Trucking companies and their counsel have struggled to decide whether a carrier should conduct  a preventability determination following an accident.  Assessing how an accident happened and providing the truck driver with insight on how to prevent a similar accident from occurring in the future  is important for training and safety. However, when a law suit is filed as a result of an accident, plaintiff attorneys seek to use the preventability determination against the truck driver and the trucking company to prove fault and to show that the trucking company was unsafe.

Recently, the New Jersey Appellate Division in Hassan v. Williams, 2021 N.J. Super.  Lexis 43 (App. Div. April 13, 2021)  held that a trucking company’s preventability determination and its employees’ post-accident statements regarding the driver violating company safety protocols were admissible at trial.   There,  plaintiff was rear ended by defendant truck driver who worked for ABF Freight System.   Following the accident,  ABF terminated its driver finding that the accident was preventable.   At deposition, a member of ABF’s safety department testified that the driver’s actions were contrary to ABF’s training and protocols.   The court found that the preventability determination and the statements from the safety department were admissible at trial as they constituted statements by a party opponent.  The court further concluded that the driver’s termination post-accident was not admissible at trial  as it constituted subsequent remedial action.  The termination was taken to prevent the driver from having further accidents.

Hassan  unquestionably demonstrates why post -accident preventability determinations must be taken seriously. Trucking professionals should appreciate the pros and cons of performing these evaluations and understand how they can be used against a trucking company post-accident. For some carriers, it is a risk worth taking, and for others it is an exercise that should not be followed.