Benefits of Accident Investigations and Documentation

By Brian P. Gabriel, Esq. and Joseph M. Motto, Esq., Campbell Durrant Beatty Palombo & Miller, P.C.

A persistent concern among municipalities is that written documentation of an accident or injury will be used against the entity in subsequent negligence litigation. Although this fear raises a legitimate issue that warrants legal analysis, it is far outweighed by the protections of Pennsylvania Rule of Evidence 407 and the benefits associated with minimizing future liability by documenting, investigating, and correcting hazardous conditions in post-accident investigative forms.

Pennsylvania Rule of Evidence 407 governs the admissibility of “subsequent remedial measures,” which are measures taken by a defendant that would have made an earlier injury or harm less likely to have occurred. Rule 407 excludes evidence of subsequent remedial measures from trial when offered to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Even where this evidence is admissible for some other purpose, Rule 407 entitles the defendant to a limiting jury instruction clarifying that the evidence should not be considered in determining negligence, fault, or culpable conduct.

Rule 407’s exclusion of subsequent repairs and remedial measures from evidence at trial is based on the public policy of encouraging—or at least not discouraging—defendants to take action to remedy dangerous conditions and prevent further injury to the public. Without such a rule, defendants would be hesitant to take corrective action out of fear that it could be used as evidence of fault in any negligence litigation arising out of the accident or injury. In adopting Rule 407, Pennsylvania has acknowledged that defendants should not be punished for making safe dangerous conditions or remedying flawed policies. Rather, responsible parties should be encouraged to take corrective action whether or not they were negligent in the first instance.

Municipalities should therefore utilize post-accident investigative forms to document accidents and injuries, identify possible causes, and promptly determine what corrective actions might be taken to remedy any dangerous conditions. This process is invaluable to minimizing future liability, and Rule 407 will keep most of the information gathered in the post-accident investigative forms out of evidence at trial in any subsequent negligence litigation. These benefits are even more clear-cut where the accident falls under the Pennsylvania Workers’ Compensation law, which governs injuries suffered by workers in the course of their employment. In this scenario, workers’ compensation provide an exclusive remedy and employees are not permitted to pursue a negligence (or other) lawsuit to recover. This eliminates any concern that information contained in a post-accident investigative form will be used to show liability against the municipality in the context of a workers’ compensation claim.

Importantly, however, post-accident investigative forms are not without some risk. Municipalities should be aware that all statements made in such forms may not be excluded from evidence at trial. In keeping with the purpose of Rule 407, the admissibility of information contained in a post-accident investigative form depends on whether the form contains recommendations for repairs, remedial measures, or other corrective actions that would lead to increased safety moving forward. Statements contained in the forms are likely admissible despite Rule 407 where the form merely documents what went wrong at the time of the accident without offering guidance on how to make it less likely to occur in the future.

The benefits associated with utilizing post-accident investigative forms and minimizing future liability clearly outweigh the risks discussed above. Municipalities will be best positioned by using post-accident investigative forms that are geared towards preventing future accidents through corrective action rather than merely gathering information about the events surrounding the underlying accident. This is why emphasis has been placed on this through Loss Control Standard #4 – Accident Investigation. Municipalities should consult with their legal counsel to review post-accident investigative forms to establish a clear theme and purpose of corrective action. This will help to keep the form under Rule 407’s exclusion of subsequent remedial measures.

Revised 01/12/15