Embed Size (px)
Citation preview
Looking Backward, Thinking Backward:Hindsight Judgment of Human Error in
Transportation Accidents
18th National Conference on Rural Public and Intercity Bus Transportation
October 20, 2008
Carlton D. Fisher
Carlton D. Fisher
Partner in national law firm of Hinshaw & Culbertson LLP, headquartered in Chicago, Illinois
Fellow of the American College of Trial LawyersTried to verdict more than 75 civil casesOne of the founding members of TIDANational trial counsel for several transportation
companiesDisciple of the “Let’s Eliminate Hindsight Bias”
Guerrilla Movement
Evaluating Driver Behavior:How Hindsight Bias Can Affect and
Effect Decisions about Reasonableness
FORESIGHT VS. HINDSIGHTA Legal Comparison of How Litigants and
Their Experts Should or Could Evaluate Driver Error in Traffic Accidents With How
Lawyers, Experts, Judges and Jurors Typically Assess Legal Responsibility
Transportation Research BoardVehicle User Characteristics Committee Workshop #139 B
Annual International ConventionWashington D.C. - January 13, 2008
Carlton D. Fisher
20:20 Hindsight
Perfect understanding of an event after it has happened
Sarcastic term used in response to criticism of one’s decision
Its utterance implies that the critic is unfairly judging the wisdom of the decision in light of information not available when the decision was made
Hindsight Bias
Hindsight bias refers to the tendency for after accident observers to falsely believe that the once future incident was more foreseeable for those involved than actually was the case, even when warned to disregard their after-the-fact knowledge of the outcome.
Knowing that something had happened roughly doubled
the perceived odds that it was going to occur.
Hindsight accident analysis highlights the actual path that led to the tragic outcome, making the path
appear so obvious that we have trouble believing those involved
didn’t see what was coming next.
Do “Accidents” Happen in the Eyes of The Law?
Layperson’s view:
Legal view:
Any occurrence producing injury with no deliberate or intentional fault
An occurrence which is the result of an unknown cause or the result of an unusual and unexpected event happening in such an unusual manner from a known cause that it could not be reasonably expected or foreseen and that it was not the result of any negligence.
Preventability of Motor Vehicle Collisions
Defensive driving
in tension with
Legal responsibility
National Safety Council Definition of “A Preventable Collision”
One in which the driver failed to do everything that he/she reasonably could have done to avoid it
American Trucking Association’s “Preventability Rule”
Was the vehicle driven in such a way to make due allowance for the conditions of the road, weather, and traffic and to also assure that the mistakes of the other drivers did not involve the driver in a collision?
Federal Motor Carrier Safety Regulations
“Preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and
(2) that could have been averted but for an act, or failure to act, by the motor carrier, or the driver.”
29 CFR §385.3
US DOT / FHA / FMCSA
Commercial Vehicle Preventable Accident Manual “A preventable accident is one wherein the driver and/or
the carrier failed to act in a reasonably expected manner to prevent it.”
“FMCSA recognizes that not all accidents are preventable. Some . . . can be prevented by drivers, while others require changes in motor carrier practices, policies or equipment.”
www.fmcsa.dot.gov
www.fhwa.dot.gov
www.underridenetwork.org
Elements of Negligence
1.Duty Statutory Based Common Law Based Foreseeable* Risk/Benefit
2. Breach of Duty
1 + 2 = Negligence
Elements of Negligence (Cont.)
3.Causation Cause in Fact Legal Causation Proximate Cause Foreseeable**
4. Injury/Damages
1 + 2 + 3 + 4 = Legal Responsibility
Causation
“Root Cause” Crash report “Causes and Contributing Causes” Cause in fact “But For” test Legal cause Proximate cause Intervening or superseding cause Foreseeable
New York Instruction on Foreseeability
Negligence requires . . . a reasonably foreseeable danger of injury to another . . .
A person is only responsible . . . [i]f the risk of injury is reasonably foreseeable.
[I]f a reasonabl[e] person could foresee injury and acted unreasonably in light of what could be foreseen = negligence.
[I]f a reasonabl[e] person could not have foreseen injury . . . or acted reasonably in light of what could be foreseen = no negligence
The Reasonable Person
Is assumed to act with “Ordinary Care”
or“The care a reasonably careful or prudent
person would use under circumstances similar to those shown by the evidence”
The jury is not told how a reasonable person acts - that is for the jury to decide.
Justice Benjamin Cardozo’s Words on How the Conduct of the Reasonable Person Should Be Judged
“The actor’s conduct must be judged in the light of the possibilities apparent to him at the time and
not by looking backward….
‘with wisdom born of the event’”
What is Reasonable? Or What is Unreasonable Conduct?
Non-Emergency SettingCareful / Deliberate / Time to Reflect
Customary:Violation of Custom/StatutesGoing Too Fast for ConditionsBlowing a Stop Light/SignFailing to Keep a LookoutRear EnderCrossing the Center Line
What is Reasonable? Or What is Unreasonable Conduct? (Con’t)
Emergency Setting - What is an emergency? Sudden Encounter Sudden Condition Not Reasonably Anticipated Unexpected Encounter Imminent Leaves No Time for Deliberation Reasonable Apprehension “Real” Emergency “Apparent” Emergency
Emergency Situation – New York
A person faced with an emergency and who acts without opportunity to consider the alternatives is not negligent if (he,she) acts as a reasonably prudent person would act in the same emergency, even if it later appears that (he, she) did not make the safest choice or exercise the best judgment.
Duty of One in Imminent Peril – California
A person . . . confronted with [an imminent] peril . . . is neither expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments.
If at that moment [he] [she] does what appears to [him] [her] to be the best thing to do, . . .[he] [she] does all the law requires of [him] [her].
This is true, even though in the light of later events, it should appear that a different course would have been better and safer.
Sudden Emergency - Arizona
If a person, without negligence on his or her part, encountered . . . an emergency and acted reasonably to avoid harm or self or others, you may find that the person was not negligent.
This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed.
Hindsight Foresight Diagram Diagram
Case Study
Melissa Wolkomir (passenger) and
Samantha Pillizzi (passenger)
Angelica Greco (passenger)
vs.
Angela Curtis (intoxicated minor car driver)
Marshall Kent (truck driver)
Zeeb Trucking (trucking company)
Kelly’s on 41 and Patch 22 (party hosts)
Accident Date – 10/30/2004
1st Person Narrative Commentary Driving
Circumstances known to a truck driver from the point of view of a reasonably careful driver taking ordinary care . . .
1st Person Narrative Commentary Driving
Today is Saturday, October 30, 2004. It is 11:30 at night. The weather is clear and dry. I am driving a 64,000 pound 18-wheeler tractor-trailer. I am driving southbound in the right lane of US 41 at 50
mph. The speed limit is 50 mph. US 41 has two southbound and two northbound lanes
separated by a concrete barrier. Shoulder on the right and the left are as wide as the
travel lanes. I see no traffic ahead or behind me. Except for my headlights illuminating the road ahead, the
area is dark.
1st Person Narrative Commentary Driving
The road ahead curves to the right. There is an intersection coming into view around the curve. The intersection is well lit with streetlights. A side road intersects from the right. Berm and foliage along the right side of US 41 is blocking my
view of the side road. I see a car appear on the right moving slowly. It appears normal. I am still a few seconds away. I expect the car will stop and wait for me to pass as usual. The car can easily stop before reaching my lane.
1st Person Narrative Commentary Driving
The car is getting closer and I am beginning to sense that it might not stop.
Cars always stop and wait when I am that close. If it doesn’t stop, I am too close to the intersection to stop
myself. Since I can’t stop, I have to cross through the
intersection. The situation is suddenly changing from routine to
potentially dangerous. I am now only a couple seconds away. I still expect the driver will see me and stop, but I have
no way to be certain. What the driver will do next is unpredictable.
1st Person Narrative Commentary Driving
There are many possibilities. Within the next couple seconds it might: Stop abruptly to the right of my lane. Slow down or stop near the edge of my lane and
then accelerate. Roll partially into my lane and stop. Continue to roll across the road without stopping. Stop anywhere across the right or the left lanes. Accelerate quickly across both lanes. It might even stop and backup.
1st Person Narrative Commentary Driving
I can’t predict where the car will be when I arrive at the intersection.
I can brake, accelerate or maintain the same speed, steer left or right or continue to stay in my lane, but I can’t stop before reaching the intersection and crossing paths with the car.
Whatever move I make to go around the car, the car can still end up in front of me by abruptly stopping, rapidly accelerating or any other response.
The car is still to my right. I steer left to give the driver more space. Whether or not I avoid an accident depends on what the
car does next and I still can’t predict what it might do.
Zone of Uncertainty
Point of View Matters
…the driver’s point of view matters, as the situation is (not was) unfolding…
…our point of view as after-accident observers, with “the wisdom born of the event” is immaterial to the reasonableness of the driver’s conduct when the conduct occurred.
Pre-accident versus Post-accident
Point of View
Three Seconds Before Driver’s Point of View Directly Involved Before-the-Fact Information What is Happening Several Attentional Demands Routine Traffic Flow No injuries Forward Looking Forward Thinking Analog Analysis No Second Chance Precursors are Ambiguous
Hours, Days & Years After Observer’s Points of View Uninvolved Before & After-the-Fact
Information What Happened Single Attentional Focus Dangerous Emergency Fatalities and/or Serious Injuries Backward Looking Backward Thinking Digital Analysis Mentally Undo Accident and Try
Again Precursors are Clear
The Danger of Hindsight Bias
The danger of hindsight bias in analyzing the previous conduct of a person is: it is natural for people to be biased by hindsight it is caused by a deeply ingrained cognitive
process that cannot be easily eliminated or even moderated
it is not intentional or deliberate it is difficult to feel it happening people are not aware of it happening to them
The Danger of Hindsight Bias
The danger of hindsight bias in analyzing the previous conduct of a person is: (continued) it is universal, regardless of profession or intellect hindsight judgments are easier to make than
foresight judgments hindsight involves one explanation, whereas
foresight considers many possible alternatives people cannot be “debiased” merely by warning
them to guard against it
Debiasing Strategies
What can lawyers, expert witnesses, judges and juries do to mitigate or eliminate the effect of hindsight bias?
Are any of the debiasing strategies effective?Is there any empirical support for the debiasing
strategies?Does the law allow the use of any or all of these
debiasing strategies?
Debiasing Strategies in Dealing With Hindsight Bias
BifurcationEffective deposition cross-examinationMotion for summary judgmentTrial brief on hindsight biasMotion in limine – post remedial measure ruleMotion in limine – regarding post event expert
testimonyVoir dire – jury selection
Debiasing Strategies in Dealing With Hindsight Bias
Opening statementsCounterfactual questioningLimiting instruction on testimonyExpert testimony on hindsight biasClosing argumentsJury instructions
