Regardless of the underlying cause, ships sink, trains wreck, and planes crash, so why do cars have accidents?
Several advocacy groups want to change that mentality regarding car accidents. Amy Cohen, a co-founder of the New York-based Families for Safe Streets organization, points out that “accident” implies that the incident was completely unforeseeable and unavoidable. As any personal injury attorney who deals with these cases knows, they are rarely if ever “accidents.”
Perhaps more disturbingly, according to Transportation Alternatives, the “accident” label often means that no one investigates the root causes or spends money to design safer streets. But for several reasons, the label may be here to stay. Most states still have victims fill out “accident reports,” because that’s the term used in the Transportation Code. Moreover, according to some, “crash” assigns guilt and “accident” presumes innocence. Most importantly, the “accident” moniker makes it easy to explain away the problem. After all, hurricanes just happen, so why can’t “accidents happen” as well?
At the dawn of the Industrial Revolution, factory owners often explained away dangerous conditions as “workplace accidents;” more recently, drunk drivers used to say “it was an accident” if they killed someone.
Speed is a factor in about a third of fatal car crashes, because it increases the likelihood and severity of injury. Velocity multiplies stopping distance, which is reaction time (how long it takes to see an approaching hazard and move one’s foot from the accelerator to the brake) plus breaking time (how long it takes the car to stop safely once the brake is applied). For most passenger vehicles, stopping distance is roughly six car lengths at 30mph and about thirteen car lengths at 50mph. These distances increase significantly depending on the size of the vehicle, the environmental conditions, and other variables.
Excessive velocity also multiplies the force in collisions, so non-injury “fender-benders” become serious injury collisions. Additionally, even if the vehicle stops suddenly, unrestrained objects and individuals inside the vehicle keep moving forward at the same velocity until they too strike fixed objects, like a person’s head or a dashboard.
Alcohol is a factor in about a third of the fatal vehicle collisions on Nevada roads, and because of the different burden of proof and evidentiary rules in civil court, victims can use direct or circumstantial evidence to establish liability.
If the tortfeasor (negligent driver) failed a BAC breath or blood test or was convicted of DUI for any other reason, the negligence per se (negligence “as such”) rule often applies. In these instances, victims do not have to prove the five elements of a traditional negligence case. Instead, victims must only establish that:
In Nevada, the judge decides whether the negligence per se rule applies. Typically, courts allow victims to use this shortcut if the tortfeasor committed a serious infraction, like DUI or reckless driving, but not if the tortfeasor violated a simple traffic law, like failure to yield or speeding.
Many times, the tortfeasor was injured and could not consent to a chemical test. Victims can then rely on circumstantial evidence, such as erratic driving or an odor of alcohol. In criminal court, this evidence normally only proves consumption, but since impairment usually begins with the first drink, consumption is basically the same thing as impairment in civil court.
Finally, distracted driving is a factor in about 10 percent of fatal car crashes. Scientifically, there are three types of distracted driving:
Hand-held cellphones combine all three types of distraction, which is why Nevada is one of the many states with a cellphone ban. However, the law only applies to talking and texting, so even in many cellphone-induced crashes, the negligence per se shortcut is often unavailable.
There are other distracted driving causes as well, from rather innocuous behavior like talking with passengers to dangerous behavior like applying makeup while driving. Ultimately, the jury determines whether the driver’s distraction was so egregious that it violated the duty of reasonable care and caused a car crash.
If the jury finds that the tortfeasor was negligent for any reason, the victim is normally entitled to compensation for economic damages, such as lost wages, and noneconomic damages, such as loss of enjoyment in life. Punitive damages may be available as well, in some cases.
About the Author: Attorney Sherwin Arzani is the co-founder of Citywide Law Group. Mr. Arzani is a graduate of University of Michigan School of Law.