Case Update: Evidence of Internally Collected Accident Data

Internal reports that aggregate accident data may be admissible against a defendant notwithstanding an objection that those prior accidents were not substantially similar.

Earlier this month the Appeals Court affirmed the amended judgment in Dubuque v. Cumberland Farms, Inc., 93 Mass.App.Ct. 332 (2018), which was a wrongful death case that arose from an automobile striking and killing Kimmy Dubuque while she was walking through the entrance of a convenience store. After trial, the jury found Cumberland Farms negligent and awarded $32 million in compensatory damages to the plaintiff. The jury also found that Cumberland Farms was grossly negligent, or had engaged in willful, wanton, or reckless conduct, but only awarded the plaintiff an additional $10 in punitive damages.

Cumberland Farms subsequently moved for judgment notwithstanding the verdict, new trial, and remittitur. The trial judge concluded that the “compensatory damages award was disproportionately high compared to the evidence, and the product of ‘some degree’ of passion, partiality, or prejudice.” The trial judge “ordered a new trial on the issue of damages unless the plaintiff accepted a reduced compensatory damages award of $20 million.” Both parties appealed.

The Appeals Court did not create any new law in the course of affirming the amended judgment, but its discussion of one of Cumberland Farms’ point of error highlights a difficulty that many defendants encounter in litigation.

Cumberland Farms claimed reversible error due to the “admission of an internal report regarding 485 prior car strikes at its other stores without first subjecting each of the prior accidents to a ‘rigorous’ review to ensure that they were substantially similar to the Dubuque accident.” The trial court admitted this internal report with a limiting instruction, which stated, in part:

“You may consider, if you wish, evidence pertaining to prior car strikes at Cumberland Farms stores as notice to Cumberland Farms of those car strikes and not as evidence of negligence and/or gross negligence on the part of Cumberland Farms in those prior car strikes. You may only consider such evidence as proof of negligence or gross negligence in this case if you first find that the earlier car strikes were substantially similar to the incident at issue in this case.”

The Appeals Court did not find any error with respect to the trial court’s limiting instruction.

In its analysis the Appeals Court provided a lengthy discussion of the background surrounding the internal report, which I will not attempt to summarize in full, but is available here. Its discussion focused on Cumberland Farms’ prior knowledge of car strikes at its stores and its use of bollards at its premises. Suffice it to say that the internal report at issue was not the only notice that Cumberland Farms had of car strikes at its stores. The Appeals Court pointed to prior claims and settlements, actions by the director of risk management, and a bollard program. The Appeals Court noted that the admission of this evidence was a matter of the trial judge’s discretion and that he did not abuse that discretion.

It is hard to say what kind of impact the internal report concerning 485 prior car strikes had on a finding of liability given the totality of the evidence that the Appeals Court discussed. The general lesson of this case is that a substantial similarity argument may not work, and pressing a trial court to compare dozens or hundreds of prior incidents to the accident that gave rise to litigation is not persuasive when the issue comes to foreseeability. The Appeals Court’s decision, however, does emphasize the difficulties that may businesses may encounter in litigation as a result of conducting the ordinary operation, such as risk management concerning potential hazards and mandatory reporting of accidents and/or data that impact particular industries (especially those that are heavily regulated).