TORTS, RAILROAD & EVIDENCE / Accident report consisting of train engineer’s statement made after an accident not admissible as a business record despite fact that such record were a railroad routine procedure – It was not “typical of entries made systematically or as a matter of routine to record events or occurrences” within the business operation.

Estate of William Ivy v. Joyce Ivy, 2012 WL 6131208 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Cited to Palmer v. Hoffman, 318 U.S. 109 (1943). Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Here the court held that an accident report did not have the status of a “business record” so as to enable the report itself to be admitted into evidence at trial despite its “hearsay” status.

Mississippi Court of Appeals noted Palmer v. Hoffman for application in a different factual context than that railroad engineer’s post-accident statement.

This is a significant point on the difference between carriers’ record keeping and true “business records” under the law of evidence.

A railroad’s filing of Form FRA F 6180.55a relating to death, injury or occupational illness, or a pilot’s writing out an “ASAP” report after a flight incident are very much part of a disciplined routine.

The “business records” exception to the hearsay rule of evidence is based on the routine record keeping being part of the “regular course of business” of the record keeper. Such regularity is deemed to ensure trustworthiness that other hearsay statement supposedly lack.

The rule of Palmer v. Hoffman indicates that an accident is not part of a carrier’s “regular course of business”. Carrier managements should act accordingly in preserving evidence – including maintaining access to witnesses after an accident – and their lawyers need to be discerning about what information will fall on what side of the line regarding accident records.