Auto Accidents

Auto Accidents - Accident Law

Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related articles listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

What is Comparative or Contributory Negligence?

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. For example, John and Lewis were involved in an accident. John hit Lewi’s car while making a left turn onto a 2-lane street at night. John didn’t see Lewi’s car because even though it was night time (and a dark one at that), Lewis was not driving with his headlights on. Under a pure contributory negligence theory, Lewis could not recover damages for his injuries because he was partially at fault for the accident. Sound pretty harsh? Actually, some states still follow this rule (Alabama, District of Columbia, Maryland, North Carolina and Virginia).

But most states now use some proportional form of comparative negligence that allows an injured party to recover some damages for his or her injuries, even if he or she was partially at fault. There are currently three variations: Pure comparative fault; proportional comparative fault at 51%; proportional comparative fault at 50%.

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Amusement Park Accidents and Liability

The US Consumer Product Safety Commission’s report of amusement park ride-related deaths and injuries that required emergency room treatment states that in 2002, the most recent year listed, approximately 3,000 injuries were caused by rides and approximately 2,500 injuries were caused by inflatable items such as slides and bounces. Between 1997 and 2002, there were about 5 deaths per year.

Other sources estimate that the number of injuries and deaths is much higher and may be as high as 11,000 injuries per year, and that this figure is increasing.

Injury Statistics:

• 50.6% of all injuries occur to children, especially those between 10-14 years old (17.9%).
• Females (60.8%) are injured 1.5 times more often than males (39.2%) irrespective of age and sites.

Who pays for damages? If an amusement park visitor gets injured, he/she may be entitled to monetary compensation from the park owner. The size of any compensation depends on the seriousness of the injury and on possible state rules regarding any possible fault on the part of the visitor. Guidelines for liability are set forth below, but you should always contact a personal injury lawyer in your local area if you need specific legal advice.

There are four possible bases for liability:

Negligence (lack of reasonable care): Negligence may be found if the ride was not in a safe condition, improperly maintained or inspected. Negligence may also be present if a park employee gave the visitor improper instructions, failed to provide proper warnings about the dangers of the ride, or operated the ride in such a way that the visitor was hurt. Employers are responsible for the actions of the employees, so injured visitors can sue the park owner if an employee fails to use reasonable care.

Most states have laws requiring amusement parks to take certain strict safety precautions. If a park does not do so, there will be a legal presumption that the park operated negligently, which makes it easer to prove a claim against the park.

In some states, owners and operators are not automatically insurers of the safety of park visitors. Therefore, they will only be liable when it can be proved that they acted negligently.

Product liability: Product liability may be found if a ride was so inherently dangerous that proper maintenance, inspection and use could not have prevented the injury. An injured person may sue both the manufacturer and the park, but to win, he/she must show that the manufacturer could have used an alternative design that would have prevented the injury, which obviously is both difficult and expensive to do. In addition, the person suing must also show that the park owner failed to use reasonable care when deciding to have the ride at all.

Another hurdle is that a court may find that a person assumed the risk in using the ride, and that it is unrealistic to expect manufacturers to take all sorts of precautions to make a ride 100% safe.

Premises liability: Property owners must exercise reasonable care in the construction, management and maintenance of all grounds and facilities. Failure to do so will make the owner liable for injuries suffered by people invited onto the property for business purposes, such as a park visitor. Even open and obvious dangers may result in liability.

Wrongful death: This is a death due to the careless, reckless or negligent act of another. Recent cases where an amusement park caused the death of a visitor have resulted in more than $1 million in settlements and damages.

Fault and Car Insurance

Insurance companies often offer extra coverage/protection (for extra money) to help pay for property damage and/or personal injury and medical expenses regardless of fault. So if you are injured in an accident that was mostly your fault and you are not entitled, by law, to compensation from the other person’s insurance, but you have extra coverage under your own policy, your insurance company will pay for your injuries. This extra coverage is called PIP (personal injury protection) or No Fault coverage. Under this scenario, you would file a liability claim with your own insurance carrier for medical bills and lost income, up to a specified maximum, without any discussion or disagreement about the circumstances of the accident and who was at fault. Whether you can file for further expenses against the other person who was at fault in the accident depends on your state’s laws. In many states, Uninsured/Underinsured coverage is required. This provides coverage for damages resulting from an accident with someone who either has no insurance or does not have enough insurance to cover your expenses. It also protects you if the other person flees the scene after the accident or is a driver of a stolen car.

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your accident injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? If you are in a comparative fault state, an adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

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