Trial Magazine

Other similar incidents (OSIs)—an evidentiary staple in products liability cases—are less commonly applied in trucking cases. When they are, OSIs tend to be used to support negligent hiring and entrustment causes of action and to focus on the truck driver’s prior misconduct. But OSIs can help prove other facts in trucking cases, including the risk posed by the defendant’s conduct, the foreseeability and magnitude of that risk, and even causation.

Strict products liability cases focus on the product’s dangers, while trucking cases are based on negligence and whether the defendant exercised ordinary care. Nevertheless, the types of facts that OSIs may help prove in products liability cases have analogues in trucking cases. Using the products liability framework is a starting point for applying this evidence in the transportation realm.

For example, in a products liability case, OSIs may be evidence that the product is defectively designed or unreasonably dangerous because the manner in which it was designed or manufactured caused it to harm the user. In a trucking case, OSIs may be used to show that the truck company’s policies, procedures, and practices are unreasonably dangerous because they resulted in the company’s drivers causing injuries to other motorists.¹

Whether a product is unreasonably dangerous generally is determined by the consumer expectation test or the risk utility test.² Similarly, in a negligence claim, “the amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.”³ OSIs can demonstrate that a trucking company was negligent for adopting policies, procedures, and practices that it knows or has reason to know increase the risk of harm to people on the roadways or for failing to adopt policies, procedures, and practices that it knows or should know are necessary to prevent such injuries.

Policies, Procedures, and Practices

A trucking company should have policies, procedures, and practices to ensure that its employees and drivers are well trained and qualified to perform their jobs safely and that the manner in which the company assigns, dispatches, and delivers shipments is safe. OSI evidence can demonstrate that the company has failed to adopt such policies or that the policies it has adopted are ineffective or affirmatively unsafe.

\Because the plaintiff bears the burden of establishing substantial similarity, obtaining OSI evidence before trial requires plaintiff lawyers to define the parameters of what is a “similar incident.” The best way to obtain such evidence is through targeted discovery to the trucking company seeking OSIs caused by the same dangerous practice that caused the injuries in your trucking case. You also can reach out to other lawyers to discover any other relevant OSI evidence.

Building the Negligence Claim

Legally, the admissibility standard for OSI evidence should be the same in a trucking case as in a products liability case. Practically, however, getting this evidence admitted in trucking litigation may be more challenging. Judges are more used to seeing OSI evidence in the context of products liability claims, so be prepared to explain why the evidence is just as probative in trucking cases.

Also, OSI evidence in motor vehicle collision cases often is evidence of the driver’s prior negligent conduct and runs up against evidentiary rules prohibiting evidence of prior bad acts. ­Nevertheless, the same basic facts that underlie whether a product is unreasonably dangerous are relevant to determining whether a trucking company’s policies, procedures, and practices are negligent.⁴

Accordingly, in a trucking case, OSIs can establish the existence and magnitude of the danger posed by the trucking company’s policies, procedures, and practices; the company’s knowledge or notice of the danger; and the company’s ability to mitigate the danger by means of safer alternative policies, procedures, and practices. The foreseeability of the harm, the magnitude of the risk, and the effectiveness of alternative policies and procedures are relevant to the duty element, as well as the breach element.⁵ And OSI evidence can be probative of all these issues.

Magnitude and foreseeability of the risk. The most obvious and intuitive use of OSIs is to prove the magnitude and foreseeability of the risk.⁶ For example, in Chrysler Group, LLC v. Walden, a four-year-old child was killed in a Jeep Grand Cherokee by a fuel-fed fire after a rear-end collision punctured the fuel tank. The plaintiffs introduced evidence of 17 other rear-end crashes involving Chrysler vehicles with similarly located fuel tanks to support their theory that Chrysler had knowledge of the risk posed by that design. The jury found for the plaintiffs, and the ­appellate court affirmed the use of OSIs, explaining that the other incidents, while not all involving the same model vehicle, were sufficiently similar to be admissible.⁷

When the trucking company’s policies, procedures, and practices have resulted in injuries before, that may show the business model that these policies reflect poses a risk—and that the defendant was or should have been aware of the risk (and acted to mitigate it).⁸

Remember that the magnitude of a risk has two aspects: frequency and severity. The risk may be significant because it results in many OSIs, because it results in severe injuries, or both. Of course, the evidence has a greater impact if there are many OSIs that resulted in severe injuries. But even if most of them did not cause severe harm, having many OSIs still tends to demonstrate the defendant’s negligence and disregard for a serious risk. Conversely, if few OSIs exist but they resulted in serious injuries or death, then the defendant’s failure to address the risk still may support a finding of negligence or gross negligence.

For example, in Firestone Rubber & Tire Co. v. Battle, the trial court admitted the testimony of the victim of a prior tire explosion similar to the one at issue. The survivor testified about the circumstances of the prior explosion and the severe injuries she sustained. The appellate court agreed that this testimony was admissible to show the severity of the risk, which was probative of whether the defendant acted with conscious indifference by failing to issue an adequate warning about the risk of such an explosion.⁹

Safer alternative policies and procedures. It is less obvious how OSIs can establish the existence and feasibility of a safer alternative policy, procedure, or practice in a trucking case, but products liability cases shed light on how to accomplish this.¹⁰

For example, in Yassin v. Certified Grocers of Illinois, Inc., the plaintiff (a little girl) caught her hand in a meat tenderizer—the safety guard was disabled because the machine worked faster without the guard in place.¹¹ Other models of the machine had alternative designs that made it less likely they would be used without the guard in place, and the plaintiff offered evidence of the minimal number of OSIs involving these alternative designs.¹²

The trial court excluded the evidence, and the appellate court affirmed but observed that “such evidence is admissible to show the feasibility of alternative designs, defendant’s knowledge of a safe design, and many other purposes other than as an admission of negligence. Evidence of the number of accidents with the [alternative design] would show the efficacy of the safety measures that plaintiff sought, a fact that is certainly relevant to this litigation.”¹³

Yassin’s reasoning can apply to a trucking case. Evidence of OSIs could be used to compare the number (or severity) of incidents under the defendant’s unsafe policy, procedure, or practice to the number (or severity) of incidents under the safer alternative ones. Assuming the number or severity of incidents, or both, is significantly reduced under the safer practice, the OSI evidence supports the plaintiff’s claim that the defendant’s policy, procedure, or practice was unreasonably dangerous.

For example, imagine that allowing student drivers to drive while their truck driver trainers sleep results in a fatality crash for every 100,000 miles driven, but a practice of permitting a student driver to drive only while the trainer is on duty and supervising the student results in a fatality crash for every 300,000 miles driven. Comparing OSIs under the two different practices could demonstrate the risk (and therefore the negligence) of the former.

Causation. When courts in products liability cases hold that OSIs are relevant to prove causation, they do so because evidence that other similar products have failed under similar circumstances tends to show that the cause of the failure in the immediate case was a product defect, not some other cause.¹⁴

Some courts have held that offering evidence of OSIs “requires that the plaintiff establish the following factors: (1) the products are similar; (2) the alleged defect is similar; (3) causation related to the defect in the other incidents; and (4) exclusion of all reasonable secondary explanations for the cause of the other incidents.”¹⁵ Although not a universally recognized rule, it is logical that an OSI could tend to prove causation in a later incident only if the prior incident was caused by the same dangerous characteristic.

The same rationale can be applied in a trucking case. If, with no plausible alternative explanation, other incidents were caused by the same dangerous practice involved in the litigation, then evidence of these prior incidents tends to make it more likely that the incident at issue was caused by the dangerous practice.

For example, in Elk Corp. of Arkansas v. Jackson, a truck driver sued the company that loaded his trailer, alleging that it negligently loaded the cargo, which shifted and tipped over the plaintiff’s trailer while in transit.¹⁶ The trial court admitted testimony from another truck driver—whose trailer was also loaded around the same time by the defendant—who said that “his load shifted the next day and almost turned over also.”¹⁷ The defendant argued that the two incidents were not sufficiently similar for the other one to be admissible. But the court disagreed, stating “that the same type of cargo was loaded in the same way, by the same company, picked up the same day, and experienced similar problems, mak[ing] the occurrence similar enough to be relevant on the issue of whether [the defendant’s] loading practices were negligent.”¹⁸

Another example of using OSIs to prove causation in a trucking case is Blake v. Ali.¹⁹ Before crashing, Ali had been driving his 18-wheeler 60–65 mph over ice-covered highways for approximately one hour, in violation of the Commercial Driver’s License (CDL) manual’s standard for such conditions. Although Ali was only a student driver, his trainer had been sleeping in the sleeper berth for the five hours before the crash because he was going to take over driving at the end of Ali’s shift so they could make their “Just in Time” (JIT) delivery time.²⁰ Consequently, the trainer did not instruct Ali to slow down and exit the highway, as the CDL manual mandated.

The defendant trucking company had a policy of teaming student drivers with trainers on JIT runs. Because 100% on-time delivery was expected, the trainees would be driving mostly unsupervised while their trainers were asleep. The plaintiffs offered evidence of many incidents in which student drivers committed driving errors on JIT runs while the trainers were asleep, resulting in injuries to other motorists. The court applied an extremely rigid standard of “substantial similarity” and admitted only two nearly identical OSIs. Nevertheless, the OSIs it admitted were evidence that the dangerous policy was a proximate cause of the crash in the immediate case.

Need for training or supervision. In products liability cases, OSIs can show the need for a warning or that the manufacturer knew that its warnings were inadequate or routinely ignored.²¹ Although failure to warn is rarely an issue in a trucking case, the failure to train or supervise frequently is. In a products case, the manufacturer’s knowledge that users have been injured because of a product’s dangerous characteristic indicates that the manufacturer should include a warning of the danger and instructions for avoiding it.

Similarly, a trucking company’s knowledge that its employees (typically its drivers) have made errors resulting in injuries to third parties indicates that the company should provide additional training and supervision to prevent similar errors in the future.

For example, in the Blake case discussed earlier, the fact that other student truck drivers had injured ­motorists by making driving errors while their trainers slept was evidence that the student drivers needed additional training and supervision to safely operate 18-wheelers on JIT runs. This can be powerful evidence to show that the trucking company knew its business model was dangerous yet made no changes to protect the traveling public.

Punitive Damages

It is beyond the scope of this article to detail the differences among all the jurisdictions regarding punitive damages. However, one common requirement is proving the defendant acted with conscious disregard of a risk to the ­plaintiff.²² Thus, to the extent OSI evidence shows that the risk posed by the trucking company’s practices was high and that the trucking company was aware of that risk, the evidence tends to support a claim for punitive damages.²³

Using the JIT example again, if a trucking company knew that its unsupervised student drivers had caused many fatal collisions on JIT runs yet continued this practice, a jury could reasonably determine that the trucking company acted with conscious indifference to the severe risk posed by that practice.

Ultimately, the logical bases for admitting OSIs in products liability cases can be applied in trucking cases. Because the overwhelming majority of published OSI cases involve products liability, the trucking lawyer almost always will have to present some of these as authority for the admission of OSIs in their cases and explain to the trial court why the same reasoning applies.

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Eric Penn is the founder of the Penn Law Firm in Jacksonville, Texas and can be reached at eric@thepennlawfirm.com. Darrin Walker is the founder of the Law Office of Darrin Walker in Kingwood, Texas and can be reached at darrinwalker@suddenlink.net.

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Notes

1. The relevant distinction between a policy, a procedure, and a practice is that a policy is written documentation (to aid in uniform application) of the ground rules of how the organization is to be operated; a procedure is written documentation (again to aid in uniform application) of the instructions of how the organization’s policies are to be followed; and a practice is the unwritten reality of how the organization operates that may or may not be in compliance with its own policies and procedures.
2. W. Page Keeton & William Lloyd Prosser, Prosser and Keeton on the Law of Torts §99, at 698–99 (5th ed. 1984). 
3. Id. §34, at 208. Moreover, “the standard of conduct which is the basis of the law of negligence is usually determined upon a risk-benefit form of analysis; by balancing the risk, in light of the social value of the interest threatened, and the probability and extent of harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.” Id. §31, at 173.
4. See Leon v. FedEx Ground Package Sys., Inc., 313 F.R.D. 615, 639 (D.N.M. 2016) (OSIs are probative of a trucking company’s standard of care because “as the risk of danger that should reasonably be foreseen increases, the amount of care required also increases.”). 
5. Restatement (Third) of Torts: Physical & Emotional Harm §7 (2010); see, e.g., Kohl v. Kohl, 149 So. 3d 127, 138 (Fla. Dist. Ct. App. 2014); Bruns v. City of Centralia, 21 N.E.3d 684, 689 (Ill. 2014); In re Certified Question From Fourteenth Dist. Court of Appeals of Tex. v. Ford Motor Co., 740 N.W.2d 206, 211 (Mich. 2007); Pasternack v. Lab. Corp. of Am. Holdings, 59 N.E.3d 485, 490 (N.Y. 2016); Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 281 (Pa. 2005); Allen Keller Co. v. Foreman, 343 S.W.3d 420, 425 (Tex. 2011).
6. See Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 912 (Tex. App. 1988).
7. 792 S.E.2d 754, 762–63 (Ga. Ct. App. 2016), aff’d, 812 S.E.2d 244 (Ga. 2018). The jury awarded $120 million in wrongful death damages and $30 million for pain and suffering; the appellate court remitted the total award to $40 million.
8. See N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 125 (Tex. App. 2001) (Evidence of prior crashes was “probative of the issue of whether [the interstate motor carrier] was aware or should have been aware of the need to exercise care to assure that its agents were not using unqualified, unlicensed drivers or falsifying records.”).
9. See Firestone Tire, 745 S.W.2d at 912.
10. Yassin v. Certified Grocers of Ill., Inc., 502 N.E.2d 315 (Ill. App. Ct. 1986).
11. Id. at 318–19. 
12. Id. at 320, 325.
13. Id. at 325–26 (excluded on other grounds).
14. Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 339 (5th Cir. 1980), decision clarified on denial of reh’g, 620 F.2d 464 (5th Cir. 1980); Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392 (5th Cir. 1972), superseded by rule as stated in Rutledge v. Harley-Davidson Motor Co., 364 F. App’x 103 (5th Cir. 2010).
15. Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C. 1995); see also Callahan v. Toys “R” Us-Del., Inc.,  2017 WL 219371, at *2 (D. Md. Jan. 19, 2017); Hickerson v. Yamaha Motor Corp., U.S.A., 2016 WL 3902833, at *2 (D.S.C. July 19, 2016); Hershberger v. Ethicon Endo-Surgery, Inc., 2012 WL 1113955, at *2 (S.D. W. Va. March 30, 2012).
16. 725 S.W.2d 829 (Ark. 1987), opinion supp. on denial of reh’g, 727 S.W.2d 856 (Ark. 1987).
17. Id. at 834.
18. Id.
19. See Final Judgment, Blake v. Ali, 2018 WL 3869047 (Tex. Dist. Ct. July 30, 2018); see also Plaintiffs’ Opposition to Defendants’ Amended Motion to Exclude Evidence of Other Accidents and Incidents, Blake, 2018 WL 3817546 (April 2, 2018). 
20. On a JIT run, in exchange for a higher payment, the trucking company essentially guarantees shipment delivery by a particular time, creating demand and pressure for the truck driver to meet that expectation. 
21. See, e.g., Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 138–40 (Tex. 2004); Funkhouser v. Ford Motor Co., 736 S.E.2d 309, 314–15 (Va. 2013).
22. See, e.g., Cal. Civ. Code §3294(c)(2) (West 2019); Tex. Civ. Prac. & Rem. Code Ann. §41.001 (11) (West 2019); Bresland v. Ideal Roller & Graphics Co., 501 N.E.2d 830, 839 (Ill. App. Ct. 1986); Chauca v. Abraham, 89 N.E.3d 475, 479 (N.Y. 2017); Hutchison v. Luddy, 870 A.2d 766, 772 (Pa. 2005).
23. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1249–50 (10th Cir. 2000); Firestone Tire, 745 S.W.2d at 912.