The victim/plaintiff has the burden of proof in negligence cases. To meet this burden of proof, an attorney must first collect evidence.That includes things like medical records, a vehicle’s Event Data Recorder, and witness statements. Then, an attorney must plug the evidence into the appropriate legal theory. Usually, that theory is either negligence (lack of ordinary care) or negligence per se(violation of a safety statute).
But these things are not enough. A diligent attorney must also be ready to respond to a number of common insurance company defenses. Some Of the most frequently-used ones are outlined below.
This defense is especially common in pedestrian accident cases. These incidents have one of the highest fatality rates of any type of car crash case. In fact, if the tortfeasor is travelling more than 40mph, the pedestrian fatality rate is a staggering 90 percent. Because of the serious nature of the injuries, and the extremely high amount of damages, insurance company lawyers are usually desperate to avoid liability.
In their desperation, they usually turn to the sudden emergency defense. In court documents, insurance company lawyers often say that the pedestrian victim “darted out” into traffic outside the crosswalk and against the light. This language sets up the sudden emergency defense.
Legally, sudden emergency has two elements. This clip from the 1995 film Tommy Boy illustrates both of them.The insurance company has the burden of proof to show both:
- Unexpected Situation: The hood fly-up is a completely unexpected situation. There is no way that Tommy Callaghan or any other driver could be ready for such an event. On the other hand, an event like a jaywalking pedestrian is much more commonplace. The same label applies to things like large potholes and stalled cars. These things are not “sudden emergencies” in this context. Tommy’s sudden emergency may be complicated by the fact that he left a can of oil in the spout which caused the hood fly-up. But that tidbit isn’t really relevant to this discussion.
- Reasonable Reaction: After a sudden emergency, a reasonable person pulls over to the right side of the road. But Tommy panicked and drove recklessly after the hood flew up. He even crossed the center line and almost hit a large truck head-on.It is a comedy movie, after all.
So, in a hypothetical lawsuit, Tommy could not claim the sudden emergency defense even though the hood fly-up was a qualifying event.The damages phase of this action could be complex, because a deer trashed Richard Hayden’s car in a previous scene.
Last Clear Chance
Speaking of head-on crashes, Marietta insurance companies often use the last clear chance defense in these instances. This legal doctrine is somewhat similar to sudden emergency.
Assume Driver A crosses the center line and smacks intoDriver B. Emergency responders would almost certainly fault Driver A for the crash. But if Driver B had a reasonable chance to avoid the collision, perhaps by stopping or changing lanes, Driver B would be legally responsible if the driver failed to act accordingly.
Take a look at this clip from 1987’s Planes, Trains, and Automobiles. Lovable lug Dell Griffith made a mistake and began driving on the wrong side of the highway. Ordinarily,driving on the wrong side of the road is negligence per se. A pair of oncoming semi-trucks clearly saw Dell coming,because they blew their horns. If a jury determined that they had a reasonable chance to avoid the collision yet did not do so, the truck drivers would be liable for damages instead of Dell.
Neal Page walked away from the crash unhurt. But if this crash occurred in Cobb County, he might still have a claim for damages under Georgia’s watered-down negligent infliction of emotional distress doctrine. However, that’s the subject of another blog.
Significantly, the driver must have the last clear chance to avoid the crash as opposed to any possible chance. These two things are not synonymous.
Last clear chance and sudden emergency both transfer liability from the tortfeasor to the victim. So, these defenses are rather difficult to prove, even though the evidentiary standard is low. The Contributory negligence defense usually only reduces liability instead of flipping it altogether. Moreover, this doctrine applies to a wide range of situations.So, comparative fault is by far the most common insurance company defense.
Multiple fault is extremely common in Marietta car crash cases. In many car crashes, both parties did something wrong. For example, onedrive might turn before looking and the other driver might be speeding or distracted.
In these cases, the jury must divide fault between the parties. Georgia is a modified comparative fault state with a 50 percent bar. If the tortfeasor is at least 50 percent responsible for the crash, the victim is entitled to a proportional share of damages.
In contrast, neighboring Alabama is a pure contributory negligence state. In the Yellowhammer State, if the victim is even 1 percent responsible for the crash, the victim is ineligible for damages.
Assumption of the Risk
Insurance companies typically use this defense in dog bites another premises liability cases. However, it also comes up in some car crash claims, most notably passenger injury situations. Once again, there are two prongs. The insurance company must establish each one by a preponderance of the evidence (more likely than not):
- Voluntary Assumption: In many cases, participants must sign liability waivers to participate in certain sports or other activities. These waivers are not necessarily “voluntary.” Quite often, these agreements are take-it-or-leave-it contracts of adhesion. These pacts are generally not voluntary.
- Known Risk: Let’s stay with the sports example. A knee injury or other wound that takes place on the field of play is a known risk. But if players get in a fight and one is injured, that risk is not foreseeable.
In both car crashes and premises liability matters, damage usually include compensation for economic losses, such as medical bills, and non economic losses, such as pain and suffering. Additional punitive damages may be available as well, in some cases.
Connect with an Experienced Attorney
Insurance companies often try to use legal loopholes to deny compensation to victims. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm LLC. We routinely handle matters in Cobb County and nearby jurisdictions.