Jump To Navigation

Blog Post

Don't Be Dissuaded to Pursue a He Said/She Said Claim

Posted by: James Gitkin
January 18, 2009
Topic: Auto Accidents

There are two main components of an injury claim - LIABILITY and DAMAGES (causation is another big one to be addressed in another post).  Liability concerns who did what wrong in an accident and damages have to do with the extent of a person's injuries, economic losses, and pain and suffering after an accident.  With respect to liability in auto accident cases, often the who did what wrong is relatively cut and dry.  I have many auto cases where my client was rear-ended or where the other party clearly ran a red light and is conceeding liability.  I signed up a case last week where a man ran a red light and slammed into my client's car, causing the car to flip over two times.  When I spoke to the other driver's insurance adjuster I was assured that the liability would simply not be an issue in that case.

Not all cases are that easy, unfortunately.  As an injury and auto accident attorney in Fort Lauderdale, I have seen many accidents where you would think that the parties were in completely different accidents.  My client and the opposing driver have such divergent stories of the accident and are ready to swear on anything that their version of the story is the right one.  Also, there are times where witnesses with fuzzy memories of the accident can cloud the facts and make it even more confusing as to who actually caused the accident.  I have even had clients who received the citation from the investigating officer but were adament that the accident was actually the fault of the other driver.

Do not be dissuaded to speak with an attorney if there are conflicting stories regarding the accident, or even if you were issued the citation.  For starters, Florida law adheres to the doctrine of comparative fault in auto accidents.  Essentially what that means is that in the event you go to a jury trial for your case, the jury does not make a black or white determination of negligence of the defendant driver - i.e., yes it was definitely the other driver's fault or no it was not.  Florida juries are instructed by the court to apportion percentages of fault to all parties (and non-parties) including the injured person that filed the lawsuit.  Thus, even if the jury is somewhat compelled by the other driver's story, they may believe that your version still makes more sense and decide that the other driver is 50, 60, etc. percent responsible for the accident.  You would then receive that percentage of your verdict amount ($200,000.00 verdict; other driver deemed 50% responsible; judgment amount would be $100,000.00).

Also, seasoned trial lawyers know that oral testimony is not the only liability evidence that can be presented at an auto accident trial.  When the damages justify the expense, in a situation where the are conflicting versions of an accident, most good trial lawyers will dig deeper by retaining an accident reconstructionist (an expert who can scientifically reconstruct the accident and many times determine the true way in which an accident occured).  Often the accident reconstructionist will read transcripts of the testimony, examine the crush damage of the vehicles, review the investigative reports and traffic light sequencing reports, and look at the accident site to piece together speeds of vehicles and facts of an accident.  The findings are sometimes used to create animated simulations of the accident that juries can find to be very compelling.

Lastly, receiving a citation does not mean that your case is dead in the water.  In Florida, the Accident Report Privilege is applicable to most accident investigations.  The Accident Report Privilege stands for the proposition that statements made to the investigating officer after an accident are not admissible in a civil(injury) trial.  After most accidents, investigating officers rely primarily on statements which significantly hamstrings the officer's ability to testify about anything in the injury case.  All the officer can typically testify to is what he/she observed or saw.  Also, the fact that you received the citation is not admissible.

Overall, if you have been injured in an accident and believe that the accident was caused by the other driver, speak with an attorney and find out about your rights.  It could be that what you believe to be an insurmountable situation is something that the attorny can navigate through to get you a recovery.


Subscribe