Maximizing Compensation In Personal Injury Cases

Charleston South Carolina personal injury claim lawyer

To make a prima facie negligence claim, the plaintiff must establish that the tortfeasor (negligent driver) owed a legal duty to the victim, the tortfeasor breached that duty, and that breach caused foreseeable damages. In most cases, drivers have a duty of reasonable care, which basically means that they must obey all traffic laws, drive defensively, and concentrate on driving. If they breach that duty of care by driving drunk, speeding, driving while drowsy, etc., they are liable for the damages that they cause, if said damages were a foreseeable result of their action or inaction.

After the plaintiffs present their cases, the defendants have the chance to respond. In car crash cases, the defendant is nearly always the tortfeasor’s auto insurance company. To maximize company profits, these lawyers usually do everything possible to reduce compensation to the victim. What are some common insurance company strategies?

Fault and Liability

When first responders arrive at accident scenes, they always try to assess fault in the collision. However, if the victim was seriously injured or killed, officers normally only hear one side of the story. So, the driver who was “at fault” may not necessarily be the tortfeasor, for legal purposes. In other situations, both drivers were at fault; for example, when one car rolls through a stoplight and the other car is speeding.

In the first situation, the insurance company usually tries to shift blame based on the evidence. If the insured drivers were not “at fault,” the lawyers argue, how could the insured drivers be liable for damages? To gather additional evidence, victims’ lawyers often turn to the Event Data Recorder. All newer cars have these devices, which are a lot like the flight recorders in commercial airplanes. Capability varies by model, but most EDRs capture and record data like:

  • Steering angle,
  • Engine RPM,
  • Vehicle speed, and
  • Air bag deployment.

Evidence like this gives the jury an objective look at what happened in the moments before the crash.

In the second situation (joint fault), the jury must divide fault on a percentage basis to determine liability. South Carolina is a modified comparative fault state with a 51 percent bar, so in order to recover damages, the tortfeasor must be at least 51 percent responsible for the crash. If the jury finds that Driver A was 60 percent responsible, Driver B was 40 percent responsible, and B’s damages were $100,000, A must pay B $60,000. However, if the jury split fault 50-50, A owes B nothing, because A wasn’t mostly responsible for the crash.

The insurance company lawyers will introduce evidence showing that the victims were basically reckless drivers, in order to reduce the amount of fault that jurors assign to the tortfeasors. Typically, the victims’ best strategy is to introduce evidence that they were safe drivers, thereby shifting more blame to the tortfeasors.

The Seat Belt Defense

The Palmetto State has a mandatory seat belt law, and so one would expect that an insurance company could shift responsibility for injuries back on the victims, if they were not properly restrained.

However, seat belt use is legally admissible only under two theories, and neither of them really apply in these situations:

  • Comparative Fault: As discussed earlier, contributory negligence only applies to liability in the collision, and wearing a seat belt has nothing to do with who was at fault in the car crash.
  • Mitigation of Damages: Plaintiffs have a duty to mitigate their damages, so car crash victims have a duty to go to the doctor and obtain treatment for their injuries. However, this duty arises after the injury occurs, and there is no pre-accident duty to mitigate damages.

In over a dozen other states, including Georgia and Florida, seat belt non-use is admissible, and in some cases, it can completely defeat a victim’s claim for damages. Of course, seat belt use, and its relevance in a car accident claim, is only applicable to injuries that could have been prevented with seat belt use. For example, damage to the exterior of a car is completely independent of a driver’s use of a seat belt. In some cases, damage to a car may be so severe that a plaintiff could argue that their injuries would have been incurred regardless of seat belt usage (or lack thereof).

Beyond Comparative Fault

In some situations, liability and fault are completely reversed. One such defense is the sudden emergency rule.

  • Unexpected Situation: “Sudden emergency” has a very specific meaning in this context.  A hood fly-up is a sudden emergency, because there is no way to anticipate these situations. On the other hand, cars often stall or stop short and pedestrians frequently jaywalk, so items like these are not sudden emergencies.
  • Reasonable Reaction: For the defense to apply, the driver must respond reasonably to the unexpected situation, and in most situations, that means pulling over to the right. However, driving recklessly after the hood flew up is not reasonable, so a person in this situation could not have used that defense if he had collided with another vehicle, especially if the crash happened after he crossed the center line.

It is important to understand legal theories like comparative negligence, negligence, emergency rule, and liability when involved in a car accident crash and pursuing compensation. For clarification regarding these legal theories and others, working with an experienced car accident attorney is always a wise idea.

Reach Out to an Assertive Attorney

For prompt assistance with any negligence case, contact an experienced Charleston personal injury attorney at the David Aylor Law Offices. We routinely handle matters in Charleston County and nearby jurisdictions. We are highly skilled at proving fault and building defenses to accusations of fault, and can negotiate a claim to improve your chances of recovering your full compensation amount.