The Transportation Law Update is a quarterly publication reporting on specific cases, legal developments, trends and other relevant news. In each issue of the Transportation Law Update,we will present information that is helpful across industry boundaries and will also inform you about upcoming events and seminars of interest.
In This Issue:
Fighting Hindsight with Foresight in Emergency Settings: Do Computer Animations and Simulations Help or Hinder?
The assessment of responsibility or fault for a motor vehicle crash typically focuses on a threshold question: Could the crash have been prevented? The standard against which a defendant driver's conduct is judged is the "reasonable person standard." The reasonable person is an imaginary, good-natured, well-meaning, hypothetical "ideal" person whose conduct is considered ordinary and against whose imaginary conduct the actions of the alleged negligent person should be judged by the jury or judge. The reasonable person is assumed to act with ordinary care, or the care a reasonably careful person would use under circumstances similar to those shown by the evidence. A jury is not told how a reasonable person acts – that is for them to determine.
Emergency settings often impact on the determination of reasonableness of a defendant's conduct. Under the emergency doctrine, the law does not require a person to act with the deliberation and care one might have in a non-emergency situation because of the suddenness of a situation not caused by that person’s actions or inactions. Some state's jury instructions point out that if at that moment the defendant driver does what appears to her to be the best thing to do, and if her choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, she does what the law requires of her.
This is true even though in the light of after-events, it should appear that a different course would have been better and safer. This is so even if it later appears that her choice was not the best or safest choice. This is so even though, in hindsight, some other or better course of conduct could or should have been followed under normal conditions.
The concepts of hindsight and hindsight bias should be considered by defendants, their insurers and their lawyers in determining how a defendant's actions will be judged by a trier of fact, usually a jury of his or her driving peers. As Justice Cardozo stated many years ago, post-event evaluators (like jurors, trial judges or appellate judges) should not look back at the mishap with the “wisdom born of the event.” Green v. Sibley, Lindsey & Curr. Co., 257 NY 190, 192, 177 N.E. 416, 417 (1931). Whether a jury uses foresight, as opposed to hindsight, to evaluate the alleged errors of a defendant is subject to strenuous debate both in the legal arena and social psychological arena.
Some social scientists have suggested that decision makers such as jurors may be subject or susceptible to a human judgment phenomena known as “hindsight bias.” See Casper, J.D., Benedict, K. and Perry, J.L. (1989). “Juror Decision Making, Attitudes, and The Hindsight Bias. Law and Human Behavior,” 13, 291-310. This tendency was first highlighted in the writings of Fischhoff. Fischhoff, B. (1975) “Hindsight ≠ Foresight: The Effect of Outcome Knowledge on Judgment Uncertainty.” Journal of Experimental Psychology: Human Perception and Performance, 1, 288-299. The concept of “creeping determinism” has provided an explanation for the hindsight phenomena in that a retrospective evaluator attempts to make sense out of all that he or she knows about an event and assimilate outcome knowledge of what they already know about the event. In so doing, decision makers rewrite the story of what occurred and in so doing it is difficult sometimes for these individuals to realize how alternative outcomes or “counterfactuals” could have occurred. In the social psychological literature, it appears that when an evaluator knows the results of an event, he is twice as likely to conclude that the actor involved should have been able to anticipate events of which the actor has no knowledge before the event occurs. Such a phenomenon will clearly impact on a jury's assessment of whether the defendant could have prevented the traffic crash.
Although jurors are supposed to set aside the fact that an outcome has occurred and decide the case based solely on the evidence available before the incurred outcome (see Devit, E.J., Blackmar, C.B., & Wolff, M.A. (1987) “Federal Jury Practice & Instructions: Civil.” (4th Ed.)), the chances of that happening may be compromised when computer animations or simulations are used. Some researchers suggest that more studies should be conducted on whether the common usage of traffic accident reconstruction animations may actually increase the chances that jurors use hindsight bias in making their decisions.
Social psychologist Neal Roese, a professor at the University of Illinois and noted expert on hindsight bias, has noted that because traffic accidents involve a sequence of rapidly changing events that begin and end within seconds, it is difficult to mentally simulate how they happened. As he and his co-authors, Michael Dilich and John Goebelbecker, of Foresight Reconstruction noted in their first publication on the subject, "A Distorted Perception of Foreseeability: Computer Animation of Traffic Accident Reconstruction," 2005 Transportation Research Board Annual Meeting, accident reconstructionists often use computer animation technology to illustrate their conclusions about how and why a traffic crash happened and, perhaps, how an incident could have been prevented.
It would be one thing if the animation was played once, in real time, only from the driver's point of view, and only up to the time when the threat of a collision was becoming apparent, and then abruptly stopped. However, such is not the case with animations used in courtrooms throughout the country. Instead, the animations are played repeatedly as the experts, the lawyers and eventually the jurors themselves dissect in minute detail every fraction of a second of an incident with information that the defendant driver never had when he faced his emergency situation.
Roese and his colleagues followed up this statement of concern addressed to an academic transportation research audience by conducting research comparing the use of computer animations on the one hand with text descriptions and diagrams on the other hand. (Roese, Fessel, Summerville, Kruger and Dilich, "The Propensity Effect – When Foresight Trumps Hindsight," 17 Psychological Science 305 (2006)). In this article, they point out that hindsight bias is the inability to disregard known outcome information when estimating earlier likelihoods of that outcome. After acknowledging that the phenomenon known as "propensity effect," a reversal of this hindsight bias, is apparently unique to judgments involving momentum and trajectory, the researchers made important conclusions. First, the propensity effect occurred only in judgments involving dynamic stimuli (computer animations of traffic accidents vs text descriptions), but only when foresight judgments were temporally near (versus far from) a focal outcome. Second, hindsight bias was more than doubled when computer animations, rather than text-plus-diagram descriptions, were used.
Their conclusion is important. Computer-animated reconstructions of real accidents hold the power to alter likelihood judgments made in legal contexts.
In Part Two of this article, other research findings about hindsight bias will be discussed together with ways to minimize its potential adverse effect on defendants being judged by plaintiff's lawyers, their experts and jurors.
Contact for more information: Carlton D. Fisher
DOT Audits: What to Expect and How to Prepare
So you are a motor carrier that is going about your business when suddenly you get a call from the United States Department of Transportation (DOT) advising you that they intend to conduct an on-site review of your operation to verify compliance with ALL of the hundreds of Federal Motor Carrier Safety Regulations. And they’ll be there in one hour. Thinking quickly, you decide that your options are (a) hang up and hope they don’t call back, (b) barricade the door and turn out the lights, (c) act thrilled and invite them to stay for dinner (d) contain your inner terror and begin compiling your company records. Assuming you chose (d), this is a primer for what to expect during the DOT auditing process.
To begin, recognize that the DOT has the authority to conduct no-notice, on-site inspections of any motor carrier. During the audit, the auditor is free to look at every record of every employee, every load of cargo and every piece of equipment. But wait! You point out that you have more than one facility with records in more than one location. Unfortunately, that won’t help you much. The DOT gives companies just 48 hours to get all of their records in the location chosen by the auditor. (Suddenly options (a) through (c) don’t look so bad…) While it is important to recognize that the DOT has broad powers of investigation, practically speaking most audits are preceded by a phone call from the auditor to schedule a mutually agreeable time and location, followed by a letter confirming where and when the review will be conducted.
Officially called a “Compliance Review,” a DOT audit consists of an on-site examination of nine areas of a motor carrier’s operation: (1) an opening interview with the company representative, (2) interviews with the carrier’s staff, (3) an accident review, (4), a financial responsibility review, (5) a maintenance review, (6) a CDL and drug/alcohol testing review, (7) a hazardous material review, if applicable, (8) an hours of service review, and (9) a close out interview. Areas (3) through (8) are the six areas used by the DOT to rate a motor carrier. The review will typically last most of a day, during which time the auditor will be camped out in your facility and will have your employees scurrying for documents and giving tours of the facility and equipment. It is recommended that one person be assigned to directly answer the auditor’s questions and receive requests for documents.
Following the review, the auditor will typically provide a two-part summary of violations. Part A lists the violations in each category; Part B, details an explanation for each violation, recommendations for correcting each violation, and a proposed safety rating. The Part B Violations address the six factors referenced above and identify them as either Critical or Acute.
The number and type of violations determine whether a motor carrier receives one of three possible ratings: Satisfactory, Conditional and Unsatisfactory. If your company receives a Satisfactory rating following an audit, your operation and your documentation are generally deemed to be compliant with the Federal Motor Carrier Safety Administration’s regulations.
If your company receives a Conditional rating, this means the DOT has discovered significant violations that require corrective action, but the violations are not so severe to shut down operations. A Conditional rating allows the motor carrier to continue operations, but requires that the motor carrier engage in corrective action to fix the deficiencies outlined in the Summary of Violations provided by the DOT auditor.
Receipt of a Conditional rating presents a motor carrier with two courses of action. First, the motor carrier can dispute the process by which the proposed rating was determined by requesting an Administrative Review of the decision within 90 days. Second, if the motor carrier concedes the process was done appropriately, the DOT will issue a final Conditional safety rating within 30 days of the audit, and the motor carrier can turn its attention to corrective actions to return it to a Satisfactory rating.
Once the motor carrier has written records establishing at least 30 days of corrective actions, the motor carrier can request a change in safety rating at any time. Further, if asked, the DOT will typically provide guidance as to what areas to submit documentation in support of the request to restore the Satisfactory safety rating.
If a motor carrier receives a proposed Unsatisfactory rating, it is prohibited from operating on the beginning of the 61st day after the notice of the proposed Unsatisfactory rating is issued (46th day for hazmat). However, a 60-day extension can be given if the carrier makes a good faith effort to improve its safety fitness. Once a proposed Unsatisfactory rating becomes final, the FMCSA will issue an order declaring the motor carrier out of service.
In addition to the obvious challenges that result from receiving a Conditional or Unsatisfactory rating, more bad news usually accompanies it in the form of a Notice of Claim. A Notice of Claim consists of three parts. First, is a Summary of the Violations, which describes the specific violations. Second, is a Notice of Abatement, in which the DOT sets forth the actions that a motor carrier must take to cease from further violations. Third, is a monetary penalty as a consequence of the violations. The DOT can and routinely does issue monetary penalties that can be many thousands of dollars. Fines vary depending on the nature of the penalty, the circumstances of the violation, the company’s history of prior offenses and various other considerations. The Notice of Claim must be paid in full within 30 days or the motor carrier must request an Administrative Adjudication in writing within 30 days after service of the Notice of Claim. Payment plans and reductions in fines can be granted in certain exceptional cases. If the carrier requests an Administrative Adjudication, it may chose to have the dispute heard without a hearing, request a formal or informal hearing, or seek binding arbitration. The process for disputing a Notice of Claim is technical and legal assistance is generally recommended.
Taken together, the receipt of a Conditional or Unsatisfactory rating, the monetary penalties, legal expenses and expenses of implementing corrective action, can be an extremely costly experience for any motor carrier. As a consequence, by far the most cost effective and efficient strategy is to focus on proactively complying with the requirements in the six motor carrier safety areas discussed herein.
Contact for more information: Stephen A. Oakley
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship |