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Auto Accident Attorney Fairfax

Fairfax Injury Lawyer Brien Roche Addresses Auto Accident Cases

Brien Roche

An auto accident attorney in Fairfax, Virginia is probably a bit more busy than attorneys in many other parts of the state because of the level of congestion in this area.  Although the roads throughout the Fairfax area tend to be quite good the level of traffic and the speed with which many people travel produce a variety of different types of motor vehicle collisions involving not only automobiles but also bicycles, trucks and pedestrians.

Auto Accident Standard of Care

Within any auto collision case it is necessary for the auto accident attorney to prove that there has been some breach of the appropriate standard of care.  In most instances that standard of care is established by the rules of the road which are part of the state or county code that govern the operation of traffic.  It is those statutes or ordinances that govern the movement of traffic and which, in large measure, govern whether or not one driver is negligent or whether both drivers are negligent.

Virginia being a contributory negligence state if in fact both drivers are negligent and that negligence contributed to the injury of the party bringing the claim then that person’s claim is barred for that reason.

Auto Accidents and The Issue of Causation

Within the context of any auto accident case it is necessary also to prove causation, i.e. exactly what did the negligence of the other driver cause.  That frequently becomes a significant hurdle for many plaintiffs, in particular those who have some pre-existing problem that may have been aggravated by the collision.  It then becomes the burden of the plaintiff to show to what extent that pre-existing problem was aggravated or made worse.  The logic of that being that the plaintiff cannot recover for the pre-existing problem but can recover to the extent that the pre-existing problem was made worse by the collision.

The issue of causation is further complicated when there have been more than one recent accident producing injury. Some times bad things do come in twos or threes. For instance, over the years I have had multiple clients approach me about cases where they may have had one accident resulting in minor injury and then months later they have another injury producing more significant consequences. The question then becomes how to distinguish one injury from the other. Most physicians are not well equipped or willing to deal with those types of issues since from the medical perspective they are not concerned about the question of what caused the injury. They are concerned about the scope of the injury and how to cure it.

The final element, of course, that any plaintiff must prove in an auto accident case is the actual damages that were incurred.  Those damages may come in the form of medical expenses, lost wages or the intangible element of pain and suffering consisting of emotional distress, anguish, humiliation and other such intangible damages.  Those intangible damages may be significant and if indeed they are real and the plaintiff has the capability of expressing that to a jury then many local juries will fully and fairly compensate the plaintiff for those damages.

The purpose of the award of damages in an auto accident case is to compensate the injured party for what they have experienced. In the law of torts the purpose is to make that person whole i.e. restore them to their pre-accident condition. Proving those damages is the job of the trial lawyer. They are proved not only through the testimony of the injured party but also through the testimony of the treating doctors who know what the objective signs were of injury and how those injuries were treated. The injuries may also be proven through lay witnesses who know what the collision has caused in terms of impairment to that person’s life and daily activities. The extent of the medical bills and the loss of income are all factors that are to be considered in any award of damages but no mathematical formula can be applied to come up with the value of the case.

In some rare instances an award of punitive damages may be justified. For instance where the at fault motorist had a blood alcohol level of .15 or above at the time of the collision then punitive damages may be claimed and probably awarded. The purpose of punitive damages is to punish the at fault motorist. They are distinguished from compensatory damages discussed above which are designed to make the injured person whole i.e. return them to their pre-accident state through an award of money.

Rear End Collision And Who At Fault Under The Assured Clear Distance Rule

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most instances, there are a few scenarios in which the tailing driver may only be partially liable or not liable at all.  Due to the nature of rear-end collisions, tailing drivers have a difficult time proving they are not at fault.  Luckily for forwarding or tailing drivers, there are factors that you can use to determine whether you are at fault for a rear end collision.

Most cases of rear-end collisions are open and shut, requiring little discussion about each driver’s liability.  This is due to the “Assured Clear Distance Ahead” (ACDA) rule that requires that tailing drivers keep an assured clear distance behind the vehicle.  This means the tailing driver must at all times keep a distance that allows the tailing driver to stop suddenly and safely if the vehicle in front stops suddenly.

In order for this rule to apply, both the forward and tailing drivers must be driving the speed limit and following all other traffic laws.  To give an example, let’s say that you’re driving on the highway when the car in front of you stops suddenly.  You try to brake but end up hitting the car in front of you.  If you and the driver in front of you were both driving the speed limit and you still hit that driver’s car, you have violated the ACDA rule and you are entirely at fault.  Even though this rule seems very cut and dry, there are a few scenarios where the ACDA rule may not apply.

Rear End Collision:Are There Any Scenarios Where The ACDA Would Not Apply?

A tailing driver may not always be liable for rear-ending the car in front of him.  Even when the ACDA rule applies, the forward driver may be at fault for causing the rear end collision, removing the tailing driver’s liability.  Here are the most common scenarios where the forward driver is at fault:

  • Driver’s car malfunctions i.e., a flat tire, but he does not pull over to shoulder and employ hazard lights;
  • Driver’s brake lights malfunction
  • A driver stops suddenly to make a turn

In each of these scenarios the forward driver negligently caused the rear-end collision to occur.  Given the specific facts of the accident, the tailing driver may be partially at fault or not at fault at all.  In a contributory negligence state like Virginia, any negligence on the part of the forward driver that was a direct cause of the collision will allow the tailing driver to avoid paying damages to the forward driver.

Car Accidents Due To Alighting

Many people do not appreciate that car accidents involving alighting from a vehicle are frequently the fault of the person who is exiting the vehicle.  For instance imagine that you park on the right side of a one-way street.  Exiting from that vehicle on the driver’s side into a lane of traffic not only can be dangerous but can create liability.  The person opening the door into a lane of traffic has the obligation to make sure that can be done safely.  

Likewise a person exiting from the passenger side of  a vehicle into a lane of traffic has the obligation to make sure that can be done safely.  

Once the passenger has exited the vehicle and is standing in a lane of traffic then it is the duty of that passenger to make sure that the area is safe.  The failure to do that may result in liability for that passenger.

Car Accidents Due To Alighting From Common Carrier

Common carriers have a special obligation to make sure that their passengers do not exit into a lane of traffic.  That is why taxi doors on one or both sides may frequently be locked by the driver to make sure that the passenger cannot exit into a lane of travel.  

Although it may be more inconvenient for the passenger to have to crawl over a seat in order to get to the curbside door, that frequently is necessary in order to avoid injury and to escape potential liability.  

Last clear chance doctrine

In Virginia the last clear chance doctrine applies to motor vehicle accidents wherein the defendant has raised the defense of contributory negligence on the part of the plaintiff.  As such, last clear chance is really a defense to a defense, i.e. it is a defense to the defense known as contributory negligence.Fairfax auto accident lawyer Brien Roche has authored other articles on related topics on this site.

It typically applies only in two circumstances:

  1. the injured party has negligently placed himself in a position of peril in which he is physically unable to remove himself or
  2. the injured party has negligently placed himself in a position of peril from which he is physically able to remove himself but is unconscious of the danger.

In at least one reported case from the Virginia Supreme Court involving a wrongful death claim the decedent was exceeding the speed limit and driving on the wrong side of the road when he was rear-ended by the defendant who likewise was exceeding the speed limit and on the wrong side of the road.  In that instance, last clear chance did not apply because neither one of the two criteria mentioned above controlled the situation.

Another way to think of last clear chance is it applies in circumstances wherein the plaintiff may be described as being a helpless plaintiff or, in the alternative, where the plaintiff may be described as simply being an inattentive plaintiff.

As the Virginia Supreme Court has stated more than once, in any automobile accident, there comes a point in time when one party becomes helpless in that he or she cannot avoid the accident.  That is not what is meant by a helpless plaintiff.  A  helpless plaintiff situation only arises in those rare circumstances where the plaintiff is physically incapacitated and therefore helpless.

In those circumstances where the opportunity to avoid the collision is as available to the plaintiff as it is to the defendant then the plaintiff’s negligence is not a remote cause of the accident but becomes what is called a “proximate cause” of the accident and therefore the plaintiff’s claim would be barred and the last clear chance defense would not apply.  However, where an injured person has negligently placed himself in a situation of peril from which he is physically unable to remove himself then the defendant is liable if the defendant saw or should have seen the plaintiff in time in order to avert  the collision by using reasonable care.  The doctrine of last clear chance does not necessarily supersede the principle of contributory negligence but it does allow the plaintiff to recover in that instance where his negligence was in fact not a proximate cause but only a remote cause or condition of the accident and the negligence of the defendant then becomes what is called the “sole proximate cause” of the collision.

The long and short of Virginia law on this topic is that the concept of last clear chance is rarely going to be applied in an automobile collision. For more information on last clear chance see the pages on Wikipedia.

Speed Determinations

Speed determinations in a motor vehicle collision are frequently critical.  Skid marks are a common way of attempting to determine speed.  There are formulas that can be used to determine the minimum speed of a vehicle before a driver applied the brakes.  It is not uncommon, however, that vehicles traveling at a significant speed only leave a very short skid mark simply because the brakes were not applied until the last  moment.  However, where skid marks are laid down over a long distance then the so-called straight-skid speed formula may give some good evidence of actual speed.

In addition, a yaw mark may be left on the road surface by the sideward motion of a tire when the driver attempts to turn the wheel.  Such a yaw mark may reveal the speed of the vehicle at the time the mark was made.

In determining speed from skid marks or yaw marks it is necessary to conduct a drag-factor test at the specific point where the tire marks were put down.  This test must be conducted in the same direction that the vehicle was traveling and once that is done and the drag-factor is determined then a determination of speed can be made.

Where there is some evidence of the speed of the vehicle then a time distance analysis may be employed.  That is if the speed of the vehicle is put at 25 miles per hour then the distance that the vehicle is traveling in feet per second is a function of 1.47 times that speed.  In converting miles per hour to feet per second you are then able to point to where the vehicles were at various points in time.

If any object was thrown from the vehicle, then the so-called flip-vault formula may be employed to calculate the minimum speed of the colliding vehicle if the exact point of impact is known and also the exact point where the item first made contact with the ground is known.  This flip-vault formula can also be used in pedestrian knockdown cases where the point of impact and the point where the pedestrian hit the ground after the impact are known.

Another formula that may be employed is the so-called fall formula which can be used where a vehicle has run off an embankment.  Once the horizontal distance that the vehicle traveled before hitting the ground is determined and the vertical distance that the vehicle dropped is known then with those two numbers this formula can be used to prove whether or not the vehicle was speeding when it left the embankment.

Fairfax auto accident attorney Brien Roche has written extensively on this issue of auto accidents and there are numerous other articles within this site dealing with that topic.    

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Contact Us For A Free Consultation

Auto Accident Attorney Fairfax

Fairfax Injury Lawyer Brien Roche Addresses Auto Accident Cases

Brien Roche

An auto accident attorney in Fairfax, Virginia is probably a bit more busy than attorneys in many other parts of the state because of the level of congestion in this area.  Although the roads throughout the Fairfax area tend to be quite good the level of traffic and the speed with which many people travel produce a variety of different types of motor vehicle collisions involving not only automobiles but also bicycles, trucks and pedestrians.

Auto Accident Standard of Care

Within any auto collision case it is necessary for the auto accident attorney to prove that there has been some breach of the appropriate standard of care.  In most instances that standard of care is established by the rules of the road which are part of the state or county code that govern the operation of traffic.  It is those statutes or ordinances that govern the movement of traffic and which, in large measure, govern whether or not one driver is negligent or whether both drivers are negligent.

Virginia being a contributory negligence state if in fact both drivers are negligent and that negligence contributed to the injury of the party bringing the claim then that person’s claim is barred for that reason.

Auto Accidents and The Issue of Causation

Within the context of any auto accident case it is necessary also to prove causation, i.e. exactly what did the negligence of the other driver cause.  That frequently becomes a significant hurdle for many plaintiffs, in particular those who have some pre-existing problem that may have been aggravated by the collision.  It then becomes the burden of the plaintiff to show to what extent that pre-existing problem was aggravated or made worse.  The logic of that being that the plaintiff cannot recover for the pre-existing problem but can recover to the extent that the pre-existing problem was made worse by the collision.

The issue of causation is further complicated when there have been more than one recent accident producing injury. Some times bad things do come in twos or threes. For instance, over the years I have had multiple clients approach me about cases where they may have had one accident resulting in minor injury and then months later they have another injury producing more significant consequences. The question then becomes how to distinguish one injury from the other. Most physicians are not well equipped or willing to deal with those types of issues since from the medical perspective they are not concerned about the question of what caused the injury. They are concerned about the scope of the injury and how to cure it.

The final element, of course, that any plaintiff must prove in an auto accident case is the actual damages that were incurred.  Those damages may come in the form of medical expenses, lost wages or the intangible element of pain and suffering consisting of emotional distress, anguish, humiliation and other such intangible damages.  Those intangible damages may be significant and if indeed they are real and the plaintiff has the capability of expressing that to a jury then many local juries will fully and fairly compensate the plaintiff for those damages.

The purpose of the award of damages in an auto accident case is to compensate the injured party for what they have experienced. In the law of torts the purpose is to make that person whole i.e. restore them to their pre-accident condition. Proving those damages is the job of the trial lawyer. They are proved not only through the testimony of the injured party but also through the testimony of the treating doctors who know what the objective signs were of injury and how those injuries were treated. The injuries may also be proven through lay witnesses who know what the collision has caused in terms of impairment to that person’s life and daily activities. The extent of the medical bills and the loss of income are all factors that are to be considered in any award of damages but no mathematical formula can be applied to come up with the value of the case.

In some rare instances an award of punitive damages may be justified. For instance where the at fault motorist had a blood alcohol level of .15 or above at the time of the collision then punitive damages may be claimed and probably awarded. The purpose of punitive damages is to punish the at fault motorist. They are distinguished from compensatory damages discussed above which are designed to make the injured person whole i.e. return them to their pre-accident state through an award of money.

Rear End Collision And Who At Fault Under The Assured Clear Distance Rule

A rear end collision is one of the most common car accidents.  Most of us have heard that if you are rear-ended in a car accident, the tailing car is almost always at fault.  While that is true in most instances, there are a few scenarios in which the tailing driver may only be partially liable or not liable at all.  Due to the nature of rear-end collisions, tailing drivers have a difficult time proving they are not at fault.  Luckily for forwarding or tailing drivers, there are factors that you can use to determine whether you are at fault for a rear end collision.

Most cases of rear-end collisions are open and shut, requiring little discussion about each driver’s liability.  This is due to the “Assured Clear Distance Ahead” (ACDA) rule that requires that tailing drivers keep an assured clear distance behind the vehicle.  This means the tailing driver must at all times keep a distance that allows the tailing driver to stop suddenly and safely if the vehicle in front stops suddenly.

In order for this rule to apply, both the forward and tailing drivers must be driving the speed limit and following all other traffic laws.  To give an example, let’s say that you’re driving on the highway when the car in front of you stops suddenly.  You try to brake but end up hitting the car in front of you.  If you and the driver in front of you were both driving the speed limit and you still hit that driver’s car, you have violated the ACDA rule and you are entirely at fault.  Even though this rule seems very cut and dry, there are a few scenarios where the ACDA rule may not apply.

Rear End Collision:Are There Any Scenarios Where The ACDA Would Not Apply?

A tailing driver may not always be liable for rear-ending the car in front of him.  Even when the ACDA rule applies, the forward driver may be at fault for causing the rear end collision, removing the tailing driver’s liability.  Here are the most common scenarios where the forward driver is at fault:

  • Driver’s car malfunctions i.e., a flat tire, but he does not pull over to shoulder and employ hazard lights;
  • Driver’s brake lights malfunction
  • A driver stops suddenly to make a turn

In each of these scenarios the forward driver negligently caused the rear-end collision to occur.  Given the specific facts of the accident, the tailing driver may be partially at fault or not at fault at all.  In a contributory negligence state like Virginia, any negligence on the part of the forward driver that was a direct cause of the collision will allow the tailing driver to avoid paying damages to the forward driver.

Car Accidents Due To Alighting

Many people do not appreciate that car accidents involving alighting from a vehicle are frequently the fault of the person who is exiting the vehicle.  For instance imagine that you park on the right side of a one-way street.  Exiting from that vehicle on the driver’s side into a lane of traffic not only can be dangerous but can create liability.  The person opening the door into a lane of traffic has the obligation to make sure that can be done safely.  

Likewise a person exiting from the passenger side of  a vehicle into a lane of traffic has the obligation to make sure that can be done safely.  

Once the passenger has exited the vehicle and is standing in a lane of traffic then it is the duty of that passenger to make sure that the area is safe.  The failure to do that may result in liability for that passenger.

Car Accidents Due To Alighting From Common Carrier

Common carriers have a special obligation to make sure that their passengers do not exit into a lane of traffic.  That is why taxi doors on one or both sides may frequently be locked by the driver to make sure that the passenger cannot exit into a lane of travel.  

Although it may be more inconvenient for the passenger to have to crawl over a seat in order to get to the curbside door, that frequently is necessary in order to avoid injury and to escape potential liability.  

Last clear chance doctrine

In Virginia the last clear chance doctrine applies to motor vehicle accidents wherein the defendant has raised the defense of contributory negligence on the part of the plaintiff.  As such, last clear chance is really a defense to a defense, i.e. it is a defense to the defense known as contributory negligence.Fairfax auto accident lawyer Brien Roche has authored other articles on related topics on this site.

It typically applies only in two circumstances:

  1. the injured party has negligently placed himself in a position of peril in which he is physically unable to remove himself or
  2. the injured party has negligently placed himself in a position of peril from which he is physically able to remove himself but is unconscious of the danger.

In at least one reported case from the Virginia Supreme Court involving a wrongful death claim the decedent was exceeding the speed limit and driving on the wrong side of the road when he was rear-ended by the defendant who likewise was exceeding the speed limit and on the wrong side of the road.  In that instance, last clear chance did not apply because neither one of the two criteria mentioned above controlled the situation.

Another way to think of last clear chance is it applies in circumstances wherein the plaintiff may be described as being a helpless plaintiff or, in the alternative, where the plaintiff may be described as simply being an inattentive plaintiff.

As the Virginia Supreme Court has stated more than once, in any automobile accident, there comes a point in time when one party becomes helpless in that he or she cannot avoid the accident.  That is not what is meant by a helpless plaintiff.  A  helpless plaintiff situation only arises in those rare circumstances where the plaintiff is physically incapacitated and therefore helpless.

In those circumstances where the opportunity to avoid the collision is as available to the plaintiff as it is to the defendant then the plaintiff’s negligence is not a remote cause of the accident but becomes what is called a “proximate cause” of the accident and therefore the plaintiff’s claim would be barred and the last clear chance defense would not apply.  However, where an injured person has negligently placed himself in a situation of peril from which he is physically unable to remove himself then the defendant is liable if the defendant saw or should have seen the plaintiff in time in order to avert  the collision by using reasonable care.  The doctrine of last clear chance does not necessarily supersede the principle of contributory negligence but it does allow the plaintiff to recover in that instance where his negligence was in fact not a proximate cause but only a remote cause or condition of the accident and the negligence of the defendant then becomes what is called the “sole proximate cause” of the collision.

The long and short of Virginia law on this topic is that the concept of last clear chance is rarely going to be applied in an automobile collision. For more information on last clear chance see the pages on Wikipedia.

Speed Determinations

Speed determinations in a motor vehicle collision are frequently critical.  Skid marks are a common way of attempting to determine speed.  There are formulas that can be used to determine the minimum speed of a vehicle before a driver applied the brakes.  It is not uncommon, however, that vehicles traveling at a significant speed only leave a very short skid mark simply because the brakes were not applied until the last  moment.  However, where skid marks are laid down over a long distance then the so-called straight-skid speed formula may give some good evidence of actual speed.

In addition, a yaw mark may be left on the road surface by the sideward motion of a tire when the driver attempts to turn the wheel.  Such a yaw mark may reveal the speed of the vehicle at the time the mark was made.

In determining speed from skid marks or yaw marks it is necessary to conduct a drag-factor test at the specific point where the tire marks were put down.  This test must be conducted in the same direction that the vehicle was traveling and once that is done and the drag-factor is determined then a determination of speed can be made.

Where there is some evidence of the speed of the vehicle then a time distance analysis may be employed.  That is if the speed of the vehicle is put at 25 miles per hour then the distance that the vehicle is traveling in feet per second is a function of 1.47 times that speed.  In converting miles per hour to feet per second you are then able to point to where the vehicles were at various points in time.

If any object was thrown from the vehicle, then the so-called flip-vault formula may be employed to calculate the minimum speed of the colliding vehicle if the exact point of impact is known and also the exact point where the item first made contact with the ground is known.  This flip-vault formula can also be used in pedestrian knockdown cases where the point of impact and the point where the pedestrian hit the ground after the impact are known.

Another formula that may be employed is the so-called fall formula which can be used where a vehicle has run off an embankment.  Once the horizontal distance that the vehicle traveled before hitting the ground is determined and the vertical distance that the vehicle dropped is known then with those two numbers this formula can be used to prove whether or not the vehicle was speeding when it left the embankment.

Fairfax auto accident attorney Brien Roche has written extensively on this issue of auto accidents and there are numerous other articles within this site dealing with that topic.    

Contact Us For A Free Consultation

Contact Us For A Free Consultation