Defending rear end claims. Car accidents occur in a variety of ways but rear-end collisions and improper left turns are often the basis for lawsuits. (Photo: Shutterstock)

Car accidents happen every single day in America.  Bodily injury claims frequently arise from these types of accidental injuries. When a dispute results from such a claim, lawsuits for personal injury are often filed against the driver who purportedly caused the incident.

When a claimant files a lawsuit for personal injury, the plaintiff must prove four elements to establish negligence:

1) the defendant owed the plaintiff a duty;

2) the defendant breached that duty;

3) the defendant’s breach caused the incident; and

4) the plaintiff suffered damages as a result of that breach.

To recover damages, the plaintiff must prove each of these four elements by a preponderance of the evidence. In other words, if the claimant fails to prove duty, breach, causation or damages, then the plaintiff cannot prevail at trial and the defendant will win.

Although car accidents occur in all sorts of ways, rear-end collisions and improper left turns are often the basis for those lawsuits as every driver has a duty to follow other cars at a safe distance and to yield to oncoming traffic ahead. The reason for this is to ensure that drivers can avoid an accident if traffic ahead should slow or come to a stop. This also means a driver cannot turn left at an intersection unless it is clear and only when there are sufficient time and distance between the driver and oncoming traffic.

Plaintiff’s lawyers love when clients have a bodily injury claim arising from these types of car accidents because, in their view, fault lies with the other driver and liability is clear. They see these cases as being a “slam dunk” in which they only have to prove the plaintiff was injured, and don’t believe that they need to prove the remaining elements to meet their burden of proof in a claim for negligence. Indeed, plaintiff’s lawyers often file for summary judgment on the issue of liability because they mistakenly don’t suspect that the defendant can even generate a factual dispute on the issue of fault.

Determining fault

However, fault for the accident does not automatically equate to liability in a negligence action, and there are circumstances that warrant a defense to a lawsuit arising from a car accident.    Consider the following scenarios the next time you are faced with bodily injury claim caused by a car accident to allow you to potentially win an “unwinnable” case:

Sudden, unanticipated emergency. A “sudden emergency” is created when a driver is unexpectedly placed in a position of peril that he did not create on his own. When that occurs, the defendant’s conduct is judged based on whether it was reasonable under the circumstances.

Consider a car moving at a high rate of speed that suddenly comes into the defendant’s lane, forcing the defendant to swerve to avoid being struck. This defensive action then causes the defendant to strike another car and injure the claimant. A trier of fact could find that the defendant being forced to swerve into plaintiff’s lane was not unreasonable under those circumstances.

Take another example involving a rear-end car accident. If the defendant can prove that he was in control of his vehicle and followed the plaintiff at a safe distance, but an unexpected hazard in the roadway caused him to strike the lead driver, the trier of fact would assess whether the defendant’s conduct was reasonable in light of this hazard. In addition, the trier of fact could ultimately find the driver was not negligent. Put another way, the driver’s duty not to follow too closely to traffic ahead would be assessed under the conditions at the time of the accident.

Contributory negligence. Contributory negligence exists in four states and the District of Columbia. In these jurisdictions, if the plaintiff caused or contributed to the accident in any degree, even if only 1%, the plaintiff is barred from recovery.

In a rear-end collision, there might be circumstances in a claim that, for example, the lead driver came to an unnecessary stop, moved in reverse, or that the lead driver’s brake lights failed to function. In an improper left turn accident, there might be facts that the defendant reasonably believed he had sufficient time to clear the intersection, but that the plaintiff was speeding and that contributed to the accident. This could result in a finding of contributory negligence and preclude the plaintiff from any recovery.

Comparative negligence. Comparative negligence allocates fault amongst all drivers involved in an accident wherein a driver’s liability can be reduced, if the other driver is, in part, at fault for causing the accident. Unlike contributory negligence which exists in only five jurisdictions, most states use some form of comparative negligence. There are two main variations to this system: Pure comparative negligence and modified comparative negligence.

In a pure comparative negligence jurisdiction, damages awarded are apportioned according to the percentage of fault. That means that if, for example, the defendant is found to be 70% liable for the accident, the plaintiff recovers 70% of her damages. Although not a complete bar to recovery, pure comparative negligence jurisdictions still permit for the amount of damages awarded to the plaintiff to be reduced in an amount corresponding to the degree of fault attributed to the lead driver. In an extreme case where the plaintiff was found to be 70% at fault, that would reduce the plaintiff’s damages award to only 30%.

The other version is known as the modified comparative negligence system in which liability is again apportioned based on the percentage of fault, but the plaintiff only recovers damages if she is less than 50% responsible for causing the accident. If the plaintiff were to be found 51% or more liable, then she is barred from any recovery.

Damages. Lawyers often refer to cases as having two components: liability and damages.  In doing so, claimants frequently overlook that damages are, in fact, an element to the negligence action, meaning the plaintiff must prove by a preponderance of the evidence that her damages were caused by the accident to win at trial.  Included with that element of damages is the legal requirement that a plaintiff must mitigate damages, meaning she owes a duty not to make her injuries worse.

Plaintiff’s lawyers anticipate a defendant will assert that the plaintiff exaggerated her injuries or overtreated to enlarge her claim. However, the defense on damages does not stop there.  Rather, a defense on damages should take into account whether the plaintiff missed any treatment, failed to follow the doctor’s orders or recommendations, or did not limit certain activities as that could worsen an injury. A thorough review and analysis of the plaintiff’s medical treatment and corresponding records are critical to defending a negligence action for bodily injuries.

Although car accidents cannot always be won at trial, it is not impossible. It is, however, critical to gather all details from the insured driver and have a clear understanding of all facts and circumstances of the incident before accepting liability. If the facts suggest or support any of the defenses above, it is worth investigating with defense counsel.

Marie J. Ignozzi ( is an accomplished trial lawyer at Wright, Constable & Skeen, LLP in Baltimore, Maryland, where she focuses her practice on insurance coverage and defense.   


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