Looking Backward, Thinking Backward: Hindsight Judgment of Human Error in Transportation Accidents

1. 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

2. Carlton D. Fisher • Partner in national law firm of Hinshaw & Culbertson LLP, headquartered in Chicago, Illinois • Fellow of the American College of Trial Lawyers • Tried to verdict more than 75 civil cases • One of the founding members of TIDA • National trial counsel for several transportation companies • Disciple of the “Let’s Eliminate Hindsight Bias” Guerrilla Movement

3. Evaluating Driver Behavior:How Hindsight Bias Can Affect and Effect Decisions about Reasonableness

4. 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 Board Vehicle User Characteristics Committee Workshop #139 B Annual International Convention Washington D.C. - January 13, 2008 Carlton D. Fisher

5. 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

6. 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.

7. Knowing that something had happened roughly doubled the perceived odds that it was going to occur.

8. 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.

9. 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. Do “Accidents” Happen in the Eyes of The Law?

10. Preventability of Motor Vehicle Collisions Defensive driving in tension with Legal responsibility

11. 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

12. 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?

13. 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

14. 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

15. Elements of Negligence 1. Duty • Statutory Based • Common Law Based • Foreseeable* • Risk/Benefit 2. Breach of Duty 1 + 2 = Negligence

16. Elements of Negligence (Cont.) 3. Causation • Cause in Fact • Legal Causation • Proximate Cause • Foreseeable** 4. Injury/Damages • 1 + 2 + 3 + 4 = Legal Responsibility

17. Causation • “Root Cause” • Crash report “Causes and Contributing Causes” • Cause in fact • “But For” test • Legal cause • Proximate cause • Intervening or superseding cause • Foreseeable

18. 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

19. 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.

20. “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’” Justice Benjamin Cardozo’s Words on How the Conduct of the Reasonable Person Should Be Judged

21. What is Reasonable? Or What is Unreasonable Conduct? • Non-Emergency Setting • Careful / Deliberate / Time to Reflect Customary: • Violation of Custom/Statutes • Going Too Fast for Conditions • Blowing a Stop Light/Sign • Failing to Keep a Lookout • Rear Ender • Crossing the Center Line

22. 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

23. 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.

24. 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.

25. 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.

26. Hindsight Foresight Diagram Diagram

27. 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

33. 1st Person Narrative Commentary Driving • Circumstances known to a truck driver from the point of view of a reasonably careful driver taking ordinary care . . .

34. 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.

35. 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.

37. 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.

38. 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.

39. 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.

44. Zone of Uncertainty

45. 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.

46. 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 Point of View Pre-accident versus Post-accident

47. 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

48. 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

49. 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?

50. Debiasing Strategies in Dealing With Hindsight Bias • Bifurcation • Effective deposition cross-examination • Motion for summary judgment • Trial brief on hindsight bias • Motion in limine – post remedial measure rule • Motion in limine – regarding post event expert testimony • Voir dire – jury selection