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Part VI: Types and Examples of Common Accidents

Automobile Accidents

Automobile accidents are the leading cause of death for Americans under the age of 34. Each year, there are about 6.5 million automobile accidents resulting in nearly 40,000 deaths and 3.5 million injuries. Age is a factor in many auto accidents. Drivers between the ages of 16 and 20 and those over 70 have a much higher percentage of accidents than people in other age ranges.

COMMON CAUSES OF MOTOR VEHICLE ACCIDENTS

The most common type of auto accident is the rear-end collision. For instance, a car stops at a stop sign, a red light, or in rush-hour traffic, and the vehicle behind it crashes into the back of the first car. The errant driver often simply wasn’t paying sufficient attention to the road in front of him; by the time he realized that the car in front had stopped, it was too late to avoid an accident. Abruptly reducing your speed to look at the aftermath of an accident (“rubbernecking”), causing the vehicle behind you to crash into your car, is another common cause of rear-end collisions.

If you were stopped at a stop sign or red light when your vehicle got rear-ended, in 99.99 percent of the cases the driver who hit you from behind will be legally responsible; the law requires that you drive a safe distance behind other cars so you won’t run into them if you have to stop suddenly. The one major exception to this rule is when a driver suddenly pulls in front of you and brakes hard, causing you to rear-end his vehicle. This type of case is used by criminals to defraud insurance companies out of money, because they know how hard it is to disprove liability in rear-end collisions. They have a network of seedy doctors who treat the “injured victim” until their bill reaches an astronomical amount, and then members of the group, which may be fronted by an unethical lawyer, negotiate with the insurance company for large settlements. This kind of bogus claim drives everybody’s insurance premiums up and is more common—and lucrative—than you may think.

The failure of a car turning left at an intersection to yield the right-of-way to oncoming traffic is the second most common cause of traffic accidents. A driver making a left turn must yield the right-of-way to oncoming traffic. The left-turning driver may not be paying attention and may not see an oncoming vehicle. Or she may see the oncoming vehicle but think (erroneously) that she has sufficient time to make a left turn. The driver may misjudge the speed and distance of the oncoming vehicle. The left-turning driver may speed up, thinking that she can make the turn before the other vehicle reaches the intersection. Sometimes the oncoming car is exceeding the posted speed limit by 10, 15, or more miles per hour, making it harder to judge how much time one has to make a safe left turn.

Another leading cause of automobile accidents is driver distraction or inattentiveness; the driver simply isn’t paying sufficient attention to the road in front of him, the flow of traffic, and/or the condition of the road. The driver may be distracted by changing the radio station or volume, picking up a dropped object, eating, grooming in the car, talking to passengers, tending to a small child, dealing with a pet, or engaging in a number of other activities that takes his eyes off the road. It only takes a few seconds of not watching the road and the cars in front of you for an accident to happen.

In California, the use of hand-held cell phones is banned when driving. Still, research shows that people who use handsfree cell phones are at a much higher risk of getting into an accident than drivers who don’t use cell phones. The problem is that the driver’s attention is focused on the telephone conversation she is having, rather than on the road in front of her and the surrounding traffic.

Alcohol is involved in approximately 40 percent of automobile accident cases. The legal limit of blood alcohol content (BAC) for criminal purposes is .08. But a person with a BAC of .05 or .06 (or even lower) may be sufficiently impaired to affect his judgment and reflexes, resulting in a traffic accident. Because automobile injury cases are tried in the civil courts, it is not necessary to prove that the at-fault driver met the criminal definition of impairment to hold him legally responsible (“liable”) for the monetary damages incurred by the victim, such as medical expenses, lost wages, and damages for pain and suffering.

Aggressive driving is a frequent cause of automobile accidents. This includes such high-risk activities as tailgating, speeding, excessive lane changing, failing to use signal lights to indicate a turn or a lane change, cutting off other vehicles, failing to yield the right of way, and blatantly ignoring traffic signals or signs.

Failing to maintain one’s vehicle in proper operating condition is another frequent cause of traffic accidents. Worn-out brakes are a major cause of many accidents. Tires that do not have enough tread left to stop the car—especially in an emergency—are a common cause of traffic accidents. The risk of getting into a traffic accident in a car with bald tires increases dramatically when there is water on the road, such as with rainfall or icing. Other mechanical causes of an accident may be a tire blowout; a failure of the steering system; axle failure; defects in the door latches, fuel system, airbags, seat belts, or seat backs; and insufficient roof strength to prevent a collapse in the case of a turnover. As you can see, in addition to carelessness on the part of the vehicle’s owner, the design or manufacturing of a vehicle may also be defective. This is true of Sport Utility Vehicles (SUVs), which have a high center of gravity and are more likely to roll over in an accident.

Weather conditions can lead to many accidents. Rain, ice, or snow on the asphalt can cause problems with traction and make it take longer to stop a car than if the road surface was dry. Southern California gets a relatively small amount of rain; when it does rain, oil seeps to the surface of the road, increasing the hazard of a slippery surface. Also, since it rains so infrequently in Southern California, drivers have little experience with how to drive safely on slick roads, resulting in a dramatic increase in accidents during rainy periods.

A growing number of automobile accidents in California involve street racing. In some cases, two drivers get into a race, and then a pedestrian or other vehicle starts to cross the road; the speeding street racer may not be able to stop in time to avoid the accident. Or one of the cars could lose control and hit a pole or tree straight-on, causing serious injury or death. In cases of death, the driver of the other vehicle may face serious criminal charges.

Sometimes an accident occurs on the freeway or a highway when someone is driving in the wrong direction and collides head-on with a vehicle coming from the opposite direction. Frequently the wrong-way driver is very drunk or high on drugs and unwittingly got on the wrong traffic ramp. But some of these drivers are intent on committing suicide and have no regard for the lives of the persons in the other vehicle who will be injured or killed in the collision.

Sometimes an auto accident will be due to the negligence of a public entity—the United States, the State of California, a county, or a city—in designing, constructing, or maintaining public roadways. For instance, a public entity may be liable for deaths or injuries related to road construction accidents resulting from its negligence, if the public entity created a dangerous condition with its property for which it had actual or constructive notice that the condition posed a risk of harm to persons using the road. Constructive notice means that the dangerous condition of the roadway had existed long enough that the public entity should have known about it, such as from a previous accident or a complaint.

Single-car accidents can happen for a number of reasons. Perhaps the driver was speeding or driving under the influence of alcohol or drugs, or there may be a defect in the car that caused it to go out of control. Another common cause of single-vehicle accidents is an unsafe and dangerous design of the road. Faulty signage or road painting can cause a traffic accident. Unsafe railroad crossings are responsible for a number of injuries and deaths each year. Single-vehicle accidents can also result from the negligent design of the vehicle, such as with 15-passenger vans and SUVs: both have a higher center of gravity and may roll over while the driver is negotiating a sharp turn.

Suppose a vehicle hits you and causes injuries to you and your passenger but it leaves the scene before you get a chance to exchange information such as name, address, insurance coverage, registered owner, and the like. Cases such as these are treated as uninsured motorist claims. Any recovery for the personal injuries suffered by you and your passengers must be made under the uninsured motorist clause of your own automobile insurance policy. But what if you didn’t purchase uninsured motorist coverage to save a few bucks on your policy? Then you are out of luck. If you were in any way at fault for the accident, and you have some assets, such as a house or investment portfolio, your passengers may end up seeking compensation for their medical bills, lost wages, pain and suffering, and other damages from you personally.

Sport Utility Vehicle (SUV) rollover accidents seriously injure or kill about 10,000 people in the United States each year, more than side and rear crashes combined. SUVs and 15-passenger vans are much more likely to roll over or flip over than standard passenger vans and automobiles. Rollover accidents are responsible for 51 percent of all deaths in SUVs, 36 percent of deaths in trucks (mainly pickup trucks), and 19 percent of deaths in passenger automobiles. SUVs were originally designed as off-road vehicles, and their high center of gravity makes them top heavy. An SUV traveling at freeway speeds or above is most likely to rollover when the driver performs a simple driving maneuver, like turning to avoid an object in the road or over-steering when passing another vehicle.

One of the main reasons for this high rate of death and serious bodily harm in rollovers, such as paralysis due to a spinal cord injury or head injuries including traumatic brain injury, is crushed roofs. The more the roof is crushed, the more severe the injuries and the risk of death. The current roof-strength standard is some 35 years old and many serious injuries or deaths could be averted by higher strength standards. A study by the National Highway Traffic Safety Administration (NHTSA) revealed a clear statistical correlation between the amount a roof collapsed into the passenger compartment and the severity of injury. In cases where the vehicle’s occupants were not injured, the vehicles averaged 16 centimeters of lost headroom due to roof intrusion. In accidents with the most serious injuries, the vehicles lost an average of 24 centimeters of headroom in the rollover crashes.

USING THE POLICE REPORT TO DETERMINE LIABILITY

Let’s suppose that you’ve been in an automobile accident and a police officer that arrived on the scene prepared an accident report. Is this the ultimate and final say on the cause of the accident? No. Unless the police officer was an eyewitness to the accident, the police report is considered to be “hearsay”— facts based on what the officer heard from others as opposed to seeing it himself—and it is not admissible as evidence in court. Of course, information contained in the police report may be extremely helpful to your attorney, such as the gathered names and statements of witnesses, diagrams of the accident scene, measurements of skid marks, showing where the car was struck, etc.

DOES THE OTHER PERSON HAVE INSURANCE OR SIGNIFICANT ASSETS?

Suppose you were seriously injured in a head-on collision caused by a drunk driver who crossed the double lines separating the directions of traffic. Liability is clear and your damages— financially, medically, and emotionally—run into the hundreds of thousands of dollars. But the problem is that the driver of the other car has no insurance (is an “uninsured motorist”) or low insurance policy limits (an “underinsured motorist”) and little in the way of possessions that could be sold to pay you. A million dollar judgment isn’t worth the paper it’s written on if the person doesn’t have insurance or significant assets to pay the judgment. We’ve all heard the axiom hundreds of times: You can’t squeeze blood from a turnip.

If the vehicle is registered to another person, you might receive some money under the “permissive user” statute that makes a registered owner monetarily liable to a set amount for damages caused by someone driving her car with permission. If you can prove that the registered owner knew the driver had a history of drunk driving or was a reckless driver, the registered owner may be held financially liable for all of the damages under the doctrine of “negligent entrustment,” that is, handing the keys over to a person she knows should not be driving. If the driver was employed and working at the time of the accident, such as transferring merchandise or parts between stores, you may have the right to sue his employer for your injuries and damage.

Depending on the situation, you may want to sue the uninsured or underinsured driver in court and get a judgment against him. Judgments are good in California for 10 years, and after that, they are renewable every 10 years until they are paid off (“satisfied”). That way, if the driver comes into any money— such as an inheritance—you will be able to collect from that.

Of course, finding a lawyer who will take a case in such a situation will be extremely hard, as the lawyer usually will not want to spend much time and energy chasing the wind and waiting for years for money that may never come. But before you decide against seeking compensation from the person who harmed you, regardless of how indigent he may appear to be, always consult an experienced personal injury lawyer, especially if your injuries are serious. The lawyer may know of various legal theories that can be used to get you a significant settlement or award from, say, the city for a negligently designed or maintained road, or the employer of the driver if the driver was running a business errand for his employer.

If you are injured by a driver who has no insurance, or has insurance but its limits are not enough to cover all of your expenses, you should be able to collect some or all of your damages and bills under the uninsured motorist coverage of your own automobile insurance policy, assuming you purchased such coverage. This coverage is highly recommended. Uninsured motorist coverage is usually paired with underinsured motorist coverage, which kicks in after the other driver’s insurance, if any, has paid its limits.

REPORTING THE ACCIDENT TO THE POLICE, THE DMV, OR YOUR INSURANCE COMPANY

Even if you were not at fault, you are generally required to promptly report the accident and your injuries, if any, to your own insurance company. One advantage to this is that, in an automobile case, they can arrange to have your vehicle repaired and provide you with a loaner car while your car is in the body shop. Of course, this applies only if you have collision insurance and you will be liable for the $250 or $500 deductible; however, you can recover that amount from the negligent driver that caused the accident.

If your accident is a slight “fender bender” and you have suffered no personal injuries and the property damage is minimal, the driver who caused the accident may beg you not to call the police or report the accident to the insurance companies for fear his insurance premiums will skyrocket. Even if you agree to this at the accident scene, ask to see the other driver’s insurance information and write down the name of the insurance company, the policy number, and the name and phone number of the agent. Also ask to see the registration to verify that the person who hit you does indeed own the vehicle. If the person who hit you is not the registered owner, write down the information on the registration regarding the registered owner and her address. Also write down the year, make, model, and color of the vehicle, as well as the license plate number.

Frequently a driver doesn’t want you to call the police and asks to work it out among yourselves because he doesn’t have any insurance or is driving on a suspended license. However, if the other driver does in fact have insurance and you don’t believe you were injured, a day or two later you may wake up with a stiff neck, back, and shoulders—typical soft tissue injuries that will require at least a doctor’s evaluation and probably four to six weeks of physical therapy. What are the chances that the other driver will pay out of his own pocket not only the costs of fixing your car (which are probably considerably more expensive to repair than you thought they would be), but also the medical costs you incurred?

In such a case, you will need to report the accident to your own insurance company (if you haven’t already) and to the other driver’s insurance company, despite his earlier protestations that he would take care of the expenses out of his own pocket. Keep in mind that if there has been any personal injury or death arising from the accident, or property damage in excess of $750, the law requires that a form (SR-1) must be filed with the Department of Motor Vehicles within 10 days of the accident.

DO YOU REALLY NEED A LAWYER?

If your case is a typical fender bender that results only in damage to your car, you may be able to handle the claim on your own. However, if a day or two after the accident you feel some stiffness in your neck, back, and shoulders, you should make an appointment with your doctor or chiropractor for a checkup and see whether you suffered any soft-tissue injuries as a result of the accident. If you have such symptoms, the doctor may prescribe a course of physical therapy for you. At this point, the insurance adjuster, who was so friendly and nice to you, and so quick to get your car fixed, will now take a more adversarial attitude with you. The adjuster may claim that when you talked to her, you didn’t have any problems in your neck, back, and shoulders and you’re making it up to pad your claim.

If your injuries are relatively minor, you may still wish to pursue the case on your own and negotiate with the insurance adjuster. In the typical automobile accident involving moderate damage to the car and minor whiplash or other soft-tissue injuries to the victim, insurance companies generally use a formula to compute the amount of damages they will pay. Insurance companies will usually take the amount of medical expenses, multiply that by two or three times to determine “pain and suffering,” add the amount of lost wages and property damage to that figure, and presto!—you have a settlement offer.

If you cannot come to a settlement agreement with the adjuster, you can sue in small claims court. If you suffer personal injury in addition to the damage to your car, you would be well served by making an appointment with an experienced personal injury lawyer to get a better idea of how much your case may be worth. Your damages may be more severe than you think and you may find yourself agreeing to let the lawyer handle the matter for you.

In the beginning, the insurance adjuster will be kind and nice to you, get your car fixed promptly and pay for a rental car, and may even pay for your doctor’s initial visit. The adjuster will add up these bills, include a small amount for your pain and suffering, and make you an offer to settle the claim. Don’t be fooled by the adjuster’s kindness. She is trying to settle the claim as quickly as possible for as little as possible. If you mention the possibility of having a lawyer review the case to see if the settlement offer is fair, the insurance adjuster will tell you that you don’t need to see a lawyer, that the adjuster is being fair with you, and the lawyer’s fees will be coming out of your pocket so you will end up with less money in the long run. Don’t fall for the insurance adjuster’s line. Studies show that persons represented by a lawyer end up with more money in their pockets after the case is settled or a jury award is obtained than people who represent themselves, and this is after the lawyer’s fee has been paid from the settlement or award.

SUING IN SMALL CLAIMS COURT

California small claims court lets you sue for up to $10,000.00. If your case is valued at $10,000 or below, there are a number of reasons not to hire a lawyer but to handle the matter yourself. First of all, it may be difficult to find a lawyer to take a case that is only worth $10,000. Second, a small claims court trial takes place only a month or two after filing the complaint with the court and serving the court documents on the defendant. Compare this with being represented by a lawyer, in which event the case may drag on for months, even a year or more, and you will not be significantly better than if you had sued the guilty party in small claims court.