The Verdict - The Lombardi Law Firm Blog
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The short answer is normally not.
Tuesday’s edition of one news source has this headline: Ice and snow blamed for fatal accident. I read this and immediately know the writer hasn’t a good understanding of what makes up negligent behavior. The headline reinforces a popular misconception but nevertheless it is legally incorrect.
So what happened in this case? It’s a two-car accident on U.S. Highway 34 in Monroe County that occurred on February 13, 2009 around 4:47 PM. Two cars traveling in opposite directions collide. The first vehicle is being driven by one Delaney Palen, an 18-year old woman traveling in the westbound lane. She’s driving a 2006 Chevrolet Cobalt. Delaney is from Ottumwa. The second car is a 2005 Hyundai Tucson being driven by Melissa Thompson, a 33-year old woman from Fort Leavenworth, Kansas. She’s driving east on this same stretch of highway. For those of not familiar with this roadway it’s a two-lane undivided U.S. highway.
There are passengers in each vehicle. Zach Murray is in the first car; Monica Thompson is in the second. Zach Murray is fatally injured in this accident.
Officer Daniel, of the Iowa State Patrol wrote the report. He’s notified of the collision at 16:48 and arrives at the scene at 16:51, so he’s really very close when he receives the call. Let’s see how he describes the collision.
UNIT #1 WAS TRAVELING WEST ON HIGHWAY 34 WHEN IT LOST CONTROL ON THE 100% SNOW COVERED ROADWAY. UNIT #1 CROSSED THE CENTERLINE AND SLID SIDEWAYS INTO THE EASTBOUND LANE IN THE PATH OF UNIT #2. UNIT #2 STRUCK UNIT #1 IN THE PASSENGER SIDE DOOR. AFTER IMPACT, UNIT #2 CAME TO REST IN THE EASTBOUND LANE AND UNIT #1 TRAVELED DOWN INTO THE DITCH AND CAME TO REST IN THE EASTBOUND DITCH. TROOPER KEVIN STALLO #488 WILL CONDUCT A TECHNICAL INVESTIGATION OF THE COLLISION.
Officer Daniel notes major contributing circumstances include the roadway’s weather condition, the road surface condition and the first event is that the Palen vehicle crossed the center line. Let’s assume this to be the case. There are four factors to take into consideration.
- There is a snow storm.
- The roadway has snow and ice.
- Palen crosses the center line.
- Palen’s speed is fast enough for the weather conditions that the tires of her vehicle lose friction allowing the vehicle to slide out of control.
The first question you have to ask yourself is at what point a person simply has to not leave the house, waits to drive on the roads, if already on the roadway to pull off of the roadway and wait for the weather to clear sufficiently that travel is once again safe.
Iowa is a comparative fault state. What is fault as the law defines it? Fault is one or more omissions towards the person or property of the actor or of another which constitutes negligence or recklessness. It could mean misuse of a product, unreasonable failure to avoid an injury or unreasonable failure to mitigate damages. Iowa Code 668.1.
After you determine if more than one party to the claim is at fault then you have to compare the two. More than one person can be at fault under the law.
What is negligence? Or stated another way, what things make a person negligent? Start off with the rules of the road. Under Iowa law there are rules of the road that everyone learned when they first learning to drive. These rules are things like drive on the right side, don’t cross the center line unless it’s safe to do so, drive at the posted speed limit, don’t pass when there is a double yellow line and obey the traffic signs and signals, to name a few. Chapter 321 of the Iowa Code lists well over 400 rules-of-the-roads. These are what we call statutory rules because they are created by the legislature by enacting a statute.
Then there is the common law that has created certain rules for using the public highways. These include a common law duty to drive so that you can maintain control, to drive using ordinary care where conditions require less than the statutory speed limit and maintaining a proper look out.
Read alone a person might think they are not negligent for driving the posted speed limit even though the weather conditions indicate otherwise. The speed limit could be 55 M.P.H. but that doesn’t excuse a person if the roadway is covered in ice/snow and they fail to adjust to the conditions and slow down. We all have a duty to drive at a careful speed not greater than or less than is reasonable and proper, having due regard for the traffic, surface and width of the highway and of any other existing conditions. That is the first jury instruction under speed restrictions. UJI 600.1 (You need to be a lawyer to have access to the UJI through the Iowa Bar Association website.) Anyone who’s ever sat on a jury that decided a car accident probably heard and read this instruction.
As the court’s instruction would be to a jury, a violation of this duty is negligence.
So let’s get back to our example of driving while the road is ice and snow covered and snow is falling. I make no judgments about who is or is not at fault or negligent in the case of Palen and Thompson because I know nothing about that accident. We know what the police said about it but the police officer isn’t a court of law and those findings are not conclusive.
If before leaving the house you see it’s snowing and know the roads are ice covered you have to ask if you can drive safely or not. If not maybe you should stay home.
On the other hand it you’re out driving and it begins to snow and the roads become ice covered there is a point in time when you should pull off the road to avoid losing control.
And if you can drive safely but you have to slow down, then do so.
Ask yourself, what is the explanation of why each driver continued to drive and not pull over or to slow down enough to not lose control? Remember the facts? The car collision occurs in one lane of travel. One car crossed the center line. That is a very important fact. Because whatever you might think of car one’s driver continuing to drive, they were doing so under control; and that’s not true about the second car.
So as badly as you may feel about the collision and how badly the occupants were injured it doesn’t excuse negligence. And the weather isn’t at fault, it’s just one consideration. I say that because the weather isn’t driving the car. It’s the drivers. Looking back at the beginning of this post, the headline blaming ice and snow for this fatal accident is inaccurate and a misstatement of the law of negligence.
Now all of you who read this and believe it sounds so easy that you should represent yourselves, think again. A professor in law school was heard to say, “A lawyer representing himself has a fool for a client.” In most instances I would agree with Professor Powers. Being prepared isn’t the same as being able to litigate a lawsuit. Be prepared but don’t be foolish.
Know your rights, protect yourself and be alert to risks that can cause injury or death.Visit the Help Center at the InjuryBoard or here at Lombardi Law Firm’s website. Steve Lombardi writes for each and explores the how’s and why’s people are injured in our society. He also provides commentary and insight on his blog at The Verdict and on the Des Moines Register
Practicing personal injury law in the Midwest provides the opportunity for many potential clients who have been injured on someone else’s property. The winter ice storms, snow storms along with melting and refreezing creates hazardous conditions for pedestrians. Most people won’t call a lawyer for minor bumps and bruises but those with broken ankles, wrists, arms or ruptured discs will call the lawyer’s office. The problems I see with these cases are varied although there are a few main categories that deserve discussion.
Broken Wrist Injury
A broken wrist is common following a fall on an outstretched hand. A Colles fracture is a fracture of the Radius bone of the forearm, just above the wrist (a Scaphoid fracture is the other common type of wrist fracture). Symptoms include a great deal of wrist pain, a "dinner fork" deformity, wrist swelling and an inability to use the wrist and hand. If a wrist fracture is suspected the patient should be taken to an accident and emergency department without delay.
First understand that you have to prove there was an unreasonably dangerous condition (UDC) that existed on the property. Depending on the use of the property that UDC can take several forms. For instance, if it’s a store where customers are invited to visit, expected to visit and is purposefully distracted with advertisements, then the proprietor is required to anticipate customers will not necessarily recognize and protect themselves from icy conditions. Because the store owner can anticipate this it requires some action on the store owner’s part; sand and salt along with keeping sidewalks clear of ice and snow. If the icy condition is especially difficult to clear then a warning sign, such as the yellow bi-fold sign you see janitor’s use, may be required. The way the law works is the person with the duty must first attempt to make the condition less dangerous and if that’s not possible then to warn those expected to come into contact with it.
While we are discussing conditions let’s talk about artificial conditions. Have you ever seen a downspout that empties right onto a sidewalk? Yeah, me too. The problem occurs with roof ice melting then draining down the spout and refreezing on the sidewalk. That’s known as an artificial condition or man-made condition, which creates a risk. But for the man-made condition the risk would not exist. But for the condition being obvious this is one of the easier ways in which to establish landowner liability.
So what do I normally hear from clients concerning the accident location? About ninety-percent say the same thing. Most everyone says it was slippery or slick. Well folks most of the Midwest is slippery after a storm. Just saying it was slick or icy isn’t enough to prove liability. Slippery conditions existing outside, in the Midwest states during the winter months, isn’t in and of itself, a property defect. And yes, you still have to prove there was a legal defect in the property; or some condition that is unreasonably dangerous. Just testifying you fell and were hurt won’t be enough.
So how do you prove a property defect? More specifically, how do you months later prove a defect long after the snow and ice have melted? To understand the problem let’s go back to the instance after you’ve fallen. Most people are embarrassed, quickly get up, dust themselves off and try to escape the situation. Okay, after falling you’re embarrassed. First you need to get over it and see how you feel. If there is a broken bone or it feels like there is broken bone you need medical attention. But realize that the minute after you leave to get medical attention the attendant employee will run outside and alter the situation with ice melt or sand. So if you’re with someone, a potential witness, ask them to survey the situation along with you. What do you see? Note specifically the size of the icy spot where you fell, the source of the ice, whether it’s from an artificial condition, whether anyone has put sand or ice melt down and the extent of the conditions. By that I mean how large is the icy patch and did the proprietor take any precautions to protect the store patrons from slipping on ice? Is there a warning sign drawing the customers’ attention to the fact that icy conditions may exist and be hidden?
At the accident scene in general people are not likely to be thinking about suing anyone. It’s human nature to be first forgiving. I understand human nature; after 28 years I also appreciate the nature of the insurance business. Deny, deny and deny some more. You see it’s up to the injured person to be able to prove liability. That means if you have a cell phone camera or any camera for that matter, take it out and take some pictures. Don’t be embarrassed or ashamed. Just do it. If anyone says anything to you ask for their name and contact information because sooner or later you’ll need independent witnesses and this is as good a time as any to preserve who those witnesses might be.
Remember, it’s YOUR responsibility to prove liability. Just falling and getting hurt on someone’s property won’t be enough to trigger coverage under the liability portion of the policy. Contacting a lawyer in June about something that occurred in February makes proving your case next to impossible.
Teenagers Slip and Fall on Ice – Shows generally how icy conditions may not be clearly visible.
Worker Slips and Falls While Closing Doors – Security Camera
Parking Lot Slip and Fall – Security Camera (start at 50 sec.)
Sometime in the future I’ll discuss interior conditions that may be considered to be unreasonbly dangerous. Until then here is a video clip that might help you.
Can Polished Concrete Be Slippery? #40C ConcreteNetwork.com