by campbell » Thu Sep 01, 2011 06:47 pm
In a traffic accident, does some entity always have to assume liability?
Can a traffic accident truly just be an accident?
Besides the driver him/herself, another driver, and the car manufacturer, who else can be liable for an accident?
Can a traffic accident truly just be an accident?
Besides the driver him/herself, another driver, and the car manufacturer, who else can be liable for an accident?
Posted: Thu Sep 01, 2011 11:46 pm Post Subject:
To quote a good friend of mine in the car insurance biz:
"Every single accident has an element of stupid."
Normally, when you have "stupid" you also have negligence. The question of the OP asks
In a traffic accident, does some entity always have to assume liability?
Can a traffic accident truly just be an accident?
There's pretty much, unless there's no injury or property damage, always liability somewhere. Then... is it really an accident? Yes. The term "accident" really means that there was no intent to get into the situation, there's no such thing as an "intentional accident," so to speak. So, accidents are accidents- it only means that it wasn't an intentional act.
Do all accidents assume some level of negligence? No. In order to have negligence, there must be damages of a monetary nature. Without negligence, there is no assignment of fault, or liability. No damage equal no negligence.
Negligence is defined as "a failure to exercise the care that a reasonably prudent person would exercise in like circumstances." As well, the area of tort law known as negligence involves harm caused by carelessness, not intentional harm.
Remember that insurance isn't tort law (a tort is a "civil wrong"), insurance is contract law. However, negligence is negligence. Taking the last step, if there's no damage, then there's no liability. If there is damage, there is negligence and likely liability.
Hope I didn't confuse the daylights out of you!
InsTeacher 8)
Posted: Fri Sep 02, 2011 03:15 am Post Subject:
Another dimension is the concept of being "at-fault" for a single car accident, which some auto insurance customers have a hard time understanding.
If you skid on a slippery road, overturning and wrecking your car, but not injuring anyone or damaging other property, you are not "legally liable" for the damage to your own car, but you are "at fault" for it, and your auto insurance company will surcharge you -- even if you were driving prudently.
Weather or road conditions are never "at fault," since you are responsible for the safe operation of you car.
Early in my career, I was able to successfully appeal to underwriting to classify a one car accident as "not at fault." The customer was driving very slowly in heavy fog, and he hit a hole in the road due to road construction not being properly marked. That was an isolated case.
Posted: Fri Sep 02, 2011 03:53 am Post Subject:
Do all accidents assume some level of negligence? No. In order to have negligence, there must be damages of a monetary nature. Without negligence, there is no assignment of fault, or liability. No damage equal no negligence.
If you think about this, it's 100% incorrect. Also shown by your statement as follows:Negligence is defined as "a failure to exercise the care that a reasonably prudent person would exercise in like circumstances."
There does not need to be damages in order to be negligence. In most states a person needs to show damages in order to have a claim. No damages, no right of recovery. It's the old story of a person finding a mouse in their soda can. If they just saw it then there is no damages so no claim (of course we all know they are going to claim mental anguish... but that is a different story).
Taking the last step, if there's no damage, then there's no liability
If there is no damage then there is no right of recovery... there can be liability (but it would be pointless).Posted: Fri Sep 02, 2011 05:48 pm Post Subject:
tcope... can't agree with your contention that my statement was incorrect. While liability may be assigned without monetary damages, both contract and tort law require that the tortfeasor NOT exercise the caution a reasonable and prudent person would in a similar situation, the concept of NEGLIGENCE absolutely requires damages to the "injured" party.
Quoting one of many legal sources (this one from http://legal-dictionary.thefreedictionary.com/negligence):
In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
There is similar wording in every definition I can find. While "mental anguish" is not specifically property damage, many courts have determined this type of loss to actually be a bodily injury loss, therefore we have (kind of) "damages" and "harm."
Great discussion here, for a change!
InsTeacher 8)
Posted: Fri Sep 02, 2011 06:05 pm Post Subject:
We are on the same page. But I thing what you are quoting is what is required to use negligence as a cause of action. With no damage you cannot use negligence to argue cause. What I think its really saying is that there needs to be damages in order to have a cause of action based on negligence. The result is the same but for the opposite reason. There could be negligence but with no damages you can't argue negligences as a cause.
Kind of a moot point cause it is all the same in the end.
Posted: Sun Sep 04, 2011 09:57 am Post Subject:
In a traffic accident, does some entity always have to assume liability?
Can a traffic accident truly just be an accident?
Definitions of tort aside, the question may not have been answered at all yet. I don't think we're going to have a traffic collision without some sort of damage to one or both vehicles . . . anything short of that is simply a near miss.
It is possible for two vehicles to collide and each driver determined to be 50% at fault for their damages. For example: two drivers/vehicles collide on a narrow residential street. There are cars parked on both sides, and the remaining available street is not wide enough for two vehicles to pass simultaneously. One driver stops to avoid a ball rolling into the street, the other has the setting sun in his eyes, and is driving slowly because of it. BANG!
The vehicle code says you have to stay to the right of the centerline of the roadway, which, in this instance, is an impossibility. Two vehicles collide, but no one is really at-fault, yet both are legally at-fault for being over the centerline. It's a 50-50 thing -- no one is truly "careless" according to the prudent man rule of law.
Weather or road conditions are never "at fault," since you are responsible for the safe operation of you car.
Robert is also 100% correct. In my scenario above, the width of the street is not a "road condition", but it is a physical hazard, and requires additional "care" on the part of all users of the roadway.
We also know of instances in which a driver suffers a medical event, loses control of their vehicle and causes a collision. No negligence involved here, but damages nonetheless. Can't bring a tort claim based on "negligence", but can still bring a claim for actual damages based on "personal responsibility". Just ask O.J. Simpson what that's all about.
Besides the driver him/herself, another driver, and the car manufacturer, who else can be liable for an accident?
There are all manner of other "third parties" who can bear liability for a collision, from the police officer or firefighter directing traffic, to the child who rides his bicycle carelessly into the street causing others driving autos to swerve to avoid one collision and resulting in another, to the squirrel that suddenly darts into the street and one driver suddenly brakes unexpectedly, but also turns the car instinctively to avoid a collision with the squirrel, but into the path of another vehicle, or into a parked car or other property.
The cop and the firefighter can both be held liable, as can the child who rides their bike with abandon. The squirrel's liability is questionable. Blame PETA for it, perhaps?
Add your comment