ACCIDENT REVIEW POLICIES: HELP OR HINDRANCE?
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1 ACCIDENT REVIEW POLICIES: HELP OR HINDRANCE? DARRELL G-M NOGA MICHAEL J. MERRICK Fee, Smith, Sharp & Vitullo, L.L.P (direct) (direct)
2 Accident Review Policies: Purpose? Process/When Triggered? Composition? Procedures? End Product? Findings? Punishment?
3
4 In The Courts As to Employee Discipline/Discharge Cases Generally Helpful As to Personal Injury/Property Damage Cases Could Be Trouble As to Police Vehicle Accidents/Emergency Exception...
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6 Pilgrim s Pride Corp. v. Burnett (private entity) Texas Rule of Evidence 801(e)(2)(D) Court applied hearsay exception to hold Accident Review Board s report was ADMISSION OF PARTY OPPONENT Court held report not protected by investigative or work product privilege Plaintiff recovered over $700, in damages
7 City of Missouri City v. Passante (public entity) Trial Court denies City s plea to the jurisdiction Appellate Court agrees and cites City s own Accident Review Board report Note: Question of fact found as to whether police officer s conduct rose to level of recklessness though Review Board couched its findings in terms of negligence
8 Emergency Exception to the Tort Claims Act This chapter does not apply to a claim arising... from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others. Tex. Civ. Prac. & Rem. Code Ann (2) (Vernon 2011).
9 Emergency Exception Cases City of Pasadena v. Kuhn Accident Review Board findings support officer s lack of recklessness City of Arlington v. Barnes Accident Review Board finds negligence, trial court rules against City on its plea to the jurisdiction Fortunately for City, appellate court holds negligence does not equal recklessness and reverses But, what if this had been a collision in a non-emergency situation where mere negligence, not recklessness, was at issue?
10 Labor and Employment Disputes Villegas v. Harris County Accident Review Board report shows Plaintiff not similarly situated
11 Labor and Employment Disputes Are Accident Review Board procedures conditions of employment? NO, per Corpus Christi Fire Fighters Association v. City of Corpus Christi Court applies balancing test of management prerogatives versus effect on working conditions
12 Labor and Employment Disputes Other cases involving private and public employees: Loyd v. Pilgrim s Pride Corp. Chicken bleep McCarter v. Harris County Who wears the pants in this family?
13 Discovery and Evidentiary Concerns Production of Accident Review Board findings: Laws v. Stevens Transportation, Inc. Federal Rule of Evidence 407 ( subsequent remedial measures ) no bar to production Attorney-client privilege no bar, either
14 Discovery and Evidentiary Concerns Harlandale Independent School District v. Cornyn, 25 S.W.3d 328 (Tex. App. Austin 2000, no pet.) Strategic consideration: When do you involve legal counsel? Rationale differs from Laws v. Stevens Transportation, Inc.
15 An Interesting Digression Byrd v. Wal-Mart Transportation (2009 WL (S.D. Ga. Sept. 23, 2009)) Discussed in Laws v. Stevens Transportation, Inc. Deposition questions on legal conclusion or ultimate issues precluded But not information regarding precise criteria used to determine preventability and committee s methodology
16 Trial Admissibility Harper v. Griggs Accident Review Board evidence as to facts and circumstances of accident allowed Evidence of Board s recommendations for future action not allowed Subsequent remedial measures analysis Critical self-analysis doctrine
17 Trial Admissibility Critical Self-Analysis Doctrine Leon v. County of San Diego: doctrine applies as a privilege in narrow circumstances Sabatier v. Barnes: doctrine does not apply in Texas/Fifth Circuit
18 Trial Admissibility Villalba v. Consolidated Freightways Corporation (Illinois case) Standard for determining preventability differed from standard for determining negligence Report excluded from evidence: probative value of conclusions substantially outweighed by danger of unfair prejudice Report could confuse jury, lead them to improperly apply preventability standard
19 Modest Proposals 1. Avoid legalese and explicitly disclaim it Preventable does not equal negligence or recklessness
20 Modest Proposals 2. Consider bifurcated approaches or alternatives to automatic accident review, depending on the type of incident Discretion Discretion Flexibility
21 Modest Proposals 3. Ensure the punishment, if any, fits the crime, and exonerate where appropriate Consider effect on your employees and credibility issues Off-duty incidents included?
22 Modest Proposals 4. Be alert to Involvement of Third Parties and to Strategic Benefits to the Public Employer You need a discretionary exercise mechanism
23 Modest Proposals
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