Car Accident Attorney

Fairfax Injury Lawyer Brien Roche Addresses Car Accident Cases

Brien Roche

Car accident litigation is probably the most common form of tort claim that is asserted. Auto crashes normally involve some careless or reckless act by one person resulting in a collision with another motor vehicle or pedestrian. Whether the operation of a motor vehicle involves actual negligence is going to depend upon how the driver’s conduct is viewed in light of the Rules of the Road as set forth either in the Virginia State code or the local Code governing traffic regulation. The Rules of the Road or traffic regulations establish the standards for operation of motor vehicles. A violation of these rules or regulations typically constitutes negligence.

How Will I Be Compensated For My Car Accident?

When you are involved in an automobile collision in Northern Virginia you are certainly entitled to know who will pay your medical bills, how will you support your family during your period of recovery and what other rights do you have as far as a monetary recovery. Your damages may consist of:

  • Medical bills
  • Lost wages
  • Pain and suffering
  • Property damage

How We Can Help With Your Car Accident

If you’ve been involved in an automobile collision that results in serious injury then you probably need to retain counsel.  My general practice is to encourage clients not to even consider settling their injury claim until such time as they have reached what doctors call “maximum medical improvement”.  Maximum medical improvement means that either you have fully recovered or you have gotten as well as you’re going to get.  At that point a settlement can be considered.  If the case cannot be settled then you have a right to file suit against the at-fault motorist and anyone else who may be responsible for your injury.  That lawsuit in Virginia typically has to be filed within two (2) years of the date of the injury.  As a general rule it is not prudent to wait until the last minute to file such suit as there may be some unknowns about who is the truly responsible party.  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 injuries is clearly identified.

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 somewhat complex steps that need to be followed in terms of pursuing any sort of injury claim.

Car Accident Insurance

Automobile accidents can produce interesting questions as to insurance coverage and may provide opportunities for several different forms of coverage to be used:

  • Accident liability insurance
    This is the liability coverage that protects the driver being sued.
  • Medpay or personal injury protection
    This form of coverage may pay medical bills for any occupant of the vehicle regardless of fault.
  • Uninsured or under insured motorist coverage
    This coverage may provide additional coverage to the injured party if the at fault driver either did not have liability insurance or had inadequate coverage.
  • Collision coverage
    This is a coverage that will provide indemnity to you for damage to your vehicle.

Potential Causes Of A Car Accident

Drunk Drivers

Drunk driving is still at epidemic proportion.
Although drunk drivers are sometimes punished through substantial court awards, more often than not those awards are unpaid.  Many people carry minimum insurance policy limits.  In fact in many jurisdictions, motorists are not even required to have insurance coverage.  For instance in the state of Virginia, insurance coverage for an automobile is not required.  If however you do not have insurance coverage then you are required to pay an uninsured motorist fee to the state.

That results in a number of motorists on the road simply being uninsured.  If you have the misfortune of being struck by a drunk driver who is also uninsured, then your recovery is limited to whatever may be your uninsured motorist coverage.  You may be able to recover up to whatever your uninsured motorist limits are.The oddity of an uninsured motorist claim is that it puts you adverse to your own insurance company.  That is you are seeking to recover money based upon the conduct of a third party.  The entity however that is going to be paying you for that misconduct of the third party is your own insurance company.  The purpose of uninsured motorist coverage is to provide you (the insured) a source of recovery in the event that at-fault motorist does not have adequate coverage.

Drunk Driving May Entitle You To Punitive Damages.

Drunk driving crashes can involve both claims for compensatory damages and punitive damages. Across the country thousands of people die every year because of alcohol related automobile accidents. In Virginia almost a third of all traffic fatalities are alcohol related.

Typically, you are only entitled to 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 be entitled to punitive damages. Punitive damages go beyond compensatory damages and are designed to punish the wrongdoer 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 accident that driver knew or should have known that his ability to operate the vehicle was impaired or would be impaired if he became intoxicated and indeed that driver’s intoxication then caused injury to you then you may be entitled to punitive damages.

Drunk Driving Fatalities

Drunk driving fatalities in 2013 increased for the first time in six years in the Commonwealth.

The Virginia Faces of Drunk Driving profiles those victims showing them in happier times prior to their deaths accompanied by stories about the victims written by their loved ones who survived.  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 fatalities by continuing our Commonwealth’s enforcement efforts, and raising awareness with Virginians that we all have a responsibility to keep our Commonwealth safe.  With this new site providing intimate portrayals of individuals lost to drunk driving and the tragic burden it places on survivors, or aim is to save lives and stop drunk driving before it starts.”

Incredibly approximately two Virginians die every three days on average due to drunk drivers and in 2013, 253 Virginians were killed in traffic crashes that were related to alcohol use.  That was an increase of nearly 10.5% in 2013 compared to the prior five years that had shown declines in deaths due to drunk driving.

Drunk Driving Srikeforce

In 2002 Virginia began Checkpoint Strikeforce which was designed to get drunk drivers off the roadways using checkpoints, patrols and education about the dangers and fallout of drunk driving.  While Virginia’s goal is to target all potential drunk drivers, the campaign specifically focuses on males aged 21 to 35.  This demographic represents an estimated 1/3 of all Virginians killed in alcohol-related crashes last year.

Alcohol Detectors

Alcohol detectors are now sophisticated enough that they can actually detect the presence of alcohol in a person’s body when that person gets behind the wheel of a car.  This is technology that has been developed in the last several years as a result of the interest in sniffing out terrorist bombs.  Auto manufacturers and federal safety regulators are currently producing such a sensing device that would keep a vehicle from starting if the driver had too much alcohol in his or her system.Many jurisdictions now require the installation of an ignition interlock system for people who have been convicted of DWI/DUI. In Virginia where there is a mandatory one year loss of license with the right to have a restricted license, the ignition interlock is a condition to getting 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 approximately 10% of the people in the United States have admitted to being drunk behind the wheel during the one year period prior to the survey.

With this new technology the sensing device could be set at the prohibited level of alcohol content and if the driver was at or above that level then the driver would not be able to start the vehicle.

For more information on drunk drivers, see the pages on Wikipedia.

Hit and Run Cases May Invoke Uninsured Motorist Coverage

Hit and run cases can present peculiar problems not only in the Fairfax, Virginia area but everywhere.  If you are hit by a motorist who then leaves the scene of the collision and does not stop, and you cannot identify that motor vehicle or identify the motorist then your claim is going to have to be in the nature of an uninsured motorist claim under your uninsured motorist coverage of your automobile insurance policy.

That is why it is so important that as part of your automobile policy you have not only liability coverage but also uninsured motorist coverage of the same limits as your liability limits.

This type of claim would have to be submitted to your own insurance carrier.  If settlement cannot be reached with your own insurance company, then eventually a lawsuit would have to be filed identifying the defendant as John Doe with your uninsured motorist carrier being served with a copy of the suit papers.  Your insurance company would then have a right to defend John Doe if they so desire and actually contest the claim just as if the hit and run motorist were present. This creates a somewhat anomalous situation where your insurance company is fighting your claim and defending the empty chair of the hit and run motorist.

Evidence of Hit and Run Is Not Always Admissible In A Car Accident

Not all hit and run cases involve an uninsured motorist claim. In many of these instances the motorist is actually identified. Virginia Code § 46.2-894 states that a driver has a duty to stop in the event of an accident involving injury, death or damage to property. If the damage is to a vehicle that is not attended i.e., there is no person or owner nearby who is responsible for the vehicle then the involved driver shall make a reasonable effort to find the owner or custodian and report the damage. If the owner or custodian cannot be found then the driver is required to leave a note or some other sufficient information including driver identification and contact information in a conspicuous place at the scene of the accident and also report the accident in writing within 24 hours to the police. If for any reason the driver is prevented from doing these things because of injury then the driver is still obliged to make the required report as soon as possible to the police and make reasonable efforts to locate the owner or custodian of the vehicle.

Where there is personal injury involved to the other party or where the vehicle is attended then the driver of any involved vehicle is likewise required to immediately stop as close as possible to the scene of the collision without obstructing traffic and report his name, address, drivers’ license number, vehicle registration number to the police to the other injured party or to the driver or to some other occupant of that other vehicle. The driver is also required to render reasonable assistance to any injured person. This may include taking that person to a physician or surgeon or hospital if it is apparent that medical treatment is necessary or is requested by the injured person. If the driver is prevented from doing these things because of injury then the driver is still required to exercise reasonable care in taking care of these matters as quickly as possible.

This duty to report may apply not only to the driver of an involved vehicle but to every person 16 years of age or older who is in the vehicle at the time of the accident and who has knowledge of the accident.
Hit and run cases can become somewhat tricky in that the plaintiff generally tries to get into evidence at trial the fact that the defendant left the scene of the collision. That particular fact however in some instances may not be relevant. In particular it’s not relevant where the defendant admits liability. Fleeing itself can of course be an admission in some instances but in other instances it may not be an admission and therefore may not always be relevant.

Find more information on Wikipedia on hit and run.

Distraction Due To Social Media

Distracted driving, i.e. using a portable device while driving, is a common cause of collisions. It applies to both young and old. It may even be evidence of 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 vehicle 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 in the process of pushing his vehicle off to the side of the road when the vehicle was rear-ended by Gage.

There was no evidence of speed by Gage but the police did determine that he had probably opened a text message about the time of the crash.  The police charged him with reckless driving.  At trial, in the Fairfax General District Court, the case was dismissed because the 2009 Virginia law dealing with texting makes it a minor traffic infraction punishable by $20.00 and, as such, that alone could not constitute reckless driving.

There have been several studies over the years dealing with texting and cell phone usage, all of which indicate that such usage clearly is distracting.  In fact, a study from Virginia Tech Transportation Institute found that texting drivers are 23 times more likely to crash.

The majority of states in the Union have banned texting while driving just as Virginia has.  The federal government has actually called for a nationwide ban on cell phone usage behind the wheel.

Virginia’s texting law, however, is what is called a secondary offense meaning that a police officer can only charge the driver with that offense if the driver has been pulled over for some other violation.

Highway Defects

Roadway Drop-off And Car Accident Cases

Roadway drop off injuries arise in those instances where a vehicle leaves the travel portion of the roadway onto a sunken shoulder and the driver then attempts to reenter the roadway by pulling the front wheels at an unmanageable angle and the vehicle, 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.

There Are Standards That May Apply To Roadway Drop-Off Cases

The American Association of State Highway and Transportation Officials (AASHTO) has stated that well-designed shoulders are needed on any roadway with an appreciable volume of traffic.  The typical motorist when confronted with a sudden drop-off will attempt to reenter the travel lane rather than simply going with the flow, i.e. proceeding straight ahead.

In handling a vehicle drop-off case it is important to identify the cause of the drop-off.  For instance, the drop-off may have been caused from tractor trailers running their wheels over the road edges, school buses or other delivery vehicles compacting a shoulder so as to cause a drop-off or a single rain storm, which could wear away a significant amount of loose material on the road’s edge.

It is critical to identify the source of the drop-off in order to identify the potentially at fault party.

Potential sources of  information in regards to the cause of the drop-off are:

  • Local residents who may have knowledge of the cause of the drop-off.
  • The applicable contracts and regulations dealing with the construction of the roadway.
  • The Federal Highway Administration’s Manual of Uniform Traffic Control Devices has sections dealing exclusively with drop-offs.
  • AASHTO publishes specifications, protocols and guidelines dealing with drop-offs.  In particular, their Green Book may be helpful.
  • The FHA’s Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects provides some guidance on drop-offs.
  • The American Automobile Association has published a very comprehensive analysis of crash statistics that may likewise be helpful.

Dead Mans Curve Reveals Dangerous Roadway Facts

Dead mans curve is no overstatement. Many jurisdictions have winding, steep stretches of road where accidents have claimed the lives of unsuspecting drivers and passengers.  These stretches of road, sometimes called dead mans curve can be fatal.

If you’ve been involved in an accident involving poor roadway design or failed safety design, there are facts you need to know:

Government agencies are charged with designing roads that are reasonably safe.  In that regard, roadways need what are called recovery zones so that an inattentive driver who meanders off the road has an opportunity to return to it safely.  Likewise, guardrails are necessary to redirect stray vehicles if there are nearby impediments that make reentry onto the road impossible.  Other such safety mechanisms such as rumble strips provide warning to drivers who have momentarily left the main travel surface.  In addition, adequate warnings of hazards are necessary to properly alert motorists to oncoming dangers.

Dead Mans Curve Can Be Contained Through Barriers

Guardrails which are seen alongside many of our roads and highway serve a dual purpose:  they tell the motorist of the course of the roadway ahead and they also serve as  a means of redirecting a vehicle back onto the pavement before it completely leaves the travel surface.  A guardrail may be required if a vehicle could be reasonably expected to leave the roadway and there is insufficient room for the driver to recover once he has left the roadway.

Jersey barriers serve a purpose similar to guardrails but they are typically only used in more congested areas.

A guardrail will fail to serve its purpose if the supporting vertical posts are too far apart thereby making the guardrail too weak to contain the vehicle.  Another common problem with guardrails is that they may become a mechanism for impaling a vehicle or its owners if the vehicle strikes the end of a guardrail.

Deadmans Curve Can Be Contained Through Banking

Engineers can determine the speed at which a curve can be safely travelled by using a ball-swing test.  This is simply a device that can be mounted on the engineer’s car and records the swing of a suspended ball as the car negotiates the curve at various speeds.  This may be a helpful test to perform to prove the negligence of the governmental entity that designed the roadway.

Another important aspect of highway design is proper banking.  Banking refers to the way that a road is tilted in order to compensate for the tendency of centrifugal force to cause  a vehicle to leave the roadway.  Defective banking may be a product of the age of the roadway which has resulted in the roadway sinking or it may be simply a result of poor design.

Publications Dealing With Highway Defect Cases

Some important publications that may be of assistance in evaluating cases like this are the American Association of State Highway and Transportation Officials (AASHTO) Maintenance Manual, the Roadside Design Guide, the Traffic Engineering Handbook and the Manual of Uniform Traffic Control Devices.

Alighting from a Vehicle Causing A Car Accident

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 a vehicle on the driver’s side is something that must be done with caution.  If a door on the driver’s side of the vehicle 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 and safely exit on the driver’s side of the vehicle then you should pull into an area where that can be accomplished.

Railroad Crossing Accidents

Understanding railroad crossing accidents requires a detailed knowledge of how railroads operate.  Any such accident typically will result in reports being filed not only with the local police department but with the Federal Railroad Association and the National Transportation Safety Board.  It is critical that those reports be obtained by the attorney that represents you in a railroad accident.

It is also important to obtain not only the name of the railroad but who owns, controls and has the right-of-way of the tracks but also who owns the property adjoining the tracks.  The motor vehicle involved in the collision needs to be preserved for expert evaluation.

Determination of Standards for Railroad Crossing Accidents

The determination of what standards may apply to the accident scene and to the operation of the crossing devices may be found in the Manual on Uniform Traffic Control Devices and also in the American Association of State Highway Officials’ Geometric Design Standards.  The history of any prior crashes at this crossing can be typically discovered through a Freedom of Information Act request to the Federal Railroad Administration.  That agency designates every crossing with an identification number which 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 the history of any crashes at that crossing, federal funding that has been provided to that crossing and other historical information.

The Railroad Crossing Accident Scene of Crash

In handling railroad crossing accidents it is important to retain the services of a surveyor for the purpose of surveying the area around the crash for a distance of probably a half mile.

Critical  information that needs to be obtained from the railroad in railroad crossing accidents include:

  • history of any prior accidents or notices relating to that crossing
  • operating instructions and manuals governing railroad employees
  • any event recorder printouts
  • any information relating to track profiles
  • train braking system information

Contact Fairfax, Virginia Attorney Brien Roche for questions about your railroad accident case.

See vehicles struck and related pages for information on Virginia case law on railroad crossing accidents.
For more information about railroad accidents see the pages on Wikipedia.

For more information about your vehicle accident see the other pages on this site

Contact Us For A Free Consultation

Car Accident Attorney

Contact Us For A Free Consultation

Contact Us For A Free Consultation