Investigating Truck Wrecks

Investigating Truck Wrecks

Sylvester "Sly" James, Jr.
The Sly James Firm Trial Layers, P.C.
802 Broadway, 7^th Floor
Kansas City, MO 64105
816/472-6800
Fax: 816/472-6805
Email: sly@slyjamesfirm.com
Website: http://www.slyjamesfirm.com/

The basic nature of truck wrecks requires more investigation than a simple automobile wreck. The heavy regulation of the trucking industry mandates a different approach to investigating these types of wrecks. The weight, size and speed of the truck versus a car, and the fact that many truck wrecks take place on highways where people from all over the country may be involved as either victims or witnesses, impacts the type of investigation that needs to be conducted. Further the injuries are generally more serious than those in the garden variety car wreck. As a result, the investigation of a truck wreck requires a plan.

I. Pre-suit investigation

The investigation of a truck wreck should begin as soon as the attorney receives notification of the wreck. Important information can be lost forever if the investigation is not performed thoroughly and immediately. A thorough pre-suit investigation lays important ground work for the entire case.

a. Retain a trucking industry / accident reconstruction expert.

Make immediate contact with a truck industry / accident reconstruction expert as soon as possible after you receive notification of the wreck. A good industry expert can help guide you through the investigation. A good and experienced expert can tell you what they need in order to assist you in prosecuting the claim and what documents might be out there that you may not have considered.

The vehicle should be inspected by your expert as soon as possible. A qualified industry or accident reconstruction expert will know what needs to be inspected, however, critical components are brakes, gearing and rear-end ratios, and load configuration.

ECMs (electronic control modules) record data generated by the truck and its engine. Not all ECMs record the same data, however, and not all ECMs store the data for the same amount of time. Therefore, ECMs should be examined and downloaded as soon as absolutely possible.

An experienced industry expert can also advise you as to the applicability and potential violation of parts of the Federal Motor Carrier Safety Regulations (FMCSR). He can help sort through the facts that may support liability based on the FMCSR and the documents that may help you prove the violation.

b. Preserve the vehicles.

It is important to preserve both vehicles after a wreck. Contact the trucking company as soon as possible to make sure that the involved tractor and trailer, if any, are preserved in immediate post accident condition. If you get into the case so late that the truck is already back in service, then you must determine:

- When the rig went back into service;

- Were photographs made of damage;

- Are there full and complete repair records available; and

- Names and contact information for:

- all persons who made the decision to repair the rig and put it back in service;

- all drivers/operators who have driven the rig since it as repaired and put back on the road;

- all mechanics, etc., who repaired the damages and whether they took any pre-repair photographs.

The vehicle(s) involved in the wreck should also be preserved and inspected immediately. It should be examined and inspected by your expert just as thoroughly as the tractor/trailer rig that was involved in the wreck. Gather as complete a set of maintenance history records as you can regarding this vehicle.

c. Visit the scene / inspect the vehicles.

Arrange to visit the scene and inspect the involved truck and vehicle with your expert as soon as possible. Scuff marks and other markings on the road surface may not last long and they can provide important information about vehicle travel paths and speeds that may be important to liability determinations.

Either the expert or a third person (photographer) should take photographs of the scene from as many different angles as possible. If possible, try to photograph the scene at the same time of day and year to accurately capture shadows and sun angle. Take photographs of the approach to the point of impact, paying particular attention to road signs, intersections, foliage and other things that could have influenced the drivers or their vision.

Make sure your expert takes accurate measurements of the roadway and measures any grades approaching and at the point of impact. Make note of shoulder widths, if any, and any potential "escape routes" that may have been available to either driver.

d. Records and documents.

Immediately upon notification and retention, the attorney should contact the trucking company by writing to advise them that all documents and records related to the truck, its cargo, and its driver, be preserved in their current form. For example:

1. The log book;
2. Maintenance records;
3. Employee file;
4. Bills of lading;
5. Drug and alcohol testing records;
6. Employee physical reports;
7. Witness statements;
8. Maintenance and repair records;
9. Photographs;
10. Safety records;
11. Driver/vehicle condition reports;
12. Fuel receipts;
13. Toll tickets;
14. Fuel tax records;
15. ECM downloads;
16. Equipment lists;
17. Toll tickets; and
18. Engine records

should all be preserved. The letter should be sent at least by Registered Mail, Return Receipt Requested.

e. The police or highway patrol report should be acquired as soon as absolutely possible.

Rather than simply write a letter and request the report, it is beneficial, if possible, to interview the responding officer(s) who prepared the report. In fatalities, there may be more than one investigating officer and a separate or supplemental accident reconstruction report prepared. By interviewing the investigating officer(s), you may be able to discern:

1. Whether the officer will make a good witness;

2. Does the officer have information that (s)he is considering putting or has put in the report that is damaging to your client and can you have any impact on that information before it goes into the report;

3. What were the officer's impressions of the witnesses he talked to at the scene; and

4. Is the officer aware of any peculiarities regarding the area of the accident that could be contributing factors?

f. Emergency responders/tow truck drivers, etc.

You should also interview emergency responders such as ambulance and EMT personnel. Often the EMTs or ambulance personnel will be able to provide damage and/or liability information. Was the injured party complaining of pain? Did they say anything about how the wreck happened? What did the other driver say when medical attention was offered?

Tow truck drivers are often very helpful witnesses. They can describe the debris on the ground around the point of impact. They were probably in the cab of the tractor and can tell you what they saw there - pill bottles, beverage cans, condoms, an open cell phone, partially eaten food - all of which might add information about the drivers' pre-crash state or actions.

In some instances, tow truck drivers have been known to take photographs of wrecks. Find out if they have any. Find out where they took the vehicles, storage costs, and who contacted them about the vehicles or the storage of the vehicles.

If the wreck occurred in a populated area, do not forget to interview people in businesses or homes adjacent to the scene. They may have heard or seen the crash, or they may have contacted the police or highway patrol. They may have been the first people on the scene.

g. Witnesses

Track down all known witnesses as soon as you can. Many witnesses are listed on police records, but be sure to ask witnesses you locate whether they know of or saw others at the scene. When wrecks occur on highways, the witnesses could literally be anywhere in the country when you locate them. From a practical standpoint, you should contact all of the witnesses by telephone at the very least. You may then decide whether to personally interview them or to have an investigator do so.

Witness statements should be recorded and, if possible, videotaped. Prepare the witness as if you were going to produce them for a deposition or trial and then record their statement. Take care not to overlook or "short change" damage information that an eye-witness can provide.

h. Media.

Check local media, particularly within a small town, for newspaper articles. In smaller towns, a truck wreck in its vicinity is often news. Do not forget to check for radio and local television tape as well. Further, reporters often get calls from people who claim to have knowledge of newsworthy events (everybody wants to be on TV or quoted in the paper!) Reporters may also be able to tell you things that were cut from footage or edited out of print.

II. Post-suit investigation/discovery.

Once you have collected all of the information you can prior to filing suit, you should continue your investigation through discovery after filing suit. Some information that you may have wanted in the pre-suit investigation may not be readily available to you without the benefit of subpoena power or discovery rules.

a. Interrogatories and Requests for Production.

The basic discovery tools of interrogatories and requests and for production of documents are extremely useful in the early phase of these types of cases. The interrogatories can give you the basic information of who, what, when, where and how.

Interrogatories are often most useful for identifying witnesses with knowledge and information regarding the facts of the case, protecting your flank against late disclosure or no disclosure of expert witnesses, basic information about the driver and company, and to discover insurance information which is vital to the prosecution of your claim. For example, in some instances where there is a small policy and insignificant assets upon which to levy a huge judgment, you would want to know that before you took certain actions as opposed to after. Make sure that you ask for the production of any recorded statements your client may have given to an insurance adjuster.

Requests for production of documents should cover every area imaginable. Records regarding the purchase, ownership, maintenance, and use of the truck are also important. State permits purchased by the company in order to comply with regulations are important. Dispatch records, phone and pager logs and bills, the log file, and any documents that would indicate telephone contact between the driver of the truck and the dispatch while on runs during the applicable time period should be requested. If the target operator is not a party to your case, serve a subpoena on him/her requesting log books, gas receipts, meal receipts, credit card receipts and any other documents that might help you prove where they were and when.

You might also want to use your Request for Production in order to gain entry on the premises of the truck company and/or its maintenance/repair facilities. It may be helpful to actually visit the premises to see first hand what sort of operation is run.

b. Corporate and Safety Documents.

Training materials, safety meeting records and sign-in sheets should be requested through the use of requests for production of documents. You should fashion a request designed to produce any handouts, materials, articles, or regulations used any safety meeting conducted by the company or a consulting safety consultant for the drivers.

Request any driver handbooks, corporate Mission Statements, disciplinary policies and procedures, or other policies and procedures that may be applicable. In anticipation of an objection from defense counsel, I usually request only the table of contents from the policy and procedure manuals in the initial request. I can then select specific policies from the manual to avoid or obviate the objection or the entire manual if it is not extensive.

c. Depositions.

Depositions of key parties are absolutely critical during the discovery phase. There are many ways to order to depositions of the parties and the order is often case specific. Some people like to start with the drivers while others like to start with corporate representatives. Regardless of the order, all parties, witnesses and corporate agents who have information about the wreck or the workings of the trucking company should be deposed.

Any list of deponents in a truck wreck case should include the following:

1. Truck driver;
2. Company Safety Director;
3. Company document custodian;
4. Corporate designee;
5. Dispatcher;
6. Maintenance Director;
7. Mechanics involved in repair;
8. Training personnel;
9. Human Resources personnel, if any;
10. Investigating officers;
11. Tow truck driver; and
12. EMTs/ambulance personnel.

III. Conclusion

No stone should be left unturned in the investigation of a truck wreck. Time is a crucial element and the investigation should proceed as soon as possible after you have been retained. You must be inquisitive and imaginative in planning your investigation but, most of all, you must be thorough.