Arguments to Make if CSA (Comprehensive Safety Analysis) Data is Attempted to Prove Liabilty

IN a recent presentation to the Federal Motor Carrier Safety Administration, the American Trucking Association submitted several concerns about the Comprehensive Safety Analysis (CSA), which has been in effect since 2010 to improve the efficiency and effectiveness of the FMCSA’s compliance program.

We all know that scoring of Behavioral Analysis Safety Improvement Categories (BASICS) include:

Unsafe Driving
Fatigued Driving
Driver Fitness
Controlled Dangerous Substances
Vehicle Maintenance
Cargo Related Issues, and
Crash Indicators

Based on these scores, it is assumed that the FMCSA can determine the likelihood of future accidents. I have a problem with this assumption. It is a well established rule of evidence that past conduct should NOT be used to prove present liability. In my mind this is kind of like allowing “character evidence” to prove that person has a propensity to commit a wrong. No matter what I think, this is the law and we have to deal with it.

In October of 2012, the ATA listed the following as concerns about the application of CSA that must be used to argue against the CSA scores being used against a driver or his employer:

• Carriers’ scores in three of CSA’s seven measurement categories (43 percent of the system) do not effectively identify future crash risk.

• FMCSA only has sufficient violation data to assign a percentile rank (in at least one category) to 12 percent of active carriers.

• And as a recent analysis by the American Transportation Research Institute highlighted: perceived safety risk is heavily dependent on the amount of data available on each motor carrier and it is wrong to conclude that carriers with insufficient data to be scored are safer than those that have reported data.

The ATA has a brief “white paper” submitted by Rob Abbot, Vice President for Safety Policy, to the FMCSA requesting a more balanced perspective. Obviously, you can request the paper from the ATA, but I have it on file in case you are unable to get a timely response from the ATA. These are good arguments against use of CSA scores in a liability.

Send me an e-mail to perkins@perkinsfirm.com and I will send you a copy. Some of the balanced information suggested by the ATA include:

FMCSA statement: Past crash involvement, regardless of fault, is a strong predictor of future crash involvement.

A more balanced perspective suggested by the ATA:

FMCSA carefully uses the term “involvement” in this context. This does not mean these carriers are more likely to be at fault in a future crash, but rather that they operate in an environment (e.g., urban setting), where there is elevated exposure and they are more likely to be involved in a future crash. Increased crash involvement is often a function of exposure, not necessarily a reflection of safety problems. For instance, urban carriers are more likely to be involved in crashes than rural carriers – but not because they are any less “safe.”

FMCSA’s own safety rating process acknowledges this fact and applies a higher acceptable

threshold for crash rates to carriers operating in urban environments.

In other words, instead of using “statistical data” to prove liability or a propensity to liability, let’s just take each case independently. Isn’t this what we were taught in law school? What are your thoughts? Please make some comments here.