Car accident lawsuits are the most common form of tort claim asserted. Auto crashes involve some careless or reckless act by one person resulting in a collision with another motor vehicle or pedestrian. Whether the use of the car involves actual fault depends on whether the driver’s conduct is contrary to the Rules of the Road. These rules are in the Virginia State code or the local Code of traffic regulation. The Rules of the Road or traffic regulations set the standards for use of motor vehicles. A breach of these rules is negligence.
When you are involved in an car crash in Northern Virginia you have a right to know who will pay your treatment bills, who will pay your lost income, how will you support your family during your period of recovery and what other rights you have as far as a money recovery. Your damages may consist of:
If you’ve been involved in an car crash that causes serious injury then you need to retain counsel. My practice is to tell clients not to even think about settling their injury claim until such time as they have reached what doctors call “maximum medical improvement”. This is the point where either you have returned to your pre injury health or you have gotten as well as you’re going to get. At that point you can think about settling.
If the case cannot be settled then you have a right to file suit against the at-fault motorist and anyone else who caused your injury. That lawsuit in Virginia has to be filed within two (2) years of the date of the injury in most cases. It is not prudent to wait until the last minute to file such suit as there may be some unknowns about who is truly at fault. On the other hand, you don’t want to file suit too early because it may be that the trial date comes up before the full extent of your injury is known.
If you do not retain counsel in a timely fashion for a serious car accident injury then you lose the benefit of having someone objective who can steer you through some of the complex steps you must follow. Call, or contact us for a free consult.
Auto crashes produce a number of questions as to insurance coverage and may provide chances for several forms of coverage to be used:
Drunk driving is still at high levels. Although drunk drivers are sometimes punished through large court awards those awards may go unpaid. Many people carry minimum policy limits. In many areas drivers are not even required to have coverage. For instance in the state of Virginia, insurance coverage for an auto is not required. If however you do not have coverage then you must pay an uninsured motorist fee to the state.
That results in a number of drivers on the road who are not covered. If you have the bad luck of being struck by a drunk driver who is not covered then your recovery is limited to whatever is your uninsured limits. The odd thing about an uninsured motorist claim is that it puts you adverse to your own insurer. That is you are seeking money from your carrier based on the conduct of a third party. Any payment for that misconduct of the third party is coming from your own insurer. The purpose of this coverage is to provide you (the insured) a source of payment in the event that at-fault driver does not have enough coverage. Call, or contact us for a free consult.
Drunk driving crashes involve claims for compensatory damages and punitive damages. Across the country thousands of people die every year because of alcohol involved auto crashes. In Virginia almost a third of all traffic deaths are alcohol involved.
The injured party can claim what are called “compensatory damages” as a result of a tort injury. If the party causing the injury was a drunk driver, then you may claim punitive damages in some cases. These damages go beyond compensatory damages and are designed to punish the drunk driver for that person’s conduct.
In Virginia if the drunk driver has a blood alcohol content that exceeds .15 and at the time of the crash that driver knew or should have known that he was or would be impaired and his conduct caused injury to you then you may receive punitive damages.
Drunk driving deaths in 2013 increased for the first time in six years in Virginia.
The Virginia Faces of Drunk Driving profiles those victims showing them in better times. These profiles contain stories about the victims written by their loved ones. The goal behind Virginia Faces of Drunk Driving is to deter future drunk drivers from even getting on the road.
Governor McAuliffe said, “Given that drunk driving is a 100% preventable crime, even one death is too many.I am committed to reducing drunk driving deaths informing all that we must work to keep our state safe. With this new site with portrayals of people lost to drunk driving and the tragic burden it brings our aim is to save lives and stop drunk driving before it starts.”
Two Virginians die every three days due to drunk drivers. In 2013, 253 Virginians were killed in traffic crashes that involved alcohol use. That was an increase of nearly 10.5% in 2013 compared to the prior five years that had declines in deaths due to drunk driving.
In 2002 Virginia began Checkpoint Strikeforce designed to get drunk drivers off the roadways. The program uses checkpoints, patrols and education about the dangers and fallout of drunk driving. While the goal is to target all drunk drivers, the campaign focuses on males aged 21 to 35. This group is an estimated 1/3 of all Virginians killed in alcohol involved crashes.
Alcohol detectors are now able to detect the presence of alcohol in a person’s body when that person gets behind the wheel. This has been developed in the last few years as a result of the need for sniffing out bombs. Auto makers and safety regulators are making such sensing devices that keep a car from starting if the driver had too much alcohol. Many states now require the placement of a locking system for people convicted of DWI/DUI. In Virginia there is a required one year loss of license with the right to have a restricted license. In addition the lock is required to get the restricted license.
Alcohol was a factor in over 10,000 highway deaths in the year 2009. In the past 20 years it has accounted for over a quarter million deaths. In recent surveys nearly 10% of the people in the U.S. have admitted to being drunk behind the wheel during the one year prior to the survey.
This sensing device could be set at the prohibited level of alcohol content and if the driver was at or above that level then the auto will not start.
Hit and run cases are all too common. They involve the at fault driver leaving the scene of the crash. These are common not only in the Fairfax area but in all of the metro area. If you did not get the name or tag number of that driver then your claim is an uninsured claim. This is a claim made under that part of your policy.
That is why it is a good idea to have this form of coverage on your auto policy. It should be the same limits as your liability limits.
This type of claim must be submitted to your own insurance carrier. If you cannot settle with your own insurer, then a lawsuit should be filed against the hit and run driver as John Doe with your insurer being served with a copy of the suit papers. Your insurer has a right to defend John Doe if they desire and fight the claim just as if the hit and run driver were present. This creates an odd situation. Your insurer is fighting your claim and defending the empty chair of the hit and run driver.
Not all hit and run cases involve an uninsured claim. In some of these cases the driver is known. Virginia Code § 46.2-894 states that a driver has a duty to stop for a crash with injury, death or damage to property. If the damage is to an auto where there is no person or owner nearby then the driver shall attempt to find the owner and report the damage. If the owner cannot be found then the driver is required to leave a note stating driver name and contact info. The driver must also report this within 24 hours to the police. If for any reason the driver cannot do these things the driver still must make a report.
Where there is injury involved to the other party or where the car is attended then the driver is required to stop close to the scene without blocking traffic and report his info to the police and to the injured party. The driver must also render aid. This may include taking that person to a doctor or hospital if required.
This duty to report may apply not only to the driver of an involved auto but to every person 16 years of age or older who is in the auto and knows of the crash.
Hit and run cases can become somewhat tricky in that the plaintiff is trying to get before the jury at trial the fact that the party being sued left the scene. That fact however in some cases is not relevant. It’s not relevant where the other party admits fault. Fleeing itself can be an admission in some cases but in others it may not be an admission and therefore not always relevant.
Using phones or other such devices while driving is a common cause of crashes. It applies to both young and old. It may even be reckless driving. Although one judge in Fairfax County found that in at least one case texting while driving was not reckless driving.
On May 15, 2011 a young man by the name of Jason Gage rear ended a car that had been driven by another young man by the name of Kyle Rowley. Rowley had run out of gas on Route 7 and was pushing his car off to the side of the road. Gage hit him from behind.
Gage was not speeding. He had opened a text message about the time of the crash. The police charged him with reckless driving. At trial, in the Fairfax District Court, the judge dismissed the case because the 2009 Virginia law dealing with texting makes it a minor traffic infraction with a $20.00 fine. As such, that alone could not be reckless driving.
There are studies dealing with texting and cell phone usage. All of them conclude that such usage distracts the driver from the road. In fact, a study from Virginia Tech states that texting drivers are 23 times more likely to crash.
Most states have banned texting while driving. Virginia has. The U.S. has called for a ban on cell phone usage behind the wheel.
Virginia’s texting law, however, is a secondary offense. This means that a police officer can only charge the driver with that offense if the officer pulled him over for some other offense.
Roadway drop off injury cases arise where a car leaves the travel portion of the roadway onto a sunken shoulder. The driver then attempts to reenter the roadway by pulling the front wheels at a sharp angle. The car, in effect, slingshots across the road or rolls over. A drop-off of two inches, or sometimes even less, can cause such loss of control. On highways where the speed limit is 55 or more a drop-off of even one inch can cause fatal results.
The American Association of State Highway and Transportation Officials (AASHTO) has stated that well designed shoulders are needed on any busy roadway. Most drivers when faced with a sudden drop-off attempt to reenter the travel lane. They would be better off simply going with the flow, i.e. going straight ahead.
In handling a vehicle drop-off case you must find the cause of the drop-off. For instance, the drop-off may be due to tractor trailers running their wheels over the road edges. Or it may may be due to school buses or trucks compacting a shoulder to cause a drop-off. It could be due to rain wearing away loose material on the road’s edge.
You must find the source of the drop-off in order to sue the at fault party. Call, or contact us for a free consult.
Sources of info in regards to the cause of the drop-off are:
Dead mans curve is no overstatement. Many places have winding, steep stretches of road where crashes claim the lives of guiltless drivers. These stretches of road, sometimes called dead mans curve, can be fatal.
If you’ve had such a crash there are facts you need to know.
The public bodies that design roads must exercise reasonable care in doing so. In that regard roadways need what are called recovery zones so that a driver who wanders off the road has a chance to return safely. Likewise, guardrails are designed to direct stray cars if there are objects that make reentry a problem. Other such safety devices such as rumble strips provide warning to drivers who have left the main travel surface. In addition, warnings of hazards are needed to alert drivers to dangers ahead.
Guardrails alongside many of our roads and highways serve a dual purpose. They tell the driver about the course of the roadway ahead. They also serve to direct a car back onto the pavement before it leaves the travel surface. A guardrail is required if a car could be expected to leave the roadway and there is lack of room for the driver to come back.
Jersey barriers serve a purpose like guardrails but they are used in high traffic areas.
A guardrail fails its purpose if the upright posts are too far apart. This makes the guardrail too weak to contain the car. Guardrails sometimes are a means of impaling a driver if the car strikes the end of a guardrail.
The speed at which a curve can be safely traveled can be measured by using a ball-swing test. This is a device that is mounted on a car and records the swing of a suspended ball as the car makes the curve at varied speeds. This may be a helpful test to prove the fault on the part of the body that designed the roadway.
Another feature of highway design is proper banking. Banking refers to the way that a road is tilted in order to allow for centrifugal force. This force can cause a car to leave the road. Defective banking, as seen in sinking, may be a product of the age of the roadway.
Some important books to review in evaluating cases like this are the American Association of State Highway and Transportation Officials (AASHTO) Maintenance Manual. Also the Roadside Design Guide, the Traffic Engineering Handbook and the Manual of Uniform Traffic Control Devices. Call, or contact us for a free consult.
Many people do not know that car crashes involving alighting from the car are the fault of the person who is leaving the car. For instance if you park on the right side of a street then getting out on the driver’s side is something that must be done with caution. If a door on the driver’s side of the car is opened into a lane of traffic and somebody runs into it then that is the fault of the person who opened the door. If you cannot safely open the door on the driver’s side then you should pull into an area where that can be done.
Railroad crossing crashes require a detailed knowledge of how railroads operate. Reports will be filed not only with the local police department but with the Federal Railroad Association and the National Transportation Safety Board. Those reports must be obtained.
You must obtain not only the name of the railroad but who owns, controls and has the right-of-way of the tracks and who owns the property next to the tracks. The car or truck involved in the crash needs to be preserved.
What standards apply to the crash and to the crossing devices may be found in the Manual on Uniform Traffic Control Devices. Also the American Association of State Highway Officials’ Geometric Design Standards may be helpful. Any prior crashes at this crossing can be found through a FOIA request to the Federal Railroad Administration. That agency numbers each crossing. The number can be found on the crossbuck pole or on one of the warning devices at the crossing. That number will allow you to gain access to any crashes at that crossing, federal funding for that crossing and other data.
In handling railroad crossing cases you must retain a surveyor to survey the area around the crash for a distance of probably a half mile.
Plus you need to obtain from the railroad:
Contact Fairfax, Virginia Attorney Brien Roche for questions about your railroad accident case.
For more information about your car crashes see the other pages on this site.