For every motor vehicle collision, someone is at fault. Whether the collision involves a single vehicle, two vehicles or 10 vehicles, with limited exception, someone’s actions triggered the collision. Responding police officers are often the first to make the determination of who caused the collision. These officers then commonly issue a citation for a summary offense to the suspected at-fault driver on the scene or shortly thereafter.
Proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days of the commission of the alleged offense, 42 Pa.C.S.A. Section 5553(a). Consequently, by the time an injured motorist seeks representation by a plaintiffs attorney, the summary offense proceedings may have already been completed.
Among common summary offenses, drivers are frequently cited for violation of 75 PA.C.S. Section 3309 (failure to stay in lane/unsafe movement from lane), 75 PA.C.S. Section 3714 (careless driving), 75 PA.C.S. Section 3361 (driving at safe speed) and 75 PA.C.S. Section 3362 (exceeding speed limit).
An officer’s determination of fault is presumably based upon initial observations at the scene and witness statements. Yet, in many collisions, the officer’s determination is based upon an incomplete set of data that would be available with further investigation (such as a download of the vehicle’s electronic control module or results of the total station laser scan). Without such information, ultimately the decision to issue a citation or the person the citation is issued to, may be wrong.
When your personal injury client has been cited for a summary traffic offense, what should you do? If the client already pleaded guilty to the citation, the decision has been made for you. But, if you are retained before any action has been taken, you have a strategic decision to make—to plead or not to plead.
There is no uniform, correct answer. As with most of our decisions, the answer depends on the circumstances. In an unscientific, casual poll of plaintiffs attorney colleagues, about half were in the habit of instructing a client to plead guilty and thereafter proceeding with the civil matter. The other half routinely contest clients’ citations.
To allow a client to plead guilty to an offense like careless driving sounds counter intuitive, considering that in the civil case you must establish that the other driver was negligent and your client bears no fault. Not necessarily. A guilty plea to a summary offense such as careless driving is generally not admissible in a civil matter.
In Pennsylvania, it is a longstanding tenant of law that evidence of a conviction for a traffic violation or a minor misdemeanor is inadmissible in a civil action arising out of the same events, as in Loughner v. Schmelzer, 218 A.2d 768 (Pa. 1966). This inadmissibility is similarly prescribed by statute. 42 Pa.C.S. Section 6142(a) provides: “A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.” Evidence that a traffic citation was not given to a driver is also inadmissible. Simpson v. Robinson, 361 A.2d 387, 388 (Pa. Super. 1976). “Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror’s determination of fault on part of the respective drivers.” The evidence would be prejudicial. In considering whether to allow a client to enter a guilty plea, the plaintiffs attorney must be mindful of exactly what offenses have been charged. Depending upon the gravity of the offense and potential penalties, or whether the plea is a “necessary operative fact” of a more serious charge, evidence of charges may be admissible in a subsequent civil case under certain circumstances, as in Vetter v. Miller, 157 A.3d 943, 950, (Pa. Super. 2017); Folino v. Young, 568 A.2d 171 (Pa. 1990).
In Vetter v. Miller, the plaintiff in a motor vehicle case pleaded guilty to driving under the influence (a misdemeanor), and driving with a suspended license (a summary violation). An additional charge for harassment was nolle prossed. On appeal, the plaintiff contended that the lower court erred in the civil action by admitting evidence of the plaintiff’s guilty pleas and the harassment charge. The Superior Court looked to Hurtt v. Stirone, 206 A.2d 624 (Pa. 1965). “In so deciding that judgments in criminal cases may be admissible to establish the facts in a subsequent civil case arising from the same incident, we recognize a valid existing distinction in cases involving the record of conviction of relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s ‘trial technique …” The Hurtt decision was extended in Cromley v. Gardner, 385 A.2d 433 (Pa. Super. 1978) with the recognition that all motor vehicle code violations are not of equal gravity based on the penalty’s potential risk to liberty and property. A small fine and costs imposed for a guilty plea to certain summary offenses are indicative of a minor matter. A plea to such an offense would fall within the realm of inadmissibility. However, the fine of $500 with the potential of three years of imprisonment as imposed for driving under the influence is not a minor matter. “It is inconceivable that one would acknowledge guilt of this offense if he believed he was innocent.” In as much, a guilty plea to an offense which carries significant penalties, could be deemed admissible as an admission against interest. The Superior Court in Vetter determined that the lower court did err by admitting evidence of a guilty plea to driving with a suspended license and the evidence of the nolle prossed harassment charge. However, the plaintiff’s guilty plea for driving under the influence was declared admissible.
Once you are reasonably confident that your client’s citation is for a minor offense and a plea thereto would be inadmissible, pleading guilty and moving on with the civil case may appear to be the obvious course of action. However, there is evidentiary downside and other considerations provided that the charge and plea will later be inadmissible.
First, the police officer may latch onto his or her determination of fault and that determination may color his or her testimony against your client. Second, if your client is the plaintiff, a guilty plea conceding fault may cause the other driver’s insurance carrier to assign little or no value to the case. These early insurance reserve decisions are difficult to reverse later.
The third and perhaps most significant consideration is that pleading guilty waives the opportunity to procure information which could benefit your client’s civil action. Adversarial insurance adjusters will rarely if ever provide you with their insured driver’s statement prior to litigation. Contesting your client’s summary offense charges essentially allows to you to take the statement of the other driver/defendant-to-be.
After your client’s not guilty plea is submitted, a hearing on the citation will be scheduled in the magisterial district court for the county in which the citation was issued. Hearings are scheduled soon after the submission of the plea, but can be continued for weeks and even months to give your client time to recover from physical injuries (which also gives you time to prepare).
At the hearing, the citing police officer and any witnesses—including the other driver who will become the defendant in the civil action—must appear to substantiate the offense charged. Presuming you are willing to represent your personal injury client in their capacity as a defendant at the summary hearing, you now have the opportunity to take the testimony of individuals that might otherwise be off-limits to you until a later date.
At this point so soon after a collision, the defendant-to-be has not yet been appointed an attorney by the insurance carrier. The defendant has not yet been prepared to provide testimony. The defendant may not have even reviewed the police report. You get a free pass to interrogate this defendant-to-be before they have been named as a defendant and have dug their heels into a self-serving narrative. You similarly get the first opportunity to interrogate the responding and/or citing police officer and witnesses to the collision, with no objections from opposing counsel. You can and should schedule your own stenographer to memorialize the testimony that is elicited at the hearing. That testimony will likely be the first sworn, recorded accounts of the collision. It can be used at later depositions and at the civil trial. It is necessary to arrange a court reporter to make a transcript of the hearing.
Many times, the police officer makes a rushed judgement without having spoken to all witnesses. With proper probing, you may be able to force the officer to admit the limitations of his investigation and perhaps testify uncertainly about fault or the cause of the collision.
Sometimes, the police use accident reconstruction to issue citations. The full police accident reconstruction is not often provided with the initial police report. The citation hearing gives you an opportunity to see that report before you file suit and subpoena it. While measurements taken by police at the scene are often reliable and useful evidence, police accident reconstructions are often wrong or inaccurate. You can poke holes in the investigation or the reconstruction analysis and provide a basis for your own reconstruction if the case warrants it.
It may turn out that the officer and other driver offer an unassailable account of the collision and your client may be convicted of the offense. In Loughner v. Schmelzer, the Pennsylvania Supreme Court held that like a guilty plea, “evidence of the conviction of a traffic violation or of small misdemeanors is not admissible in a civil suit for damages arising out of the same traffic violation or lesser misdemeanors.” Nonetheless, if the contest yields such an unfavorable resulting conviction, it may suggest to you that the liability claim will also fail before a jury. It may warrant the decision to discontinue your pursuit of the liability claim at an earlier stage than you would have otherwise reached such a conclusion. On the other hand, the testimony of the defendant to-be, who has not yet been prepared by counsel, may make what was previously a questionable liability case into a strong liability case.
James R. Ronca is a shareholder at Anapol Weiss. He has represented people injured in complex car and truck collisions and construction accidents for 40 years. He also co-authored the most widely referenced book on motor vehicle and automobile personal injury practice in Pennsylvania. Contact him firstname.lastname@example.org.
Ryan D. Hurd is an associate at the firm where he represents individuals who have suffered catastrophic personal injuries from motor vehicle/tractor-trailer collisions, workplace accidents, and defective products. Contact him at email@example.com.