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Managing Dashboard Camera Systems (“Dash Cams”) from the Risk Management and Defense Counsel’s Perspective

Managing Dashboard Camera Systems (“Dash Cams”) from the Risk Management and Defense Counsel’s Perspective

I have devoted my entire legal career to defending commercial transportation companies in civil liability cases. Over the past ten years, the involvement of dash cams in my cases has gone from being very rare to now being the norm. If the current trend continues, I suspect that in a year or two almost every case involving a commercial vehicle will involve dash cams in some respect. As will be discussed in greater detail below, the involvement of dash cams in my cases doesn’t always involve a clip of an accident itself. Sometimes, it’s the absence of a dash cam clip of the accident, or even non-accident related clips from the same driver, that takes center stage. As with any new technology, attorneys (on both sides), risk managers, insurers, and judges have grappled to develop appropriate practices and procedures to best manage dash cams in the claims, pre-suit, litigation, and trial arenas. This article includes observations and recommendations based largely on my own experiences of trial and error.

Although this article is written from the risk management perspective, it should be noted that the primary purpose of a dash cam system is safety management. Risk management is merely a secondary benefit. Dash cam systems are primarily designed and adopted for safety compliance, enforcement, and accountability. Drivers are monitored, unsafe drivers and practices are identified, and corrective action is taken all with a view towards eliminating bad drivers or counseling and retraining others. As such, most dash cam clips do not involve an actual claim. Rather, most clips only involve driver safety issues that may require additional action on the part of the safety department, e.g. driver discipline, retraining, coaching, or termination. Only a small percentage of dash cam clips will involve an accident with another vehicle or some other incident that has claim potential, e.g. pedestrian strike or passenger injury.

The oldest (and best) joke in the dash cam claims business is: “the greatest thing about dash cams is that they show you exactly what happened in the accident. The worst thing about dash cams is that they show you exactly what happened in the accident.” Although funny, it’s not accurate. In reality, the greatest thing about dash cams is that they show you exactly what happened in the accident, period. Regardless of whether the clip shows the good, the bad, or the ugly, it is always better, from a risk management standpoint, to know exactly how an accident happened.

One reason that it’s always better to know exactly what happened in the accident is that it should significantly reduce defense fees and expenses. I say “should” because it still requires intelligent decision making and communication between the attorney and his clients. In any emergency response situation, civil litigation, or trial involving a commercial motor vehicle accident, most of the defense resources, at every stage of the investigation, go towards identifying, preserving, and then presenting evidence of how the accident happened. With both sides fighting to develop and prove their version of the accident, in the absence of a dash cam clip showing the accident, it’s up to the attorneys to bring to life their version of events for the trier of fact. This can be a costly endeavor. Pre-suit defense resources are focused on identifying all potential sources of evidence, gathering that evidence, and preserving the evidence, which can include activities such as emergency responses; detailed driver interviews; retention of accident reconstruction experts to download vehicle data; scene and vehicle inspections; police coordination; pursuing witnesses; obtaining 911 calls; etc. Once suit is filed, additional resources are used to continue to gather information that was not otherwise discoverable or obtainable in the absence of formal litigation in the form of written discovery exchange; depositions; additional expert consultation and analysis; and motions. At the trial stage, the question of how the accident happened can involve days of testimony, arguments, and even scene visits by the jury. However, if you have a video clip that unequivocally demonstrates the accident, it eliminates the need for investigation, discovery, and dispute as to how the accident happened. Sometimes it even eliminates the advocacy but, attorneys being attorneys, even in the face of indisputable evidence, there is often still some spin to be made.

Indeed, sometimes we have cases where the dash cam clip accurately reflects the accident but both sides still disagree as to who is at fault. However, even in those instances, with intelligent communication between counsel, the parties can agree that the dash cam clip establishes the facts as to how the accident occurredbut agree to disagree as to the significance of those facts. In those cases, my approach is to reach out to the other side early in the litigation process and suggest that we present the dash cam clip as a joint exhibit to the court as indisputable fact as to how the accident took place with a joint request for summary judgment that defers to the judge’s determination as to the significance of the facts. If the judge refuses to grant summary judgment, we take the same approach at trial with the jury. Either way, having a dash cam clip that establishes the facts of how the accident took place, even when the parties disagree as to the significance of the facts, allows the parties to cut to the chase and allows both sides to bypass the usual discovery, experts, fact witnesses, etc., which is invariably the most costly aspect of litigation. This translates into a massive reduction in investigation and defense resources at every level of the claim.

Some clients, reluctant to employ dash cam systems, bemoan the prospect of a catastrophic accident being captured on camera, proving the negligence of our driver, and perhaps providing evidence of an “aggravating circumstance”, e.g. fatigue, distracted or reckless driving, excessive speed, intoxication, or cell phone use. They don’t want to pay for a system that is going to capture evidence that will later feature as plaintiff’s evidentiary “crown jewel” at trial. That’s a reasonable concern but, in my experience, you would always rather know, and you would always rather be the first to know. Even in the absence of dash cam footage, an experienced plaintiffs’ attorney will usually identify and develop any aggravating circumstances that may exist during the discovery period once litigation commences. At that point, usually two to three years down the road, when you are elbow deep into litigation expenses, it’s much harder to manage the exposure. I have had many horrible dash cam cases revealing aggravating circumstances, several involving fatalities, that we have managed to resolve pre-suit, some within three months of the date of loss (which is extraordinarily fast in the claims world) because we had exclusive knowledge of the dash cam footage. The plaintiffs’ attorneys in those claims never knew, and will never know, that we had their evidentiary crown jewel. Had they proceeded with litigation and discovery, they would have learned that the case was far beyond a simple case of negligence and had aggravating circumstances. In those cases, our exclusive knowledge of the dash cam clips helped us to avoid the increase in both cost and exposure that was inevitable with the passage of time.

On the other hand, we often get cases where a dash cam clip completely exonerates our clients in an accident claim; the veritable “slam dunk” as we like to call it. I have had numerous cases involving fatalities in which, because of the existence of dash cam clips, my clients ended up paying nothing when, in the absence of those clips, I know they would have ended up paying at least $500K-$1M. I even had one client who engaged the Lytx DriveCam system, fleet wide, only twenty days before a fatal accident where the driver struck some disabled vehicles on a dark portion of the D.C. beltway in the very early hours of the morning. It was one of those accidents where many witnesses had many different versions of events and the conspicuity of the disabled vehicles was the factual gravamen. We were so confident about the actions of our driver based on the dash cam footage that we made the strategic decision to voluntarily disclose the clip to the investigating Maryland State Police Crash Team within 48 hours of the accident. The MSP used the clip, and its data, as part of their accident reconstruction and adopted it into their Detailed Crash Investigation Report, which completely exonerated my client. Suffice it to say, that client was absolutely thrilled about its decision to invest in the system, which paid for itself for the next twenty years and more with just that one clip.

In addition to our “slam dunk” clips exonerating us in terms of liability, dash cam systems can also be beneficial for damages exoneration. Sometimes, we have clips that confirm that we were, in fact, negligent. Take, for example, a simple rear end collision. The clip will confirm our liability, but a rear end collision scenario is one where liability would inevitably have been adverse the existence of the clip notwithstanding. As such, the clip hasn’t necessarily hurt us in terms of liability. However, the clip may still serve to assist us in terms of damages. I recall one case with a rear end collision scenario captured on a dash cam. We were so confident that the severity of the collision, as depicted on the clip, was so minor that no jury could have believed that it resulted in the three-level spinal surgery and $150K in medical expenses claimed by the plaintiff. In the jury trial in Baltimore City Circuit Court, instead of using medical experts to attack the causal relationship between the accident and the ensuing surgery, we relied entirely on the dash cam footage which, with audio, reflected nothing more than a minor bump. We didn’t even bother to attack the plaintiff’s Johns Hopkins University medical experts; we just played the clip in opening, played it during trial, and played it again during closing. Even though we had admitted liability, the jury returned a verdict in favor of the plaintiff in the amount of $0.00 after deliberating for only fifteen minutes on the sole remaining issue of damages. In that case, even though the clip confirmed our liability, it protected us from any exposure. Similarly, I had a jury trial in D.C. Superior Court where the dash cam confirmed a rear end collision where the plaintiff was claiming $500K in damages. We retained an expert in the field of bio-mechanics who was able to use the G-force data from the dash cam clip, superimposed on the damage to the vehicles involved, to calculate the actual forces that would have been generated on the plaintiff’s body within his vehicle. The expert was able to demonstrate to the jury’s satisfaction that the forces were nowhere near sufficient enough to generate any anatomical change in the plaintiff’s body and could not have caused the disk herniations that were present on plaintiff’s post-accident MRIs. Without the G-force data from the dash cam clip, this wouldn’t have been possible. These are just a few of my experiences in which dash cam clips proved to be beneficial to my case even where the clips affirmatively showed that my clients were liable for the accident.

Despite what may appear as my advocacy for indiscriminate installation of dash cams in all commercial vehicles, effective risk management does not end with installing dash cams and calling it a day. Rather, once a dash cam system is in place, managing the system properly and strategically is critical to effectively utilize the system for risk management purposes. The timing and circumstances surrounding disclosure of the existence and content of dash cam clips will vary from case to case. When it comes to the “slam dunk” clips specifically, the trick, from our perspective, is to manage the timing and manner of their disclosure. As a general rule, I advise my clients not to mention, and certainly not to voluntarily share, accident clips with claimants, or their attorneys, during the claims phase. Unless the existence of dash cam footage is disclosed by the adjuster, claimants and their attorneys are not likely to spontaneously enquire about them. The primary reason that we don’t want to automatically disclose the “slam dunk” clips is that we might want to generate a credibility issue in addition to the substantive issues. By credibility issue, I mean that we can get the claimant to commit to a version of the accident, either by recorded statement, allegations in the complaint, description of the accident in written discovery responses, or (best of all) under oath at deposition, that is inconsistent with the dash cam footage. However, sometimes, the “slam dunk” clip is so clearly indisputable that we want to disclose it early on because we are confident it will persuade the claimants and their counsel to drop the claim and walk away. In those cases, many of my clients will send us the clips and have us invite opposing counsel to our office where they can review the clip; we don’t give them a copy of the clip and we don’t allow them to record it but we allow them the opportunity to review the clip and see for themselves that their case is dead in the water.

Every accident clip tells its own story and presents its own unique issues and you must exercise your best judgment on how to best manage the timing and manner of its disclosure. Ultimately, dash cam footage of an accident is always going to be discoverable during the litigation process, but it may behoove you to disclose it before then if you think you can avoid litigation altogether.

Sometimes, investigating officers may demand that you produce the dash cam footage at the accident scene or in the days following up on a serious accident investigation. Just like with a claimant in the claims phase, how to manage an officer’s demand for a dash cam clip is a judgment call to be made based on the unique facts and circumstances attendant to each accident and dash cam clip. That said, I have always taken the position that we are not obligated to produce dash cam clips to the police without a subpoena. We often elect to do so voluntarily, but I always make it clear that we are not obliged to do so. I have yet to encounter any legal authority that imposes a duty on my clients to surrender dash cam footage to the police without requiring a subpoena. If we opt to disclose it without insisting on a subpoena, I always do so subject to a non-disclosure agreement that states that they will agree to keep the footage confidential and to use it exclusively for the purposes of their investigation.

Another important consideration in terms of disclosing dash cam footage, either to police in conjunction with their investigation or plaintiff’s counsel in relation to litigation, is the format in which to produce the clip. Some formats contain more information than others. In addition to footage of the accident, the file in its native format may include additional information such as vehicle speed, direction, engine RPM, braking/accelerating, and G-force, which may not be beneficial to your case. I would also note that, in my experience, the speed indications on dash cam clips, which are GPS based, are invariably inaccurate and often inconsistent with the more reliable ECM download, by + or – 5 mph. If the request is to produce the dash cam “footage” then produce the dash cam footage and only the dash cam footage, not the additional data points. Every dash cam system I have ever encountered allows you to convert the clip from its native format into a format that can easily be viewed on Windows media player or some other traditional media viewer.

A word on spoliation of evidence. Retention, in addition to disclosure, of dash cam clips is another important consideration. If you are going to employ a dash cam system it is imperative that you set up a proper protocol as to who will have access to the web portal, who will receive and manage clips, and a retention policy that addresses clip retention and deletion. There is nothing worse than having a dash cam system but, when suit is filed three years down the line, nobody seems to be able to locate the accident clip. That is almost guaranteed to generate a spoliation instruction, likely one regarding negligent spoliation but maybe one regarding intentional. Either one is the death knell for any liability case.

The approach to management and retention should depend on whether the clip is merely a driver safety clip (the majority of clips) or a clip involving an accident or that otherwise has claim potential (the minority). With respect to the former category, I advise my clients that there is no need to retain those clips beyond the brief period required for the safety department to use the clip to take whatever appropriate driver discipline or coaching action may be required. The reason that I advise against extended retention of non-claim related, driver safety clips is that you don’t want to unnecessarily create a visual record of all the poor driving events that your driver has generated during the entire course of his employment. Most commercial transportation liability lawsuits, in addition to claims of simple negligence for the accident, involve allegations of negligent retention and negligent entrustment directly against the company. Essentially, the plaintiff argues that the company should have fired the driver based on his poor record and bad driving history prior to the subject accident. The last thing we want to do is create a permanent library of prior bad driving events for plaintiff’s counsel to play at trial in support of the negligent retention claim, like some sort of NFL highlight reel of worst plays. Once the safety clip has been used for its intended driver coaching or discipline purpose, and no litigation is anticipated at that time, there is no justification for further retention. That is not to say that plaintiffs will not attempt to cry “spoliation” in future litigation based on failure to retain these clips but, if a reasonable, purpose driven retention policy is established and enforced, those claims should not gain any traction. There is a rational cost benefit analysis associated with unlimited data retention and it’s tenuous for plaintiffs to argue spoliation because a company has failed to retain every bit of pre-accident data ever generated.

With respect to retention of clips in the latter category, the accident clips, I advise my clients to develop a safety protocol that involves clip retention for at least the period of twelve months after the expiration of the applicable statute of limitations. All accident clips should immediately be shared with the risk management/claims department and/or the appropriate insurer or claims administrator to ensure preservation and reduce the risk of spoliation.

One of the biggest debates amongst current dash cam users is whether to have two-way, i.e. inward and outward facing cameras on tractor trailers. Obviously, we need the outward facing cameras but many in the industry question the benefit of inward facing cameras as they usually capture some negative behavior on the part of the driver. I have had many accidents where the outward facing view confirmed that we were not at fault for the accident only to find the inward facing view showing our driver was texting, fatigued, or otherwise distracted at the time of the accident. A good plaintiffs’ attorney could turn what should be a “slam dunk” clip into an indictment of the company and driver’s safety practices. When it comes to buses, mobility, or other passenger vehicles this is an easy decision for me – always opt for inward facing. When it comes to tractor-trailers where there shouldn’t be any passengers, I tend to agree that inward facing is a liability more often than a benefit from a risk management perspective. My only caution is that if you elect to have outward facing views only, I would employ a system that only has an outward facing lens and do not use an inward facing lens cap (as many do). Those that go with the inward lens cap can expect to face tough questioning and argument, from plaintiffs’ counsel at deposition and/or trial, about their decision to affirmatively block the inward facing view.

As I stated at the outset of this article, the use of dash cams in the commercial transportation industry is becoming increasingly common and I suspect that trend will continue well into the future. In addition to increased use, the future of dash cams includes the concept of “predictive analytics” which is an additional safety tool that uses various algorithms to predict which of your drivers are most likely to be involved in a serious accident based on their driving behaviors. It’s kind of like Tom Cruise in the film Minority Report. This may sound great from a safety management perspective, but it does present some serious concerns for us in the context of future litigation. Imagine for a second that your dash cam vendor informs you, via the predictive analytics tool, that Billy Bob is your worst driver and that he is likely to be involved in a serious accident based on the applicable algorithms. Billy Bob, however, is a ten-year veteran driver who has a clean MVR and has never been involved in an accident. On paper, Billy Bob is one of your best drivers. The warnings of the dash cam vendor, and its fancy algorithms, notwithstanding, you absolutely do not proceed to terminate Billy Bob. One week later Billy Bob is involved in a triple fatality accident where he was at fault. Imagine now, you are the safety manager responding to questions from plaintiff’s counsel at trial in front of a jury and you must explain why you signed up for this safety management tool, which unequivocally warned you to fire Billy Bob, but you opted to overrule that warning and exercise your own (non-algorithmic) judgment. I can say that I have not actually experienced this particular scenario in my own practice, but I can certainly see it playing out in theory.

I am not employed by any particular dash cam company and I neither endorse nor oppose any one of them. In terms of their efficacy as safety management tools, I don’t have an informed opinion on the matter. In terms of their efficacy as risk management tools, I strongly endorse them. This article is intended for academic discussion only and should not be taken as a substitute for formal legal advice or counsel. Each client, accident, and claim have their own unique characteristics and specific legal counsel should be sought and provided accordingly.

By Andrew T. Stephenson of Franklin & Prokopik

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