The victim/plaintiff has the burden of proof in negligence cases, and that burden is to establish liability by a preponderance of the evidence (more likely than not). If there are two equally-sized stacks of paper next to each other on a table, and someone moves one sheet from the left to the right, the stack on the right is higher than the one on the left, and that is the picture of preponderance of the evidence.
To meet this burden, a car accident lawyer must use a combination of evidence and legal arguments that convince a jury to find the tortfeasor (negligent driver) liable for damages.
Evidence in Car Crash Cases
The police report is often the most important piece of evidence in a vehicle collision case, but it is not necessarily dispositive. Police reports are often incomplete, because emergency responders are there to secure the scene and not to collect evidence on behalf of the plaintiff. Furthermore, police reports are often biased, because if the victim is killed or seriously injured, the reporting officer only hears one side of the story.
To supplement the police report, an attorney can look to several sources:
- Video Evidence: Many intersections have red-light cameras and many nearby businesses have surveillance cameras. First responders almost never take such evidence into account in their initial reports.
- Event Data Recorder: The EDR is much like a commercial airplane’s black box. This device captures and records vehicle speed, steering angle, brake application, and other important car crash metrics.
- Electronic Logging Devices: Beginning in December 2017, almost all large commercial vehicles must have ELDs that automatically record break times, drive times, and other drowsy driving-related data.
In most cases, a lawyer must obtain a court order to inspect these pieces of evidence, due to privacy and other concerns.
Identifying the Proper Defendant
In a few cases, this step is very easy, because the tortfeasor is an adult and there are no other responsible parties.
In a significant number of cases, however, the tortfeasor is not immediately identifiable, because the crash was a hit-and-run. Attorneys often partner with private investigators to locate unknown tortfeasors. These investigators can canvas the area for additional witnesses, review surveillance video, and examine other evidence to establish the tortfeasor’s identity by a preponderance of the evidence, which is different from conclusively establishing the tortfeasor’s identity.
Vicarious liability is also an issue in many car crash cases. Some common third-party liability theories include:
- Respondeat Superior: Employers are legally responsible for the negligent acts of their employees if they were acting within the course and scope of their employment at the time and the victim/plaintiffs’ damages were a foreseeable consequence of their actions or inactions.
- Dram Shop: Restaurants, bars, and other commercial alcohol providers may be legally responsible if their intoxicated patrons negligently injure someone else.
- Negligent Entrustment: If a vehicle owner knowingly allows an incompetent driver to operate his or her car, the owner may be responsible for damages.
These rules vary significantly by state.
The bottom line is that even a seemingly straightforward car wreck case can be very complicated both factually and legally, so it’s important to partner with an experienced attorney.
Kara Perez is the original founder of From Frugal To Free. She is a money expert, speaker and founder of Bravely Go, a feminist financial education company. Her work has been featured on NPR, Business Insider, Forbes, and Elite Daily.