Fall Newsletter 2006

BLACK BOXES: THEY’RE NOT JUST FOR AIRPLANES ANYMORE

A client’s family contacts you about a collision, which took the life of their loved one.  As any competent lawyer would do, you obtain all of the information about the collision you can, take statements from witnesses (if any), and reconstruct the events surrounding the collision. There are no skid marks and the decedent is unable to tell his or her side of the story. When all is said and done, you have conflicting information about the vehicle’s speed and other pertinent information about the cars themselves.  What can you do?

Event Data Recorders (EDRs), similar to "black boxes" used in commercial airliners, record data about what a car is doing in the moments just before and after a crash. They do not record the voices of occupants, but they do record things like speed, steering wheel movement, how hard the brakes are being pressed and the actual movement of the car itself.  Originally, automobile manufacturers used EDR information to improve safety and evaluate performance.

According to a recent CNN article, about 64 percent of model year 2005 cars were equipped with EDRs.  Some manufacturers already include information about the EDR in the owner’s manual, but not all.  A regulation passed by NHTSA will require car makers to inform customers when their car contains an EDR.

Clearly, the EDR can affect your civil case.  It can confirm your client’s actions and speed to show lack of contributory negligence or causation.  However, your opponent’s EDR is just as telling.  Therefore, discovery of EDR material, and competent downloading, is crucial.  I like to think of the event data recorder as the DNA of the vehicle.  The recorder allows the reader to view the inner workings of the vehicle like a scientist views DNA results for evidentiary purposes. As with DNA sampling, EDR information has privacy implications, as well.  A person’s guilt or innocence of a crime can be determined by DNA, but only if the samples are analyzed properly.  This holds true with EDR material too.  EDRs require certain software to download, and different manufacturers have different types of EDRs. 

The EDR information can not only be used for civil cases either.  The Canadian Safety Council reports that in 2001, a speeding Montreal driver smashed into a car, killing a young man. Without skid marks there was no way to calculate the car’s speed before impact, and only the suspect’s testimony about his own actions. The EDR showed that the vehicle was traveling about 97 mph (in a 30 mph zone), that four seconds before impact the driver floored the gas pedal, and that just before impact he took his foot off the gas but did not brake. Despite the EDR evidence, the driver was acquitted of criminal negligence causing death, and convicted instead on the lesser charge of dangerous driving causing death.

The new rule also requires EDRs to collect a uniform set of data. From a legal point of view, having access to uniform data will help investigators to recreate crashes and determine causes.  More-uniform data will also make it easier to develop systems so that, in cars equipped with automatic 911 emergency notification, data about the crash can also be passed along to paramedics and ambulance crews.

EDR information is another tool available for lawyers to determine what every lawyer wants to know: The Truth. 

J. Stuart McAtee