What is negligence? As a juror how do I analyze facts when negligence is the issue?

Today’s post is about negligence, what it is and how to view evidence to appreciate what is negligent behavior. Here is a headline and the opening line of a news story out of Indiana.

Snow causes crash and brief

closing of I-65 near Lowell

 

LOWELL | An early Saturday snowstorm is being blamed for a traffic accident that briefly closed a south Lake County section of Interstate 65 and left a downstate man injured.

For years I’ve read headlines and opening sentences in news stories with the lines blaming weather conditions for causing accidents. The idea that snow or weather or even slippery conditions can cause an accident is absolutely preposterous. There is snow outside in my driveway this morning and as I walk to the mailbox to retrieve the morning’s newspaper I notice that the driveway is slippery. The slippers I’m wearing don’t quite fit snuggly on my feet. (Acorn slippers) There is a car sitting in the driveway with snow on it and all around it. So far the snow hasn’t caused an accident. Why not? If snow causes accidents why hasn’t my car in the driveway had an accident? It’s been snowing all night and still there is no accident. The driveway is even slippery and so far no accident. I walked all the way down to the end of the driveway and back and still there is no accident. Maybe I should come back in an hour to see if there’s been an accident. What do you think will there be one? Will I come out to find the fenders crunched and wrecked car?

What’s necessary to have an accident? That’s the place where negligence starts. We need a driver or drivers. No driver and I dare say the car, snow and slippery driveway can coexist all day without having an “accident”.

Now let us turn the discussion to duty. As a juror sitting in a civil car accident case or as the judge will say, a tort case, there are four elements to be proven and then analyzed. The four elements are duty, a breach of duty, proximate cause and damages. Today we are looking at the first two elements, duty and breach of duty. Back to the snow.

As a lawyer with 28 plus years of experience trying civil lawsuits I am confident in saying snow has no duty not to be slippery or to avoid falling on the public highways. I am equally confident in my assertion that no judge would instruct a jury that any law required snow, not to be slippery or on the highway. That I am certain. Drivers on the other hand do have certain duties. A duty is a standard or rule of the road (a law or regulation) that driver must follow in using the public highways. Those duties can include restrictions on speed, when to pass, when not to pass, which side of the road each car should be driving, when to brake and when to make adjustments to the manner in which they drive. Adjustments are the key to this analysis. If it snows and the roadway is slippery the driver must slow down and operate the car or truck in a manner that allows the vehicle to be safely operated. It is the driver who has a duty not the snow. The slick conditions are just that; a condition which the driver must evaluate and adjust his or her driving habits to avoid colliding with other cars, trucks, people, signs, buildings, bridges, culverts and other fixed or moving objects. Drivers are what is needed in my driveway before there can be an accident and it’s those drivers that have the duty and can breach the duty. So when you’re sitting on a jury and someone says that it was the snow or other weather that caused the accident, explain to them how wrong they are and then sit back, hopefully you've wore that power tie or skirt, and see how quickly you’ll become the foreperson.

Here is the full report from Indiana about the snow having caused an accident. While it’s permissible with news reporters to write this way, it’s not proper for lawyers or jurors to think this way. People cause accidents, not weather or cars without drivers.

 

Snow causes crash and brief

closing of I-65 near Lowell

 

LOWELL | An early Saturday snowstorm is being blamed for a traffic accident that briefly closed a south Lake County section of Interstate 65 and left a downstate man injured.

Indiana State Police said Kevin Tomeo, 30, of Avon, In., west of Indianapolis, suffered head and internal injures. He was transported to St. Anthony Medical Center in Crown Point.

The National Weather Service said Saturday an overnight snow system deposited a half inch of snow across much of Northwest Indiana.

Police said an unidentified passenger car was southbound on I-65 shortly after 3 a.m. Saturday when it lost control on a patch of black ice that formed from snow melt at the 238 mile marker, two miles south of the Indiana 2 exit.

Police said the passenger car pulled out of the skid and continued unharmed, but Tomeo's Jeep Cherokee, which was traveling behind it, lost control when he attempted to brake to avoid a collision.

Police said the Jeep began spinning, hit the guard rail and bounced back onto the highway where it was hit by a 2003 Mack truck pulling a double trailer.

Police said the tractor trailer jackknifed, hit the guard rail on the right side of the pavement and came to a halt, blocking all southbound lanes of travel for two and a half hours.

Police said the tractor trailer driver, Roosevelt Bell, 28, of Park Forest, Ill., was uninjured, but ticketed for driving too fast for road conditions.

The National Weather Service said temperatures will remain in the low 30s, but no more snow is forecast until Tuesday.

 

Stopping over the crest of a hill can be negligence.

Once again today we visit the issue of negligence or fault under Iowa’s comparative fault statute, Iowa Code Chapter 668. Today’s act is stopping on a highway. A driver could be found to be negligent if they stop over the crest of a hill. That means simply coming up over a hill and then stopping on the downside out of sight of oncoming traffic. Stopping in such a location doesn’t allow oncoming traffic the opportunity to have sufficient time to stop. If the driver in this condition is faced with an emergency a first impression would be to excuse the situation. But that isn’t always the case. If the driver of the stopped vehicle has time to exit the car and then to warn other drivers it could still be considered negligence. If they do try to warn, but fail to do enough to warn other drivers of the stopped vehicle it too can be an act of negligence.

There is a story being reported where an elderly woman for no explained reason stopped just over the crest of a hill on U.S. Highway 34 east of New London in southeastern Iowa. She was sitting in her car when a National Guard bus crested the hill and struck her vehicle. The bus driver stated he could not stop in time to avoid striking the vehicle. The woman died in the ensuing crash. A further investigation is necessary to try and explain the reasons she stopped. If it were a heart event then she would certainly be excused under the doctrine of sudden emergency.

Most of us think of negligent acts in terms of who was the one striking who. But in this instance it’s the person being struck that is the negligent one, or so it appears. Although this is an unfortunate accident it does demonstrate a point about negligence and fault and for no other reason we discuss it.

Of course the other party can always argue about speed, time and distance issues involving the bus driver and whether his acts amounted to negligence, but that is for another day.

Hit-and-Run Wrecks - Is this an old problem with a new twist?

The Sioux City Journal reported about the crash in Spencer, Iowa where two people were seriously injured Monday in a hit-and-run crash in Clay County. Injured were two people on a motorcycle. The alleged offender was driving and SUV on Highway 18 at around 7:16 p.m.

A person later was found that fit the description and he was charged with operating under the influence and improper passing. Additional charges are, according to the police department pending.

Not knowing more about the circumstances it's difficult to discern the motivation of the driver for leaving the scene. One is immediately lead to the conclusion this suspect must be the one and was driving drunk. But as a lawyer we are not able to jump to such conclusions. Is this the correct driver? Or is he just a suspect.  The police will be required to produce witnesses and other evidence to place this suspect in the driver's seat of the appropriate vehicle, which undoubtedly has some damage to it and perhaps paint chips from the motorcycle or clothing or blood from the injured persons. Also witnesses that can place the driver in a bar or other drinking establishment will be helpful to corroborate his drinking and the amount to which he drank. Remember the suspect was not found at the scene and could have consumed alcohol at some other location following the collision; which isn’t relevant to his impairment while driving at the time of the crash.  

A detailed technical investigation of the scene is critical. Speeds may be determined from crash impact, witness testimony and from ski marks, if any. All this is evidence of a crime and must be performed in such a way as to be later admissible in court.

A tough job but one in which the police departments are fully equipped to do.

This is why young men and women go to law school or join the police academy. This is the work of forensics that excites many young people.

Negligent Behavior - If it's an accident will it still be considered negligent?

There is a recent news item that illustrates the concept of negligence. The driver of a Chrysler van is backing up. At 80 years of age he’s considered elderly. At the same time he’s backing up a 64 year old woman is crossing the street and walks directly behind the van. The van driver has the transmission in reverse and by mistake steps on the gas pedal rather than the brake.

Okay so one is left to ask if this is an accident then is it still negligence. First of all the driver is elderly so we feel bad for him. Also it was simply a mistake in stepping on the gas instead of the brake. Of course the woman he ran over isn’t feeling any compassion for this driver, no matter if he’s 18 or 80 and the fact he stepped in the wrong pedal says nothing for his having knowledge she’s right behind him.

So is it negligence?

And if so why is it negligent?

Clearly if he’s negligent then it’s a proximate cause of her injuries. And we can safely assume she has damages. So answer those questions and tomorrow we can see how well you did.

Negligent Behavior - If it's an accident will it still be considered negligent? The answer.

If you read yesterday’s post you’re answering a question about accidents still being considered negligence.

Here is the short version of the facts: driver of a van sees a pedestrian walking behind him and while trying to brake mistakenly steps on the gas. The question posed is whether an accident can still be considered negligent conduct for which he can be held liable.

The answer is yes, accidents are still causable negligence. In this instance the driver of the van knows the woman is behind him. She’s clearly visible to him and he’s trying to brake to avoid hurting her. But she is still injured because he makes the simple mistake of stepping on the wrong pedal, the gas pedal. He, as the driver of the car has a duty to step on the brake. He has a duty to stop. He has a duty to maintain control of the vehicle-car-truck-motorcycle-atv or another vehicle he’s operating. And when he fails to do so he’s in violation of that duty to control it. So yes it’s still negligence even though he meant to step on the right pedal.

So if you answered yes you were correct.

Motorcycle Safety: Driving the wrong way, heading south in the northbound lane, with head-on collision resulting

Only 19 and with a promising career as a nurse the death of Miss Martin raises several questions one of which is why the motorcycle on which she was a passenger was heading south in the northbound lane of Kerper Boulevard. There is obviously more to this story than meets the eye. I know some boulevards are confusing and if wide enough can cause a driver to mistakenly turn too soon. The east bound off-ramp for I-80 and Merle Hay Road in Des Moines has that same confusing effect. The signage is terrible and if there are no cars heading south on Merle Hay Road a driver can easily turn north into the southbound lanes.

In this instance the mistakes were deadly. Of course wearing helmets may have helped save her life. As the person in the video says, "Don't put a cheap helmet on a priceless head."

I checked the Iowa State Patrol reports and no report have been filed. There are three fatality reports from September 16 to the 21^st, 2008, but none from Dubuque. Obviously there is more to this wreck than is obvious.