Indiana Appeals Court rules motor carrier couldn’t use ‘subsequent remedial measures’ rule to hide investigation details about why its truck driver could have prevented a truck accident on I-65 in Indiana
Trucking company J.B. Hunt Transport, Inc., knew its truck driver could have prevented a truck accident that left a young mother with “serious, permanent brain damage.”
But the motor carrier wanted to keep it a secret from the jury hearing the lawsuit brought by the truck wreck victim’s guardian.
Thankfully, the Lake Superior Court trial judge and the Court of Appeals of Indiana believed this was the type of secret that shouldn’t – and wouldn’t – be kept.
In J.B. Hunt Transport, Inc., et al., v. Guardianship of Kristen Zak, the trucking company insisted the “subsequent remedial measures” rule prevented the victim’s guardian from introducing evidence at trial of the carrier’s “preventability” investigation which revealed that the truck wreck that injured the victim “was preventable.”
The appeals court acknowledged the existence of the “subsequent remedial measures” rule that J.B. Hunt was trying to hide behind – a general rule that precludes personal injury victims from trying to prove a wrongdoer’s negligence with evidence of “measures” taken by the wrongdoer to make sure the same type of accident doesn’t occur again.
However, the judges in Zak concluded, the rule didn’t apply here to the details of J.B. Hunt’s “preventability” determination:
“[E]vidence of post-accident investigations are not automatically excluded as subsequent remedial measures. Therefore, in this case, the trial court did not err by admitting Hunt’s post-accident reports or [the truck driver’s supervisor’s] deposition.”
As a truck accident attorney, I can’t say enough about how important this ruling is for improving public safety.
Why the ‘subsequent remedial measures’ rule may not protect unsafe truckers and trucking companies
Significantly, the Court of Appeals of Indiana in Zak relied on the “compelling” analyses from other courts to reach its conclusion that the “subsequent remedial measures” rule did not allow J.B. Hunt Transport to hide the fact that its truck driver could have prevented the truck wreck that seriously injured Kristen Zak:
- “The majority of jurisdictions agree that a post-incident investigation and report of the investigation do not constitute inadmissible subsequent remedial measures.”
- “The Tenth Circuit Court of Appeals” concluded “‘[i]t would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports … [I]t is usually sounder to recognize that such tests are conducted for the purpose of investigating the occurrence to discover what might have gone wrong or right. Remedial measures are those actions taken to remedy any flaws or failures indicated by the test.’”
- The Supreme Court of Alaska ruled that 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 “reports”] and recommendations are not automatically excluded as subsequent remedial measures.’”
What is the rule on ‘subsequent remedial measure’ rule?
Under “Indiana Rule of Evidence 407,” “evidence of ‘measures [that] are taken that would have made an earlier injury or harm less likely to occur’ is inadmissible to prove negligence.”
Similarly, Rule 407 (“Subsequent Remedial Measures”) of Federal Rules of Evidence provides:
- “When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence … [or] … culpable conduct …”
A horrible, but preventable truck accident
On January 17, 2006, there were “snowy conditions” as J.B. Hunt Transport, Inc.,’s truck driver Terry Brown drove his semi tractor-trailer from Greencastle, Indiana, on his way to Bolingbrook, Illinois. Although he slowed his speed as the snow continued to fall, he didn’t pull over – a fatal mistake.
His truck jackknifed. Subsequently, a car crashed into Brown’s truck, causing the passenger, Kristen Zak, to suffer “serious, permanent brain damage,” “leaving her unable to walk, care for herself, or care for her six-year-old daughter.”
Brown’s employer, trucking company J.B. Hunt Transport, Inc., investigated the truck wreck, including the completion of an “Injury Investigation Report.” After concluding “the accident was preventable,” J.B. Hunt fired Brown.
Ms. Zak’s guardians sued Brown and J.B. Hunt for negligence. The jury returned a verdict of $32.5 million in favor of Ms. Zak/her guardianship (which was, technically, the plaintiff).
On appeal, J.B. Hunt argued unsuccessfully that the jury shouldn’t have heard the following evidence pertaining to the motor carrier’s “preventability” investigation:
“Hunt’s review and investigation of the accident,” including “reports resulting from Hunt’s internal review process” “as well as the deposition of … Brown’s [Hunt] supervisor at the time of the accident.”