for “deep pockets” just got a little easier.

RECENT VERDICTS:

A trucking liability personal injury case tried in Lexington, Kentucky arose from a same-direction collision on an interstate. There was evidence that the trucker had fallen asleep, and the trucking company admitted liability. The plaintiff’s car overturned, but she had no medical attention for three days after the accident, when she saw a chiropractor. At trial, she claimed that back and knee pain had caused her to miss work and become permanently impaired. The jury returned a verdict totaling $38,000 for medical expenses, lost wages and pain and suffering.

After a garbage truck backed into an SUV that was parked in a driveway with two occupants inside, a personal injury lawsuit was filed in Floyd County, Kentucky. The waste disposal company admitted liability but contested the damages claims. Despite very minor property damage, the occupants claimed a total of $45,000 in medical expenses, plus damages for lost wages and pain and suffering. The eastern Kentucky jury returned a verdict totaling $9,000.

ACCIDENTS WILL HAPPEN:

Until 1973, the world’s most solitary tree stood in the Ténéré Desert in Central Africa, over 200 miles from any other tree. That year, a truck struck it and knocked it down.