Determining and Proving Fault
If the accident was not your fault, or only partly your fault, the other party or parties may owe you money. Any money lost by you is called 'damages' and they must be compensated by the negligent party. There are four elements which determine who is negligent:
If a driver does anything which jeopardizes the safety of others, we say that he/she has breached that duty. They have failed to live up to their responsibility. This includes more than simply obeying the written laws of the road. If you travel 55mph on a road with a 55mph speed limit when it is foggy or ice covered, you have breached your duty to drive safely if you cause an accident. You have not exercised reasonable care given the poor road conditions. Again, the key test is did the driver "exercise reasonable care" while operating the motor vehicle.
The negligence of one of the drivers must be the proximate cause of the damages. Proximate cause is the cause which, in the natural sequence of events, produces the injury. It is not a proximate cause if there is an intervening factor in the sequence of events leading to the accident. For example, if Car A is barreling down the road in a fast and haphazard manner toward oncoming Car B, and a tree falls in the path between them and Car B crashes into it, this is an intervening cause of the accident. It is also not proximate cause if the accident would have occurred anyway. The "but for" test is applied to determine proximate cause. Stated simply, the accident would not have happened "but for" some negligent act or omission which is the cause.
There must be damages for the claimant to be entitled to recovery. Damages include any type of loss. Property damage to another vehicle and personal injuries to the occupants would be the most common types of damages in automobile accidents, but there are also incidental damages as well, such as lost wages or travel for medical treatment. Another driver may be angry if you cut them off, but unless you hit them and there are damages, this element of negligence is not met.
In order to understand how the four elements of negligence work, think again about the icy or foggy road. If you drive down that road going 55mph on a foggy or snowy night, and do not cause injury or damage to another, you might get a ticket for driving recklessly under the conditions, but you are not guilty of negligence because you have breached your duty to no one. There is always the duty, but there is no breach, no proximate cause of any accident, and no damages.
All states have numerous laws against speeding, driving over the center line, passing on the right, etc. If a driver breaks one of these laws and causes and accident, they are guilty of statutory negligence. They generally will receive a ticket for the violation, and they are negligent as well.
There are different types of negligence laws from state to state. These laws developed so that it is possible to apportion fault because often both drivers have been negligent in some way. In a contributory negligence state, if Driver A is almost entirely at fault, but the jury finds that Driver B was the least bit negligent and contributed to the accident, Driver B recovers nothing. In a comparative negligence jurisdiction, if Driver A is determined to be 10% at fault and Driver B is 90% at fault, then Driver A can recover with a 10% reduction in his/her award. This is true as long as Driver A is less than 50% at fault. Some jurisdictions also have pure comparative negligence laws. These laws eliminate the requirement that the victim be less than 50% negligent to recover. Thus, Driver A could be found to be 90% at fault and still recover 10% of his/her damages.
The varying types of negligence laws only go into effect when an actual lawsuit is filed and a case goes to trial. When attorneys and insurance adjustors negotiate, they generally speak in terms of one party being liable to the other. However they do sometimes borrow from these laws in determining settlement amounts. For example, if Driver A drops a cigarette and hits Driver B due to inattention while trying to pick it up, an adjustor may try to cut Driver B's settlement amount if Driver B were speeding.
Because the amount of settlement depends so much on liability, it is important to document all aspects of the accident. Detailed notes, photographs of the automobiles and scene, and contact with witnesses all aid in helping to determine liability. Most people do not know exactly what is needed. Moreover, without legal representation, the insurance adjustor can contact the victim directly about details of the accident.
- Duty
- Breach of Duty
- Causation
- Damages
If a driver does anything which jeopardizes the safety of others, we say that he/she has breached that duty. They have failed to live up to their responsibility. This includes more than simply obeying the written laws of the road. If you travel 55mph on a road with a 55mph speed limit when it is foggy or ice covered, you have breached your duty to drive safely if you cause an accident. You have not exercised reasonable care given the poor road conditions. Again, the key test is did the driver "exercise reasonable care" while operating the motor vehicle.
The negligence of one of the drivers must be the proximate cause of the damages. Proximate cause is the cause which, in the natural sequence of events, produces the injury. It is not a proximate cause if there is an intervening factor in the sequence of events leading to the accident. For example, if Car A is barreling down the road in a fast and haphazard manner toward oncoming Car B, and a tree falls in the path between them and Car B crashes into it, this is an intervening cause of the accident. It is also not proximate cause if the accident would have occurred anyway. The "but for" test is applied to determine proximate cause. Stated simply, the accident would not have happened "but for" some negligent act or omission which is the cause.
There must be damages for the claimant to be entitled to recovery. Damages include any type of loss. Property damage to another vehicle and personal injuries to the occupants would be the most common types of damages in automobile accidents, but there are also incidental damages as well, such as lost wages or travel for medical treatment. Another driver may be angry if you cut them off, but unless you hit them and there are damages, this element of negligence is not met.
In order to understand how the four elements of negligence work, think again about the icy or foggy road. If you drive down that road going 55mph on a foggy or snowy night, and do not cause injury or damage to another, you might get a ticket for driving recklessly under the conditions, but you are not guilty of negligence because you have breached your duty to no one. There is always the duty, but there is no breach, no proximate cause of any accident, and no damages.
All states have numerous laws against speeding, driving over the center line, passing on the right, etc. If a driver breaks one of these laws and causes and accident, they are guilty of statutory negligence. They generally will receive a ticket for the violation, and they are negligent as well.
There are different types of negligence laws from state to state. These laws developed so that it is possible to apportion fault because often both drivers have been negligent in some way. In a contributory negligence state, if Driver A is almost entirely at fault, but the jury finds that Driver B was the least bit negligent and contributed to the accident, Driver B recovers nothing. In a comparative negligence jurisdiction, if Driver A is determined to be 10% at fault and Driver B is 90% at fault, then Driver A can recover with a 10% reduction in his/her award. This is true as long as Driver A is less than 50% at fault. Some jurisdictions also have pure comparative negligence laws. These laws eliminate the requirement that the victim be less than 50% negligent to recover. Thus, Driver A could be found to be 90% at fault and still recover 10% of his/her damages.
The varying types of negligence laws only go into effect when an actual lawsuit is filed and a case goes to trial. When attorneys and insurance adjustors negotiate, they generally speak in terms of one party being liable to the other. However they do sometimes borrow from these laws in determining settlement amounts. For example, if Driver A drops a cigarette and hits Driver B due to inattention while trying to pick it up, an adjustor may try to cut Driver B's settlement amount if Driver B were speeding.
Because the amount of settlement depends so much on liability, it is important to document all aspects of the accident. Detailed notes, photographs of the automobiles and scene, and contact with witnesses all aid in helping to determine liability. Most people do not know exactly what is needed. Moreover, without legal representation, the insurance adjustor can contact the victim directly about details of the accident.
LARRY L. BEARD - MANAGING ATTORNEY
larry@beardlawfirm.com
NO CHARGE FOR INITIAL CONSULTATION