Brace for impact

While the industry does its best to prioritize safety, from routine discussions with drivers to onboard cameras and artificial intelligence (AI) in fleets, accidents still happen. And often, it’s not the waste hauler’s fault.

“In serious incidents, even though we are not at fault, you have to do certain things to protect yourselves and the company [from] future litigation,” said Mike Cappel, general counsel for Cincinnati-based Rumpke Waste & Recycling, during a session at WasteExpo in Las Vegas in May.

In the session Accident Investigation & Litigation: The Processes Involved, Cappel joined Rumpke’s Corporate Loss Control Manager Dan Katt to discuss how haulers can best prepare for accident investigations and lawsuits.

Cappel highlighted three key ways to protect a hauling company from litigation, including creating attorney-client privilege and protecting communications, gathering and preserving evidence and assessing the preventability of the incident.

Protecting sensitive information

It’s all too common that text and email threads are created in the aftermath of an incident, Cappel said, typically to disseminate information to key personnel, such as the driver, maintenance techs, public relations managers and others.

However, if an attorney isn’t included in those communications, those messages can be requested by the other party in the discovery process leading up to litigation or when each side builds evidence for their case.

“I’m sure you’ve all seen messages that have come across in serious incidents that you’re like, ‘Why did our person say that?’ … A rule I used to joke about as a litigator was, ‘Don’t put anything in writing you’re not willing to have read back in a future deposition,’ because, ultimately, it could be,” Cappel warned attendees.

In a legal deposition, these sometimes-candid conversations could be brought to light and might not represent the situation in the company’s best interest.

Cappel said one way to protect these communications is to include an attorney who can provide legal advice to company representatives regarding the incident. This establishes attorney-client privilege and is designed to protect communications and encourage open discussion between an attorney and client.

In determining attorney-client privilege, Cappel said, judges look at whether an attorney was included in the communication and if legal advice was being sought or given. This can include company personnel emailing general counsel for advice on a given incident or subject.

“What we’re trying to do is make sure that when a serious incident happens, that we’re responding to it and protecting the documents and doing things in anticipation of litigation,” Cappel said.

Kentucky, a state where Rumpke operates, follows a comparative negligence rule, which means that if a party is 1 percent responsible, it pays 1 percent of damages.

“Ultimately, [the plaintiff] is going to try everything that they can to show that we’re some part responsible. … So, that’s what you’ll have to look at and prepare for,” Cappel said.

“When you show up to an accident scene, you immediately should be thinking and looking two years down the road.” – Dan Katt, corporate loss control manager, Rumpke Waste & Recycling

Gathering evidence

Katt, who previously served 27 years with the Cincinnati Police Department, said companies used to focus all their attention on the accident investigation and would start thinking about legal ramifications down the road. However, companies must begin those considerations immediately, looking toward the future.

“When you show up to an accident scene, you immediately should be thinking and looking two years down the road,” he said, citing the statute of limitations. “How is this going to play out?”

Cappel said accidents can be categorized using five levels. Level 1 is company property damage; Level 2 is third-party property damage; Level 3 is when an incident involves a third party but no injuries have been reported; Level 4 is when someone leaves the scene in an ambulance; and Level 5 is when multiple people leave the scene in an ambulance or there’s a fatality.

Rumpke employs internal investigators, who have been through accident investigation classes, to gather photos and other important information when assessing an accident. For some incidents, the company uses outside accident reconstructions, which are done by a retired police officer who worked in the traffic bureau of his former department.

When at the scene, Rumpke advises its drivers only to talk to police until a company representative is present and to answer only the questions the officer asks.

“I’ll tell you how this can get twisted,” Katt explained. “[Someone] pulls out in front of a driver, and he T-bones her, and she’s injured. While they’re waiting for the ambulance, the driver’s giving first aid and checking her condition, and says, ‘I’m sorry that you got injured, that you’re feeling so badly.’ What did she hear? ‘I’m sorry.’ And that gets played back. Those kinds of things can get blown out of proportion.”

To avoid such situations, Rumpke cautions its drivers on what to say and encourages them to take pictures of the scene. Additionally, finding witnesses who are willing to remain at the scene and give a statement or provide their contact information for further questioning is beneficial.

When investigating an incident, Katt said it’s not a “linear event.” Information comes in scattered and out of order. To avoid confirmation bias, investigators should search for a conclusion from facts that have been uncovered rather than look for facts to support a conclusion.

Katt recommended taking photos of all four sides of the vehicles involved, as well as 500 feet back from the drivers’ points of view to convey what they saw before the collision.

“The key questions we want to ask [are]: What did our driver know? When did our driver know it? And what did our driver do with that information? Those are the key things that are going to be repeated and plumbed and pursued in any kind of court action,” he said.

Further investigation can include hopping in the cab and taking photos of how the scene looked from the front, as well as checking if the mirrors were adjusted properly, how the sun was hitting the windshield or if there were other distractions.

“We don’t know that unless we get in the cab and demonstrate what the driver can see at that time,” Katt said.

Preventing future accidents

To limit losses postaccident, Katt says most of the work is done prior to an incident. This includes background work, safety training, developing relationships with law enforcement and other first responders and working with the general counsel.

Cappel recommends creating an internal checklist of the documents that are needed in a potential accident litigation. For Level 3, 4 or 5 accidents, Rumpke begins preserving important documents right away. The company will pull driver-vehicle inspection reports (DVIRs), preventive maintenance inspections, monthly inspections and training records to show that safety is a priority.

Rumpke also uses GPS and camera data as evidence but is discussing internally whether these technologies could be a potential liability.

“Instead of saying, ‘Prove that he was on the phone or prove that he was texting,’ we now have AI sending us a video saying, ‘Hey, this guy was texting,’ which would be discoverable, as we’re aware,” Katt says.

Cappel added that cameras have offered benefits, though, and have helped prevent possible lawsuits.

“I think that the rewards are much greater than the risk, but you do have to actually work on … distracted driving. Make sure you do these coaching sessions and have a policy for terminating drivers who aren’t following them,” he said.

The author is associate editor of Waste Today and can be reached at hrischar@gie.net.