The crash is over. The injuries are serious. Which driver is at fault?
The used to be the logic behind the investigation of motor vehicle crashes. After all, driver misconduct is the primary cause of most crashes. Today, however, the analysis of causation and fault should be more extensive in order to seek the full economic recovery a seriously injured victim deserves.
THE WIDENED INVESTIGATION
In a case involving serious injury and minimal insurance coverage, the investigation of a crash widens to include the drivers, the vehicles, the roadway, and the environment. It considers the characteristics and history of each component in order to get a more complete picture of all the potential crash causes.
The driver of Vehicle 1, for example, may have been speeding and weaving in the mile he traveled before the collision. Had this happened to him before? Was his boss aware of this tendency? Did he suffer from a diabetic condition? Did his physician fail to instruct him in proper diabetic monitoring? In other words, are there causes of this collision that led to an unsafe driver being allowed behind the wheel? Can those causes be held financially accountable for the serious injury that resulted? In many instances, the answer is yes.
Similarly, the motor vehicles themselves deserve scrutiny. Defective vehicle design, for example, has been known not only to cause the original collision but often to worsen or enhance the injuries that occur. The recall campaigns of automobile manufacturers illustrate the fact that defective vehicles are on the highway in the millions and that their involvement in crashes is a frequent occurrence.
The defect need not be as dramatic as the fuel tank design that causes post-collision fires. It can be as small as the computer chip that misinterprets pressure on the accelerator (yes, they have computer chips everywhere). Or, it can be the seatbelt that fails to restrain the passenger. And even though it may be an item purchases separately by a parent, did the child restraint seat fail to prevent injury to its precious occupant? The careful evaluation and scientific analysis of the vehicles is a powerful means of widening the circle of causation when the economic recovery is otherwise likely to be inadequate.
Another obvious element of a motor vehicle crash is the highway itself. Was the highway safe for the traffic it was intended to carry? Was the signage appropriate to inform and guide the motorist? The road surface and the shoulder of the highway are also elements that have been known to cause crashed. For example, the should of the road is intended to provide a recovery zone for a driver who has, for any number of reasons briefly left the lanes of travel. When the shoulder is poorly maintained the recovery zone is eliminated and a road hazard substituted in its place. Records of prior accidents at or near the same location may point dramatically to the contribution of the unsafe condition of the highway to crashes.
These comments are intended to be illustrations of the broader investigation and analysis that can be accomplished when the financial recovery for a catastrophic or serious injury would otherwise be inadequate. Experienced eyes and ears should commence these efforts as quickly as possible after the motor vehicle crash in order to have the greatest chance of success and to preserve the important evidence.
THE BASIS FOR JUST COMPENSATION IN INJURY LAW
Who should bear the burden of an injury caused by the misconduct of another person or company? Should it be the victim? Should it be society through charity or governmental programs? Or, should it be the wrongdoer whose misconduct was responsible for the injury and its economic consequences?
The “tort” law seeks to provide a remedy for the harm carelessly, recklessly, or intentionally inflicted on victims. It permits the victim to pursue a civil action in our court system in an effort to receive compensation for the injury caused by the wrongdoer. In such an action the victim must allege and prove that a legally recognized wrong (or “tort”) occurred, that the named defendant in the lawsuit was the wrongdoer (or “tortfeasor”), and that the victim has experienced, and will likely experience in the future, certain injuries or “damages”.
It is the availability of the remedy and the access to the court system that makes it possible for injured victims to seek negotiated settlements of their claims. Without the right to file a lawsuit for just compensation all victims are mere beggars asking for whatever kindness society or the wrongdoer choose to demonstrate. The “tort” law makes the wrongdoers and their insurance companies responsible for the harm that has been done.
The most common “tort” is an act of negligence, which is a failure to act as a reasonable person would act under the circumstances. Negligence is the usual grounds for a lawsuit arising out of injuries received in an automobile collision. The victim commonly alleges that the defendant driver acted negligently and carelessly in failing to stop at a stop sign or in exceeding the speed limit or in making a left turn in the face of oncoming traffic. The same “tort” is also used as a basis for legal responsibility when a victim is injured by slipping on a foreign substance in a grocery store. In fact, it is the usual basis for a medical malpractice claim as well as almost all claims against professionals although the proof of the misconduct of a professional requires special evidence and witnesses.
In order to determine the amount of compensation that is appropriate and just a whole body of law has developed under the general title of “damages”. Basically, our court system allows the recovery of only those items of loss that have already been incurred or are reasonably certain to occur in the future. Speculative damages are not allowed. The most common elements of damages are medical expenses, lost income, pain and suffering, and the loss of the ability to lead and enjoy a normal life.
The complexity of the thousands of reported cases dealing with “damages” demonstrates the myriad circumstances experienced by each victim and the determined efforts of victims to seek full compensation for the true losses and injuries experienced. If a victim believes that a particular loss or injury was caused by the wrongdoer it is likely that the court system has considered such a claim in the past. The reported cases provide guidance for the victim and the victim’s advocate in seeking the fullest economic recovery.
THE CONTINGENCY FEE
One unique aspect of the field of injury law is the existence of the contingency fee arrangement. This arrangement permits the victim to employ the services of a competent attorney, one capable of pursuing the appropriate legal theories and devoting the necessary financial resources. At a time when the victim cannot normally afford to incur hourly legal charges or to engage expensive investigators or experts, the contingency fee arrangement assures that the victim’s rights can be protected and pursued.
The Supreme Court of Florida and the Florida Bar encourage the use of contingency fee contracts while, at the same time, regulating their terms. The same is true in most other states.
The victim’s lawyer traditionally agrees to charge a fee for services only if the claim is successful and only in an agreed percentage of the economic recovery actually made. When the wrongdoer is usually well represented by professional adjusters, investigators, experts, and defense attorneys, the victim benefits tremendously from the ability to retain a skilled advocate on a contingency fee basis.
The effort to achieve a settlement or award of just compensation as a result of a motor vehicle crash is usually better directed by an experience trial attorney. He generally understands the legal basis for potential claims and the investigative steps necessary to determine their merits. He usually achieves the attention and respect of the wrongdoer and the insurance company to a higher degree than an unrepresented victim.
An initial consultation with a qualified civil trail attorney is normally free. It is a step that victims with significant injuries should take.