Each day, numerous people are killed and severely injured in motor vehicle accidents somewhere in the U.S. and serious personal injuries may result from the accident. This article will explain the duties of care imposed upon every automobile driver, breaches of those duties that justify filing a lawsuit, how damages are awarded for injuries suffered, and defenses to automobile accident claims against you.
Negligence and Duty of CareNegligence can be defined as a "careless or willful act that results in the injury of another person." If you are considering a lawsuit to recover damages for a personal injury under negligence, you will need to show:
When operating a motor vehicle on public roads, it is the driver's responsibility to exercise reasonable due care. Drivers are required to maintain adequate control of their vehicle, drive at a reasonable speed and be alert for things around them that could cause an accident. Personal injury auto lawsuits generally focus on whether or not the responsible driver did not exercise reasonable due care while driving. Did the driver create an unreasonable risk of creating an accident? For example, was that driver talking on a cell phone or trying to read a map while driving? It is every driver’s duty to anticipate risk or harm to others while operation a motor vehicle on public roadways.
- the other driver was driving recklessly or without due care; and
- your injuries from the accident were the direct result of the other driver’s negligence
What the Judge or Jury Will be ConsideringIn creating a case, evidence should be collected to serve as proof of how the accused driver acted in a careless manner to support your case. In collecting evidence, a police report may contain pictures of skid marks on the road showing that only the other driver was in motion, security cameras may have been present that recorded the incident or there may have been witnesses to the accident that could support your case and it would be helpful to have their names and numbers.
You will also need to demonstrate how your injuries are a direct result of the accused driver acting in a careless manner. For example, you may have been stopped at a red light and the other driver rear ended you, causing you to sustain a whiplash. You were in no way responsible for that accident. You were (i) obeying the law and standing still and (ii) the other driver was acting carelessly by not observing the red light and stopping in a safe and timely manner. This resulted in (iii) your being struck in the rear of your car and causing you to be pushing forward and pulled backwards by your seatbelt. This caused you whiplash injuries. As a result of that injury, (iv) your car suffered from $X in damages, you suffered $Y in costs that were not covered by insurance to recover from the injury, $Z in lost time at work in order to recover for those injuries, and an additional amount in pain and suffering as a direct result of those injuries. You should keep diligent records of all your bills.
Damages and AwardsDamage awards that are won in a personal injury lawsuit can include medical payments and expenses, personal pain and suffering, payments for lost wages, rehabilitation expenses, property damages and other types damages and awards.
Defenses to Claims Against YouIf you are the one being sued, you may have a few defenses in your favor. Was the injured party partly responsible for the accident? Claiming contribution to the accident by the injured party is a way to reduce the amount of damages they are suing for or in some cases can even release you from having to pay anything.
Contributory NegligenceThis can be claimed as a complete defense to an accident in some states, which basically states that an injured party cannot collect damages if it can be proven the injured party caused him or herself to be at risk of harm in the first place. For example, the injured party was a pedestrian who was crossing the street against a red light, and the result was they were hit by an oncoming car driven by someone who wasn't paying attention to the road and talking on a cell phone. In the states that operate under contributory negligence laws, even though there was an injury, if the injured party contributed to the accident they cannot recover damages for the injury because of their role in contributing to causing the accident. This result can be harsh so most states have taken the following different approaches.
Comparative Negligencelaws are used in other states. In these states, the injured party can recover a certain percentage of damages, even if they put themselves in harms way. As in the above example for instance, the pedestrian was crossing against the red light but the oncoming car was responsible to use caution and be on the lookout for pedestrians in the crosswalk, even though they had the green light. The judge or jury will determine what percentage of recovery of damages is allowed. There are different variations of this rule:
- Pure Comparative Negligence: The judge or jury will assign a percentage or negligence to each party and recovery will be based upon that party's lack of fault. In the above example, if the pedestrian was said to be 85% at fault and the driver of the car 15%, recovery for the pedestrian will be limited to the 15% of injuries not the fault of the pedestrian but the fault of the driver. If the pedestrian suffered $100 of damages, recovery could only be a maximum of $15 or 15% of the $100 damages suffered. This rule is currently followed in thirteen (13) states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota, and Washington)
- Modified Comparative Negligence: The judge or jury will assign a percentage of negligence to each party and recovery will be allowed only if they aren't over a certain percentage of fault. The thought is that if you contributed so much to the cause of an accident, you should not be permitted to recover. Thirty three (33) states use this method but have two different levels.
- 50% fault rule: You can only recover for damages in an accident if your fault in causing the accident is less than fifty percent (50%). The thought is that if you were equally at fault or more at fault than the other party, you should not be able to recover. So if the pedestrian in our above accident was 49% at fault and the driver of the car 51% at fault for causing the accident, recovery would be allowed by the pedestrian against the car driver for up to 51% of the pedestrian's injuries. The driver of the car could not sue the pedestrian because the driver's fault percentage was 50% or greater. Twelve (12) states follow this rule, being Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia.
- 51% fault rule: You can only recover for damages in an accident if your fault in causing the accident is less than fifty one percent (51%). The thought is that if you were equally at fault or less at fault than the other party, you should be able to recover - but not if you were more at fault than the other party. So if the pedestrian in our above accident was 50% at fault and the driver of the car 50% at fault for causing the accident, recovery would be allowed by either party who could recover up to 50% of their damages. If the pedestrian in our above accident was 49% at fault and the driver of the car 51% at fault for causing the accident, recovery would be allowed by the pedestrian against the car driver for up to 51% of the pedestrian's injuries. The driver of the car could not sue the pedestrian because the driver's 51% fault was above the 50% fault allowed under this rule. The twenty one (21) states that follow this rule are Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming.
Assumption of RiskA person assumes the risk of damages when a person is aware that an injury might be the result of an action and agrees not to hold anyone else responsible. If a pedestrian is running across a busy intersection against traffic hoping to make a bus before it leaves the bus stop on the other side, the pedestrian is assuming the risk that a serious injury may occur by such hasty actions.
Emergency DoctrineThis defense can be used if you were faced with an emergency situation but failed to act because you could not make a fast enough decision on what to do. For example, what if your brakes failed and you did not think fast enough to use the emergency brake before you hit another car? The Emergency Doctrine might be available in your defense in this kind of a situation.
Intervening CausesThis is a valid defense to present if there was another "intervening" accident that happened, which might have changed the natural progression of events. An intervening cause can lower or even eliminate the liability of the first party that caused damage. For example, if you rear ended someone very slightly and you were exchanging insurance information on the side of the road. Another car came along and hit the party you had just rear-ended and completely destroyed the car, caused it to be replaced. You can defend yourself from damages by claiming intervening causes were involved.
Statute of LimitationsA defendant can be raise a statute of limitations as a defense that can bar a personal injury case from being heard. Each state limits the amount of time that cases of different types can be brought, including those for injuries suffered in car accidents, malpractice, and others. The amount of time varies from state to state, for example, in New York it is three years from the date of the injury. This is done to prevent stale cases from being brought, which are those cases not prosecuted in a timely manner and which will probably include witnesses with fading memories about the incident.
As you can see, there are many factors in assessing your options when being involved in a car accident. If you are involved in an automobile accident and are either filing a suit for damages or defending yourself in a lawsuit, you should seek counsel and representation of a qualified personal injury attorney to protect your rights under the law.
- Accident & Injury Law:
- Car Accident
Car Accident Car Accident Law, Duties, Damages & Defenses
By Michael Wechsler |
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