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.