Louisiana Personal Injury Lawyer Blog
The rule of thumb to the average driver is that the driver of the car that rear-ends another is always at fault. Although that may be the case generally, there are exceptions.
While Louisiana law states that a driver is not allowed to follow more closely that is “reasonable and prudent,” considering the vehicle’s speed and traffic conditions. As such, a rear-end collision only creates a presumption of negligence. Thus, the driver is afforded the opportunity to rebut that presumption by showing the driver of the other vehicle was driving unpredictably and, thus, that the situation could not have reasonably anticipated.
A little over three years ago, in Hessmer, LA, there was a rear-end collision that the District Judge held was the fault of both drivers. What is more striking is that the Judge allocated 75% of the fault to the driver that was rear-ended.
The first important take-away of this case is that if you rear-end a vehicle, the facts of your case might not only rebut the presumption that you were negligent, but more likely, lead the court to find you both were negligent. Thus, you can recover damages proportional to the fault assigned the driver in front of you.
Comparative negligence, or “apportionment of fault,” is always interesting. The appellate court has a specific standard to adhere to when they hear an appeal alleging an erroneous apportionment of fault. First, it must clearly be wrong. Secondly, the courts can only raise or lower the apportionment to the respective bounds of the trial court’s discretion. For instance, if the trial court allegedly assigned fault to a party was clearly too high, the appellate court must look to the facts and decide what the highest apportionment of fault could have been without being clearly wrong. Whatever figure that is must be the judgement.
In determining whether the trial court was “clearly wrong,” the court first looks to the facts of the case. In this case, the plaintiff admitted that he had actual knowledge of Ms. Franks’ erratic “stop-and-go” driving. After recognizing Ms. Franks’ indecisive driving, he failed to maintain a safe distance despite being in position to prevent the accident. Next, the court addressed reallocating the fault.
Appellate courts are not designed to address questions of fact such as this. Therefore, the trial court is allowed discretion but the higher court must address clearly wrong determinations lying beyond that permissible range. Since the Court of Appeals believes the trial judge assigned an impermissibly low percentage of fault to the plaintiffs, the court must determine the lowest number permissible and assign that. The court used five factors in this analysis, and held the plaintiff was at least equally at fault. Thus, the court apportioned 50% fault to both the plaintiff and defendant.
There are a series of questions necessary to examine in order to understand the proper attribution of fault:
1) Was the plaintiff actually aware of the danger?
As noted above, the driver was aware of Ms. Frank’s erratic driving.
2) How great of a risk was created by his conduct?
3) How significant was his purpose for acting the way he did?
The second and third factors make most sense when evaluated together. This is commonly referred to as “the BPL analysis.” It is a balancing act of “what was the burden of him slowing down?” weighed against “how much would him slowing down decrease the likelihood and/or severity of a resulting crash?”
In this instance, there was no significant purpose in failing to slow down, and the risk of collision unquestionably was increased by his failure to do so.
4) Did he possess superior knowledge or inferior capacity?
No, but this is neither addressed nor applicable to these facts. This is definitely an interesting topic for a future post, but not today.
5) Were there any extenuating circumstances meriting his driving?
Was his wife in labor? Did his neighbor call to inform him that his house was on fire? Did he realize he forgot to DVR the Saints game?
Remember the applicable rule is that a driver who rear-ends another is presumed negligent, and can only rebut that presumption by showing that the other driver was driving unpredictably and the situation couldn’t have reasonably been anticipated. Thus, the court held that when a driver knows the driver in front of him is driving in an unpredictable manner, fails to take precautions and has no justifiable reason to continue at high speed, that driver should at a minimum be apportioned an equal amount of fault as the unpredictable driver he hit.
It is all too common that more than one party is at fault in automobile accidents. If you have recently been injured in an auto collision, contact the Berniard Law Firm. Providing experienced litigators, our firm is fully capable of advocating to minimize or avoid an apportionment of fault to you in your claim. Every percentage point apportioned is a percentage less you recover.