BILL OF PARTICULARS
PROFESSOR HUTTER ON
EVIDENCE
Accident Reports and
the Business Records
Hearsay Exception:
The Johnson v. Lutz
Judically Created
Requirement
By Professor Michael J. Hutter, Jr.
Police accident reports and other
accident reports, whether prepared by
government employees of an agency
or by employees of a business entity,
often contain information abont an
accident recorded by the makers of the
report, who has no personal
knowledge of the information
recorded, much less whether it is
. accurate or not. The maker of the
record is merely recording information
supplied by another person. Where the
record is offered to prove the truth of
the information recorded, a hearsay
issue is, of course, present. Are the
reports, or the entry therein of such
recorded information, admissible
under the business records exception
to the hearsay rule as set forth in CPLR
4518(a)? This article will provide an
answer to when, if ever, such recorded
information is in fact admissible under
that exception.
CPLR 4518(a) states, in pertinent
part, that a judge may admit into
evidence any writing or record, which
the judge finds "was made in the
regular course of any business and that
it was the regular course of the
business to make it, at the time of the
act, transaction, occurrence or event,
or within a reasonable time
thereafter.... " It will be assumed for
purposes of this article that the
exception's
three
statutory
requirements have been satisfied.
These three. requirements are that the
information was recorded as an entry
in the report as a routine practice; that
the entry was made at or near the time
or within a reasonable time thereafter
of the time the information was
12
obtained; and the person making the
entry had a duty or obligation to record
the information.l Notably, it is these
requirements which provide thc
"probability
of [the
report's]
trustworthiness, thereby justifYing the
admission of the record into evidence
without the safeguards ordinarily
provided by confrontation and crossexamination.2 In that regard, since the
entry is routine, the regularity and
continuity of making such entries
develop habits of precision; the
temporal requirement assures that the
recollection of the information
recorded is fairly accurate; and the
existence of the recorder's duty or
obligation to record the information
ensures that it is to the recorder's own
interest and thus the employer's
interest to accurately record the
information. 3
In addition to these explicit
statutory requirements, the Court of
Appeals has read into CPLR 4518(a)
an additional requirement that
involves an initial concem the need to
show that the source of the information
is a person with personal knowledge
thereof, and that such person is part of
a regular business practice in reporting
and recording the information. 4 This
requirement was first recognized in the
landmark decision of Johnson v. Lutz'
and
developed
III
subsequent
An understanding of
decisions.
Johnson v. Lutz is crucial to answering
the question posed and attempted to be
answered in this article.
Johnson v. Lutz was an action to
recover damages for the wrongful
death of the plain tilT's intestate, who
was killed when h is motorcycle
collided with the dclcndan[s' truck. At
the trial, conflicting testimony was
presented regarding how (-he accident
occurred.
Plainti fT offered into
evidence a police officer's report of
the accident under Civil Practice Ad §
374-a, the predeccssor "I' (,I'LR
4518(a)6 As the police o !'lien Itad lIot
witnessed the accident, his repor( was
based on statement.s to hilll hy third
persons who were presl'nt Ht Hit,
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accident scene when he arrived. There
W!IS 110 showing that any of these third
persons saw the accident and stated to
him what they observed, or stated what
some other persons had told them. A
unanimous Court, in an opinion
authored by Judge Hubbs, held that the
trial court correctly excluded the
report. Emphasizing that the purpose
of the statute was to permit a business
record to be received in evidence
without the necessity of calling all the
persons who had a part in making it,
the Court held that the statute did not
"voluntary
hearsay
extend
to
statements made by third parties not
engaged in the business or under any
In the
duty in relation thereto"7
Court's view, such statements did not
have the reliability of statements
"made in the ordinary course of
business·'.8
In essence, Johnson v. Lutz
provides that the admissibility of the
information recorded in a business
record under the business records
statutory exception to the hearsay rule
turns upon, in addition to the
requirements of the statute itself, a
of
"personal
consideration
knowledge", i.e., whether the report's
maker had personal knowledge of the
information recorded, and if not,
whether the maker's source of the
information recorded had personal
knowledge thereof and reported to the
maker as part of a regular business
routine. This reading of Johnson v.
Lutz is fully supportable by the Court's
emphasis that the police officer recordmaker was not present at the time of
the accident and that he based his
recording of information about the
accident on "hearsay statements of
third persons", who were not engaged
in the maker's business or under any
duty in relation thereto" Of note, the
Court's recognition of this "personal
knowledge" requirement was severely
criticized by Wigmore. [0 However,
this requirement is surely consistent
with, if not mandated by, the
underlying theory of the business
records exception as otherwise there
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could be the recording of unreliable
information. I I
In answering the question posed,
consistent with Johnson v. Lutz, the
careful attorney, when attempting to
offer into evidence certain recorded
information in an accident report,
otherwise admissible as a business
record, or attempting to preclude its
admissibility, should initially inquire
as to the source of the information
recorded. Several steps of analysis are
then present once that determination is
made. Indeed, if the source is not
identified, the information as recorded
will be excluded. 12
This
personal
know ledge
requirement will obviously be present
when the person recording the
information acquired that information
from his or her own observations
and!or investigations and made such
recording pursuant to the routine of the
business in which the person is
engaged. This is, as Johnson v. Lutz
contemplated, an entry "in the ordinary
course of business".13 Examples of
the application of this rule in instances
involving accident reports include the
police officer's recording of the
officer's personal observations of the
accident or the accident scene, i.e.,
presence and location of skid marks,
location of vehicles, presence of
obstructions, weather conditions, 14
provided a proper foundation is laid,15
and the participant's recording of how
the accident occurred,16 provided the
participant was under a duty to make
such recording and such was routinely
made. 17
Where the person recording the
infonnation in the accident report does
not have personal knowledge thereof,
the focus will then be upon the person
or
persons
who
transmiUed
information to the recorder.
or
the
In that
regard, where the maker
the record
does not have the requisite rer~onal
knowledge, it must be shown that the
maker received the information from
one with personal knowledge and who
is "engaged in tht: business or under
any duty in relatioll tlwrdo". IX In other
Alternatively, this duty "requirement"
could be satisfied where someone
within the business has verified the
accuracy of the information provided
by the "outsider" in accordance with a
business, or, in the absence of co- routine practice to do S026
On the other hand, the requisite
employee status, because of a
relationship under which the person duty will be absent where the person
with knowledge routinely reports to transmitting the information was a
the maker as a result of that bystander or witness to the accident, as
relationship,19 the Johnson v. Lutz in Johnson v. Lutz.27 Likewise, it will
requirement is satisfied. As expressed be absent where the person was a
in Johnson v. Lutz, it is such duty participant in the accident and later
which provides an assurance of was a party to a lawsuit arising out of
the accident,2' or was a close relative
trustworthiness. 2o
It is to be noted that where, as in of the participant involved in the
Johnson v. Lutz, the maker received accident.'9 Notably, in none of these
information transmitted by one who is cases were the persons who
under no business to do so, the transmitted the information to the
information so recorded is not maker of the record doing so as part of
admissible under the business record a regular business routine in which
exception. The fact that the maker of they were participants. The fact that
the record was under a duty to record they may have had a civic duty to aid
such infonnation as transmitted is not the police or the investigation was of
controlling. The maker'S duty ensures no evidentiary significance)O
Where the person transmitting the
only the accuracy of the maker's entry,
i.e., helshe writes down exactly what information had no duty to do so,
was transmitted. It is no guarantee at Johnson v. Lutz plainly holds that the
all of the accuracy of the information mere entry of the information in the
record does not make it admissible
supplied by that person 21
Focusing on the status of the under the business records exception.
person with personal knowledge However, Johnson v. Lutz did not state
regarding an accident who transmits that such information would never be
information regarding that accident to admissible under that exception. In
the maker of the accident report, the that regard, its reference to the
requisite Johnson v. Lutz duty has been inadmissibility of "hearsay statements"
found to be present where the person which are transmitted by outsiders,
was a fellow police officer. 22 Indeed, suggested that if the person's statement
Johnson v. Lutz expressly contemplates transmitting the information to the
such a situation.2J
Furthermore, maker of the record was independently
several layers of transmission i.e., admissible under another hearsay
officer one observes the accident, exception, then its recording would be
reports it as part of his regular routine admissible under the business records
to officer two, who transmits the exception. 31
Subsequent decisions picked up on
information as part of a regular routine
to employee three who then prepares this suggestion 32 and it is now well
the record may be present without established that where the statement by
running afoul of Johnson v. Lutz.'4 an outsider is recorded in accordance
The business duty has also been found with a regular business routine, and is
to be present where the person admissible under another hearsay
transmitting the information, although exception, then the business record
not a police officer, was under a exception and that other exception
statutory duty to provide the combine to provide a basis for the
transmitted
illformatioll. 25 admissibility of that statement." The
words, where the person with personal
knowledge reports to the maker as part
of a regular business routine in which
they are participants, whether because
they are employed by the same
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YORK STATE TRIAL LJ\\XrYFRS INSTITUTE
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admissibility of the statement under this approach is
supported by the presumption of reliability that attaches to
statements that are admissible under another exception to
the hearsay rule. Of course, the maker's recording of the
statement is covered by the business records exception
itself, thereby providing reliability thereto.
This Johnson v. Lutz/hearsay approach has been
followed in accident report cases. Thus where an accident
report regarding an automobile accident includes a
damaging statement by one of the drivers who later
becomes a party to a lawsuit arising out of the accident, the
statement will be admissible under the business record
exception as an admission. 34
The fact that the police
officer had no personal knowledge of the accuracy of the
statement is irrelevant as the officer had a duty to record
this type of statement. Similarly, where an accident report
contains a statement by a witness to an accident, and it was
recorded in accordance with routine procedure, such
statement may be admissible under the business record
exception as an excited utterance. 35
Other recognized
hearsay exceptions may be relied upon, provided their
requirements are satisfied. 36
It should also be noted that where the recorded
information in the accident report is being used for a
purpose other than the truth of the infonnation, i.e., that it
was made, and that the making of the statement is relevant,
such entry will be admissible under the business record
exception, provided, of course, that its entry was routinely
made. 37 Admissibility in these circumstances does not
transgress Johnson v. Lutz.
To summarize and answer the question raised, where
information recorded in a business record is sought to be
admitted for its truth under the business records exception,
and the recorded information does not represent the
personal knowledge of the maker of the record, the
information will not be admissible under the business
records exception unless it is established that the maker of
the record received the information from a person with
personal knowledge thereof and that person reported to the
maker of the record as part of a regular business routine in
which they are both participants; or, the recorded
information in itself meets the requirements of some other
hearsay exception. As recognized in this article, whether
any of these rules can be satisfied in a given case will
depend upon the trial lawyer initially asking who was the
source of the information recorded in the accident report.
Once the answer to that question is ascertained, the
application of the rules in a given case can be determined.
Michael J. Huller is a professor of lawai Albany Law
School and special counsel 10 Powers & Sanlola, LLP. He is a
frequent eLE lecturer and occasionally prepares amicus briefs
for NYSTLA.
14
Notes
I. See, People ~ Kennedy, 68 NY2d 569, 579 - 580, 510
NYS2d 853, 859 - 860, 503 NE2d 501, 507 - 508 (1986).
2. Williams ~ Alexander, 309 NY 283,286 - 287, 129 NE
2d 417, 419 (1955).
3. People v. Kennedy, 68 NY2d at 579, 510 NYS2d at 859,
503 NE2d at 507, supra; Wi!liams ~ Alexander, 309 NY at
286 - 287, 129 NE2d at 419, supra.
4. See, Toll v. State, 32 AD2d 47, 49, 299 NYS 2d 589, 591
(3d Dept. 1969) (Cooke, J.); Richardson, Evidence (9th ed)
§299. CPLR 4518(a) provides only that "lack of personal
knowledge ... shall not affect (the record's) admissibility".
5. 253 NY 124 (1930).
6. CPLR 4518(a) restated, with minor language changes,
the provisions of section 374-a.
7. Johnson v. Lutz, 253 NY 124, 128, 170 NE 517, 518
(1930).
8. Ibid, quoting Mayor a/New York City v. Second Ave. R.
Co., 102 NY 572,581,7 NE 905, 909 (1886).
9. Johnson v. Lutz, 253 NY at 128, 170 NE at 518, supra.
10. See, 5 Wigmore, Evidence (Chadbourn rev. 1974)
§ 1561(a) at p. 490, §1561(b) at p. 507.
II. See, Martin, Capra and Rossi, NY Evidence (2d ed) §
8.3.3, p. 769; Graham, Federal Evidence §803.6 at p. 350.
12. See, Gagliano v. Vaccaro, 97 AD2d 430, 467 NYS2d
396 (2d Dept. 1983); Avram v. Haddad, 88 AD2d 942, 451
NYS2d 178 (2d Dept. 1982).
13. See, Johnson v. Lutz, 253 NY at 128, 170 NE at 518,
supra; see, Toll v. Slate, 32 AD2d at 49,299 NYS2d at 591,
supra; Alexander, Practice Commentaries to CPLR 4518,
Book 7B, McKinney's Con. Laws of NY, C4518:3,p. !O8.
14. See, Exantus v. Town a/Ossining, 266 AD2d 502, 699
NYS2d 94 (2d Dept. 1999) (diagram of accident scene);
Bracca v. MABSTOA, Il7 AD2d 273, 502 NYS2d 158 (Ist
Dept. 1986) (presence of slush); D 'Arienzo v. Manderville,
106 AD2d 686, 484 NYS2d 171 (3d Dept. 1984) (location
of vehicles after collision) ; Klein v. Benrubi, 60 AD2d 548,
400 NYS2d 93 (I st Dept. 1977)(officer was eyewitness);
Lee v. DeCarr, 36 AD2d 554, 317 NYS2d 226 (3d Dept.
1971) (position of vehicles, presence of skid marks, paths
traversed by vehicles); compare, Quaglia v. Tomaserri, 99
AD2d 487, 470 NYS2d 427 (2d Dept. 1984) (no proof that
diagram in accident report was based on' personal
observations of the relevant physical facts).
15. See, Carrier v. Spagna, 101 AD2d 141, 147, 475
NYS2J 7, 12 (I st Dept. 1984) (report was inadmissible
NEW YORK STATE TRIAL LAWYERS INSTITUTI'.
BILL OF PARTICULARS
because it could not be determined whether it was based
upon eyewitness observations of the police officer making
the report or hearsay); Matter of Utica Mutual Ins. Co., 97
AD2d 422,467 NYS2d 259 (2d Dept. 1983) (entries were
ambiguous as to presence of personal knowledge);
Campbell v. MABSTOA, 81 AD2d 529, 438 NYS2d 87 (1st
Dept. 1981) (diagram of accident scene was inadmissible as
vehicle had been moved prior to police officer's arrival and
he made no independent investigation).
16. See, Galanek v. New York City Transit Auth., 53 AD2d
586, 385 NYS2d 62 (1st Dept. 1976) (municipal employee
required to make report).
17. See, Martin, Capra and Rossi, at § 8.3.3 at pp. 769-770,
supra.
18. Johnson v Lutz, 253 NY at 128, 170 NE at 518, supra.
19. The language "or any duty in relation" to the business
suggests that employment of the transmitter and maker by
the same employer is not necessarily required.
20. Johnson v. Lutz, 253 NY at 128, 170 NE at 518, supra.
21. See, Matter of Leon RR, 48 NY2d 117, 122-123,421
NYS2d 863, 866 - 867, 397 NE2d 374, 377 (l979).
22. See, Lindsay v. Academy Broadway Corp., 198 AD2d
641,642,603 NYS2d 622, 623 (3d Dept. 1993); Trbovich
v. Burke, 234 App. Div. 384, 255 NYS 100 (4th Dept.
1932); Francies v. County, 36 Misc.2d 1062, 234 NYS2d
362 (Sup. Ct. 1962).
23. Johnson v. Lutz, 253 NY at 128,170 NE at 518, supra.
24. See, 2 McCormick, Evidence (4th ed) §290; compare,
Stevens v. Kirby, 86 AD2d 391, 395, 450 NYS2d 607,61 I
(4th Dept. 1982) (Deputy sheriff to State Liquor Authority
would be appropriate, but deputy received the transmitted
information from outsiders).
25. See, Lopez v Ford Motor Credit Co., 238 AD2d 211,
656 NYS 2d 257(lst Dept. 1997) (police accident report
recorded information received from motorist regarding
registration of his vehicle, which information was required
by statute to be given).
See, Martin, "Hearsay Exception and Sources of
Infonnation for Business Records", NYU, 10112/01, p.3,
col. 1, at p.5; McCormick, supra at §290; see also,
Campbell v. MABSTOA, RI AD2d 529, 438 NYS2d 87, 29
(I st Dept. 1981).
26.
27. See, Kelly v Diesel ('ol1sfl: Div. or Carl A. Morse, Inc.,
35 NY2d I, 8,358 NYS2d 685, 690, 315 NE2d 751,
754(1974) (defendant's superintendent at construction site
gave statement [0 municipal elevator inspector); Peetor v.
County of Sujjillk, 2:;<) AD2d 605, 606, 686 NYS2d 789,
790 (2d Dept. 1<)<)<)); UUOII!!." State, 263 AD2d 745, 746
n.l, 695 NYS2d 142,144 n. 1(3rd Dept. 1999); Sansevere
v. UPS, 181 AD2d 521,581 NYS2d 315 (lst Dept. 1992).
28. See, Cover v: Cohen, 61 NY2d 261, 274, 473 NYS2d
378,461 NE2d 864, 870 (l984); Hayes v. State, 40 NY2d
1044, 392 NYS2d 282, 360 NE2d 959 (l976), affd. on op
below, 50 AD2d 693, 376 NYS2d 647 (3d Dept. 1975);
Mooney v. Osowiecky, 235 AD2d 603, 651 NYS2d 713 (3d
Dept. 1997); Casey v. Tierno, 127 AD2d 727, 512 NYS2d
123 (2d Dept. 1987).
29. See, Rivera v. City of New York, 293 AD2d 383, 741
NYS2d 30 (1st Dept. 2002); Abbe v. Board of Educ., 186
AD2d 102,587 NYS2d 707 (2d Dept. 1992).
30. See, Barker and Alexander, Evidence in New York State
and Federal Courts (2001 ed) §8:41, at p. 879.
31. See, Johnson v. Lutz, 253 NY at 128, 170 NE at 518,
supra.
32. See, Kelly v Wasserman, 5 NY2d 425,185 NYS2d 538,
158 NE2d 241 (1959); Zavlich v. Thompkins Sq. Holding
Co., 10 AD2d 492, 200 NYS2d 550 (1st Dept. 1960).
However, such distinction was not expressly noted. See,
Barker & Alexander, supra, p.880; Prince, Evidence, 16
Syr. L. Rev. 459, 459 - 460 (l965).
33. See, Malter of Leon RR, 48 NY2d at 122, 421 NYS2d
at 866 - 867, 397 NE2d at 377, supra, Cover v. Cohen, 61
NY2d at 274, 473 NYS2d at 384,461 NE2d at 273, supra,
Toll v. State, 32 AD2d at 49, 299 NYS2d at 591, supra;
Martin, Capra and Rossi, supra, at § 8.3.3, p. 770.
34. See, Ferrara v. Poranski, 99 AD2d 904, 450 NYS2d
596 (2d Dept. 1982); Dempsey v. National Car Rental
System, Inc., 87 AD2d 835, 449 NYS2d 270 (2d Dept.
1982); Chemical Leamon Tank Lines, 21 AD2d 556, 251
NYS2d 240 (3d Dept. 1964). This approach was seemingly
followed in Clarke v. New York City Transit Auth. 174
AD2d 268, 580 NYS2d 221 (1st Dept. 1992), but, as has
been noted, erroneously. See, Martin, Evidence, NYLJ,
6/12/92, p. 3, col. I.
35. See, Tafl v. New York City Transit Auth., 193 AD2d 503,
597 NYS2d 374 (1st Dept. 1993). Of note in this case, the
statement was made to an employee who relayed it pursuant
to routine procedure to the maker of the report.
36. See, Cover v. Cohen, 61 NY2d at 274, 473 NYS2d at
384,461 NE2d at 870, supra, Kelly v. Diesel Constr. Div. of
CarlA. Morse, 35 NY2d at 8, 358 NYS2d at 690,315 NE2d
at 754 - 755, supra, Secor v. Kohl, 67 AD2d 358, 415
NYS2d 434 (2d Dept. 1979).
37. See, Splawn v. Lexta} Corp., 197
NYS2d 41 (1st Dept. 1993) (notice
Donohue v. Losito, 141 AD2d 691, 529
Dept. 1988) (impeachment).
NEW YORK STATE TRiI\1. I.AWYP.RS INSTITUTE
AD2d 479, 603
of a problem);
NYS2d 813 (2d
,.
15