Dealing with the question for the first time in a negligence case involving a fired truck driver, the Indiana Court of Appeals decided that a post-incident investigation is not an inadmissible subsequent remedial measure.
The guardianship of Kristen Zak sued J.B. Hunt Transport Inc., its driver Terry Brown Jr., her boyfriend Matthew Robinson, the Indiana State Police, and others after the car she was traveling in with Robinson in snowy conditions left the road and struck a disabled Hunt tractor-trailer in the median of I-65 in January 2006. Hunt was left with severe brain injuries as a result of the impact with the tractor-trailer.
An hour before the crash, Brown’s truck jackknifed and came to rest in the median. An ISP officer responded to the crash and determined that the truck was not impeding traffic and was not a safety hazard, and left the scene before the tow truck arrived. The semi-truck’s flashers were not on and no cones or reflective warning triangles were placed around the semi.
Robinson said he thought he was going between 60 and 70 mph at the time of the accident.
After two mistrials, at the third trial, the jury found Hunt, Brown and Robinson negligent, apportioning fault of 30 percent, 30 percent and 40 percent respectively.
Hunt and Brown appealed, raising numerous arguments, including the trial court improperly admitted certain evidence and excluded other evidence. One issue raised is whether the trial court erred by admitting reports generated following Hunt’s review of the accident, as well as the deposition of Brown’s supervisor at the time of the accident. Brown was fired after the accident.
The appellants claimed this evidence was inadmissible evidence of subsequent remedial measures, barred by Indiana Evidence Rule 407. There is no Indiana case directly on point, Judge John Baker noted, so the judges turned to other jurisdictions. Most agree that a post-incident investigation and report of the investigation do not constitute subsequent remedial measures. The 10th Circuit Court of Appeals found remedial measures are those actions taken to remedy any flaws or failures indicated by the test. The Supreme Court of Alaska reasoned that one cannot investigate an accident before it occurs, so an investigation and report cannot be a measure that is excluded.
The COA found analysis from these courts compelling and agreed that evidence of post-accident investigations are not automatically excluded as subsequent remedial measures.
The judges also held the trial court did not err in giving certain jury instructions and in denying Hunt’s tendered instructions. They also affirmed denial of Hunt’s motion for a directed verdict regarding duty or proximate cause.
“The appellants would have us draw a line, but we question, where should it be drawn? What proximity is ‘close enough’ or ‘simultaneous enough’ for a duty to be imposed as a matter of law — within visible sight of the driver? Five minutes away? Ten? Thirty? We believe that this issue is heavily laden with factual questions that must be answered by a jury,” Baker wrote in J.B. Hunt Transport, Inc., and Terry L. Brown, Jr. v. The Guardianship of Kristen Zak, 45A03-1506-CT-670.
The judges held there were multiple questions of fact that needed to be answered by a jury, and there was no basis on which to second-guess the jury’s answers.