Appellate Division Addresses Admissibility of Witness/Party Statements, Opinions on Fault and Post-Incident Actions by Defendant
In Hasan v. Williams, a personal injury lawsuit arose out of a truck accident which occurred on Route 78 in New Jersey. Around 4am on a June morning, plaintiff, Ahmed Hassan, was operating a tractor trailer westbound on Route 78. Suddenly, he felt himself on the side of the road. Hassan could not recall how fast he was going or other pre-crash details. At the same time, Roland Williams was operating a tractor trailer on Route 78 West. Williams truck was on cruise control set at 62 mph when “all of a sudden, out of nowhere, I come up on this FedEx truck.” Williams attempted to change lanes to avoid a collision, but was unable due to traffic. Despite slamming on his brakes, Williams struck Hassan’s tractor trailer in the rear. Hassan sued Williams and his employer, ABF, alleging personal injuries as a result of the accident. The defendants contested liability and produced an expert report opining that Hassan cut in front of Williams at a slow speed from an entrance lane causing the accident. The jury found Hassan to be 51% at fault, resulting in a no-cause of action. Plaintiff appealed the verdict.
The issues on appeal concerned the trial court’s rulings barring various evidence from being introduced at trial. Specifically, Hassan sought to introduce statements of Williams and other ABF employees indicating that Williams was at fault for the accident. Additionally, Hassan sought to introduce Williams’ deposition testimony that Williams did not object to ABF firing him as a result of the collision. Also, Hasan sought to introduce a statement of Williams whereby he provided “I hit this FedEx truck in the rear. It automatically makes you wrong when you hit someone in the rear. I don’t care what the circumstances are.”
Hassan also wanted to introduce into evidence ABF’s post-accident letter firing of Williams. ABF Manager, Chuck Witter, wrote “The Safety Department in Fort Smith, AR has determined that your accident…has been judged preventable. This is to advise you that you are hereby discharged due to your recklessness resulting in a serious preventable accident while on duty.” The letter continued “In accordance with Article 44 of the Central Pennsylvania Over-the-Road and Local Cartage Supplemental Agreement, this discharge is for recklessness resulting in a serious preventable accident.”
Hassan also sought to introduce excerpts from the deposition transcript of Sam Cates, who worked in ABF’s safety department and was ABF’s representative on issues with safety. These excerpts provided:
Q. As the director of safety, are there any circumstances where ABF finds that it is allowable for its road driver to run into the back of another car?
A. No sir.
Q. As the director of safety for ABF, based upon the statement by Roland Williams, would you agree that he violated ABF's rules and regulations for road drivers?
A. I would say he failed to maintain proper lookout of what was ahead of him and didn't allow himself an out. He should have been able to stop or change lanes.
Q. Would you agree that that is a violation of ABF's rules and regulations for its road drivers? . . . .
A. No, I wouldn't know that I [would] say it's a violation. I would say it's contrary to what we train in.
Cates also testified that ABF concluded the accident was preventable. He explained Witter’s letter stating that conclusion was based on the accident preventability analysis that Cates’ department conducted. Cates also explained he would not have called Williams “reckless” but “inattentive.”
At the in-limine hearing, the court ruled Cates could describe ABF’s rules and regulations but not say if in ABF’s opinion, Williams actions violated their rules. The court also barred Williams’ statement discussing his own fault, as well as Witter’s letter in its entirety. The court noted “It’s inappropriate to have somebody come in and offer an opinion on the ultimate issue in the case” which is the “jury’s determination.” The court also based this ruling in part, on the facet that Witter and Cates lacked personal knowledge of the accident.
The Appellate Court noted that the trial court erred in reasoning that the Cates’ deposition excerpts and statements in the discharge letter usurped the jury’s function by addressing an “ultimate issue.” The Appellate Division noted the Evidence Rules abolished the so-called “ultimate issue rule” and that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. N.J.R.E. 704. Further, cases make clear that a witness may testify that a defendant deviated from a standard of care. The court noted that neither Cates, nor Witter said how the case should be decided or offer a legal conclusion regarding whether Williams acted negligently. Rather, Cates testified as a factual matter that Williams deviated from ABF’s training and protocols. Cates also concluded, in his safety evaluation, that the accident was “preventable.” That opinion was repeated in Witter’s letter. The Appellate Division noted “preventable” is not the same as negligent.
The Appellate Division also rejected that the statements of Cates, Witter and Williams were excludable hearsay. They were admissible as statements of a party opponent. Witter wrote his letter and Cates made his statements, in their respective capacities of representatives of defendant ABF. The statements were offered against a party opponent. N.J.R.E. 803(b). And, in each case, the statement was made “by a person authorized by the party-opponent to make a statement concerning the subject.” N.J.R.E. 803(b)(3). Williams’ statement was admissible against him, because it was his “own statement, made either in an individual or in a representative capacity.” N.J.R.E. 803(b)(1).
The court also addressed the defendant’s position that both Witter and Cates lacked personal knowledge about the collision. The court noted that lack of personal knowledge is not a reason to exclude their statements as “Nor must the proponent demonstrate that the party-opponent’s statement has an ‘indicia of reliability,’ as defendants argue. Statements by a party-opponent are not subject to trustworthy considerations.”
The court noted that since Cates and Witter’s statements are admissible as statements of a party-opponent only against ABF, and Williams’ statement is admissible as a statement of a party-opponent only against Williams, the trial court on remand will need to determine whether the limited use of the statements can be adequately addressed through jury instructions.
Alternatively, if plaintiff attempts to offer some of the statements as statements against interest (N.J.R.E. 803(c)(25)), then they could be offered against all defendants. Plaintiff would need to establish that Cates or Witter’s statements were “so far contrary to ABF’s pecuniary, proprietary, or social interest, or so far tended to subject ABF to civil liability that a reasonable person in Cates or Witter’s position would not have made the statements unless Cates or Witter believed it to be true.”
The court determined that evidence of Williams’ discharge was properly excluded because his discharge was a post-event “remedial measure.” N.J.R.E. 407 excludes evidence of Williams’ discharge, but the rule does not exclude evidence of ABF’s investigation including Witter’s finding that Williams violated ABF’s safety protocols and the collision was preventable; and Witter’s opinion that Williams acted recklessly.
Lastly, the court found that when weighing the balances N.J.R.E. 403 i.e. whether the probative value of the statements would be substantially outweighed by the risk of undue prejudice, the excluded statements had significant probative value.
The court remanded the matter for a new trial.