For The Defense, December 2011 - DRI Today

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Trucking Law A driver’s refusal to provide identifying information required by a statute is actionable; the driver’s refusal to provide a statement or answer questions usually is not. The Fifth Amendment— Criminal Versus Civil Liability If an accident has criminal implications, the tone of the investigation will change When an accident threatens criminal prosecution, the case will invoke constitutional protections, such as the U.S. Constitution’s Fifth Amendment privilege against self- incrimination. accordingly. Cases involving fatalities or intoxicated drivers, for example, typically will lead to criminal charges and arrests. The investigation of such accidents will become more involved. For example, under N.Y. Vehicle & Traffic Law §603-a, when an accident results in a serious physical injury or death to a person, the police officer’s investigation must cover the following: (1) the facts and circumstances of the accident; (2) the type or types of vehicles involved; (3) whether pedestrians were involved; (4) the contributing factor or factors; (5) whether the investigating officer can determine if a violation or violations occurred, and, if so, the specific provisions that were violated and by whom; and (6) the cause of the accident, if the investigator can determine the cause. Furthermore, when an accident threatens criminal prosecution, the case will invoke constitutional protections, such as the U.S. Constitution’s Fifth Amendment privilege against self- incrimination. An officer is required under the Fifth Amendment to give the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), to 58 ■ For The Defense ■ December 2011 a suspect before the officer asks questions that may elicit an incriminating response. In Miranda, the Supreme Court held that the Fifth Amendment privilege against self- incrimination prohibits admitting into evidence statements made by a suspect during “custodial interrogation” without first warning someone of the right against self- incrimination, now commonly referred to as the “Miranda warning.” Custodial interrogation is defined as questioning “initiated by law enforcement officers after a person was been taken into custody.” Id. at 444. And “custody” can take place anywhere, including on a roadway. The Miranda warning was meant to preserve the privilege during “incommunicado interrogation of individuals in a police- dominated atmosphere,” said to generate “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 445 & 467. The Fifth Amendment is not intended to be a refuge for those facing civil liability, according to People v. Kroncke, 70 Cal. App. 4th 1535, 1557 (Cal. Ct. App. 1999). In California v. Byers, 402 U.S. 424, 427 (U.S. 1971), the United States Supreme Court reviewed California’s “hit-and-run” statute to determine whether it infringed on the constitutional privilege against compulsory self- incrimination. Similar to many states, California’s reporting statute requires a motorist involved in an accident to stop at the scene of the accident and give his or her name and address to the other motorists. The respondent in Byers was charged with passing another vehicle without maintaining a safe distance and with failing to stop and identify himself as required by California law. Focusing on the “[t]en sion between the State’s demand for disclosure and the protection of the right against self- incrimination” and “balancing the public need on the one hand, and the individual claim to constitutional protections on the other,” the U.S. Supreme Court found there was no conflict between the hit-and-run statute and the self- incrimination privilege. Id. at 427. The Court further stated that the California statute was “directed at the public at large” and the group subject to the statute was neither “highly selective” nor “inherently suspect of criminal activities.” Id. 429. In New York, it is a misdemeanor to fail to comply with N.Y. Vehicle & Traffic Law §600, which requires “every motor vehicle operator, whether culpable or not, involved in an accident causing property damage or personal injury, to remain at the scene of the accident, exhibit his license, and identify himself to the party sustaining damage and, in the case of personal injury, to a police officer.” People v. Samuel, 29 N.Y.2d 252, 258 (N.Y. 1971). Following the logic in Byers, the court in Samuel concluded that “the incidental and limited risk of inculpation by identification and report of motor vehicle operators whose conduct involves, or is likely to involve, criminal accusations is insufficient to inhibit the regulatory power by the interposition of the privilege against self[-]incrimination.” Id. at 257. Conclusion Weighest thy words before thou givest them breath. —Othello, act 3, scene 3, William Shakespeare While a police report and any citations issued as a result of an investigation typically are typically inadmissible in a civil negligence action to establish culpability, attorneys may offer them as evidence in certain situations. Even when a court does not admit a police report into evidence in trials, the statements made by the parties immediately following the accident can have a profound impact on the outcome of a case. It would, therefore, benefit motor carriers to conduct seminars to train their drivers regarding postaccident investigation requirements. Drivers should know what information generally they must produce under the reporting statutes of the states in which they travel. As demonstrated above, this information typically includes identifying information such as the driver’s license and the vehicle’s insurance and registration cards. Motor carriers should also encourage drivers to provide their version of the events; however, they should be advised to use discretion when making such statements. While it is true that drivers have the statutory duty to provide information to law enforcement officers, emphasize to drivers that it is uncommon for a reporting statute to require a party to make a statement or Postaccid
Trucking Law An Essential Element of Risk Management By Stockard R. Hickey III and Paula J. Gabier, Ph.D. Sensationalized reports of accidents and reckless behavior have led to a public perception that the industry is far less safe than it really is. Battling Bias Against Truckers Trucks are ubiquitous. Yet nothing else in the United States so integral to everyday life is so directly inaccessible to the general public. Although every American benefits from the world’s best system for transporting goods via highway, relatively few people actively interact with that system in any way except when they become stuck in traffic behind a tractor- trailer. Most Americans base their opinions of the trucking industry on sensationalized news reports of horrendous and tragic crashes. In popularity polls, truckers do rank ahead of politicians, used car salesmen, and lawyers, but they still appear way down on the list. Of course, this is unfair and just plain wrong. The trucking business is populated by smart, honest, hard- working people who deserve to be held in the highest regard. Claims managers and defense attorneys should examine and attempt to minimize the effect of bias against the trucking business in four ways: 1. Take bias into account when evaluating a claim for settlement purposes. 2. Proactively undertake a post-accident company plan of action. 3. Craft your trial preparation and defense story to counter the bias. 4. Work to educate the public and attenuate the bias at every opportunity. The Effect of Bias on Settlement Value Because the vast majority of liability claims are resolved via settlement, accurately evaluating claims is critically important. Experienced claims people and attorneys know there are no magic formulas or shortcuts that will determine the correct dollar value on a claim. Every claim is unique and its own facts and circumstances drive its value. Those facts and circumstances include the characteristics of the venue, the specifics of the accident, the characteristics of your clients, and the characteristics of the claimant. Know the Venue Research into the demographics, lifestyles, recent events, and economic state of the county or district from which your jurors are drawn may offer you an idea of ■ Stockard R. Hickey III is a member of the law firm Gwin, Steinmetz and Baird PLLC in Louisville, Kentucky. He represents trucking companies, insurers, third-party administrators and individuals in defense of a variety of claims. Paula J. Gabier, Ph.D., of Gabier Consulting in New Bern, North Carolina, teaches effective ways to educate jurors and assists attorneys and corporations in developing successful, research- based trial themes. She has studied and learned from thousands of actual and surrogate jurors nationwide and has assisted clients in hundreds of cases, large and small. For The Defense ■ December 2011 ■ 59
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