Failure To Keep A Proper Lookout v. Shit Happens

Car Accidents Generally Happen As A Result Of Neligence.

One of the things I've done in my legal career is represent people who have been injured, or the families of people who have been killed, in car accidents. The theory of a lawsuit like this one is almost always "negligence" and one of the common types of negligence attributed to the at fault driver in a lawsuit like this one is "failure to keep a proper lookout."

This is appropriate anecdotally. One of the important factors in one wrongful death auto accident case I handled was a cell phone ringing in a footwell. In another accident the at fault driver admitted to being distracted when traffic stopped suddenly at an exit ramp. There is only one automobile accident case that I can ever recall handling, a fatal one, without that allegation in it with regard to every driver potentially at fault. It was a quite complex multiple vehicle, chain reaction accident where one car spun out of control on a highway causing other vehicles to react to this event.

Now, a new study of crashes and near crashes conducted by the National Highway Traffic Safety Administration and the Virginia Tech Transportation Institute, using videotape to examine driver conduct, shows that failure to keep a proper lookout is far more serious of a problem than previously believed, because it is hard to prove.

Distracted drivers were involved in nearly eight out of 10 collisions or near-crashes . . . . Data from police reports had estimated that driver inattention was a factor in about 25 percent of crashes.

The study also found that:

Drowsy driving increased the driver's risk of a crash or near-crash by four times to six times, the study said. But the study's authors said drowsy driving is frequently underreported in police investigations.

Traffic accidents killed 43,200 people in the United States 2005, and cause hundreds of thousands of serious injuries.

What Is An Appropriate Legal Response?

The article reporting the study also has this reaction:

"I urge legislators not to interpret these results as a need for new legislative initiatives. It is simply not good public policy to pass laws addressing every type of driver behavior," said Lt. Col. Jim Champagne, chairman of the Governors Highway Safety Association.

At one level, I think this is right. We probably shouldn't have a raft of new laws outlawing every specific kind of driver behavior one can imagine. Part of the problem is that it is hard to determine what the social benefits of those kinds of behavior are, which makes it hard to weigh the costs of those behaviors against them to determine if they should be banned, even if we do know those costs. In a similar vein, we could eliminate traffic accidents entirely by eliminating driving, but that would have immense social costs of its own.

It isn't that the behaviors involved like eating, drinking, listening to music, or talking to someone on a cell phone are bad. The problem is that the distractions they cause are a problem when they reach the level that causes accidents. But, this doesn't mean that an increased penalty for existing offenses, like failure to keep a proper lookout isn't appropriate, as we now know that it is a more serious problem than previously believed. And, I think that this study also presents strong evidence that some of the details of our fault based automobile accident liability regime should change.

One of the most important things that this new study shows is that driver negligence is a substantial factor in the vast majority of accidents. This study shows driver negligence to be far more of a problem than had previously been established by less searching methods of empirical research, like review of police reports as opposed to the videotapes of accidents and near accidents used in the most recent study. This is important because, as I have noted previously on this blog, one of the most common defenses in a negligence action is the "shit happens" defense. The "shit happens" defense involves cases when an accident happened, but the injured party, often due to lack of access to evidence, can't identify a particular negligent action on the part of the at fault driver that led to the accident.

Inattention either due to a drowsy driver or some distaction like a cell phone or grabbing a coffee is the kind of negligence which is particularly hard to prove unless the at fault driver admits it. A crash both jolts a drowsy driver awake and can cause shock difficult to distinguish from drowsiness. Without videotape, it is hard to establish from physical evidence what the driver was doing at the exact moment of the crash, since the impact disturbs everything in the car and often jumbles an at fault driver's memory as well. Indeed, distractions are often virtually unconscious activities that the driver isn't actively thinking about when they occur, and may honestly not recall after the fact.

But, changes in the tort law rules that govern civil lawsuit for damages in automobile accident cases may be appropriate in response to this new empirical evidence.

Addressing The Problem With Modified Tort Rules.

If studies like this recent one are correct, justice would be better served by presuming that any accident is due to someone's negligence unless proven otherwise. Generally speaking, legal presumptions, which apply in the absence of evidence, produce the most accurate verdicts if they match the empirically most likely state of affairs. This wouldn't be a pure strict liability regime. Injured drivers often end up in accidents due to their own negligence, which is governed by doctrines such as comparative fault and contributory negligence. And, sometimes people who aren't parties to the lawsuit are at fault. But, it is rare for accident to just happen.

Given the fact that truly fault free accidents rare, the current state of the law, which presumes that no one is at fault until an injured party proves otherwise by a preponderance of the evidence, which makes the "shit happens" case the default rule, is not the best one for allocating liability in car accidents. Once the threshold of showing that an accident took place has been met, the likelihood that it was not someone's fault is very low.

A better rule would (1) presume that someone is at fault in every accident, (2) take an even handed stance between the injured party and the defendant by presuming that all drivers in the accident were equally at fault until proven otherwise, which in a comparative fault regime means that the defendant would have to pay half of the damages suffered by the injured party, (3) retain existing Colorado law that place a burden on the defendant to identify any other party who may be at fault if the defendant believes that he or she was not, and a burden on the injured party to join anyone so identified as a party in the lawsuit, and (4) place the burden of proof on a defendant to show no one at all was at fault, as an affirmative defense, if that is the defendant's theory of the case.

This approach also makes the elimination of the strict Colorado rule barring any liability if the injured party was more than 50% at fault desirable, although a more lenient rule, barring liability, for example, for parties less than 5%, at fault, if all other parties combined were collectively more than 50% at fault, to discourage low stakes lawsuits against people only minimally at fault in an accident, might still be appropriate. Ending the 50%+ contributory negligence bar to lawsuits already makes sense, even under existing Colorado tort law. Unlike most states, which hold anyone even slightly at fault responsible for the entire harm caused by an accident if their co-defendants are insolvent, Colorado does not have joint and several liability for tortfeasors in car accidents. Thus, if two defendants are each 30% at fault, but one is insured, while the other in uninsured and insolvent, the insured driver is not responsible for paying the damages owed by the uninsured driver. Why should it matter to a person 45% at fault in causing a serious accident, if the other 55% responsiblity lies with the injured person, or a combination of the injured person and a third party driver?

This would lead to more just results in the relatively common situation where somone is injured in a car accident, but the injured person is unable to prove a specific act of the other driver that caused the accident, often because the only source of proof was the other driver's own testimony regarding inattention at the moment of the accident. Instead, if the injured person could prove that he or she was without fault, the other driver would be presumed to be at fault, unless he could prove the responsiblity of a third party, or facts that show that this was actually a "shit happens" case, such as the not infrequent circumstance in Colorado of a boulder rolling down a mountain onto a highway that forces everyone to react to the sudden emergency. And, if neither the injured party, nor the defendant could show that the other was at fault, the injuried from the accident would be paid for equally by all those involved in the accident, because while it isn't uncommon for multiple parties to be equally at fault, accidents that lead to lawsuits almost involve disproportionate serious injuries by one party to the accident, so tort principals require that damages be shared.

The end result of this new rule would likely be to hold a much larger share of inattentive drivers responsible for their negligence, despite the fact that this kind of fault is hard to prove.

Tort Reformers Are Wrong.

The tort reform movement is a movement whose overall goal is to limit tort liability and to limit damages for injured persons who are successful in their lawsuits. It is funded by institutions like big businesses who often are sued for the harms they cause to others, insurance companies that pay for those mistakes directly, and the defense lawyers who represent them. They frequently talk about the sum total of damages awarded, settlements paid, and money spend litigating claims as a "tort tax", and describe their efforts to limited liability as an economically efficient tax cut.

Tort reformers would probably predictably oppose the changes I suggest above because the make it easier to recover damages in tort, sometimes even in the absence of affirmative proof of fault.

But, contrary to the claims of tort reformers, a system that accurately imposes liability upon responsible parties as a transfer cost is more economically efficient than the no liability regime which tort reformers implicitly are trying to impose. Compensatory damages are not a dead weight loss to society. Instead, they force people to accurately weigh the cost of preventing accidents against the harm caused by the accidents themselves. By creating a more accurate measured economic incentive to avoid distractions which may be hard to prove in court, likely imposed by proxy through insurance companies in many cases, this modified tort regime would improve both fairness and economic efficiency.

This kind of efficiency and accuracy in cases where default rules apply is particularly important now that Colorado handles even small accidents, where the costs of gathering evidence are high relative to the stakes in the case, through a tort regime, rather than the "no fault" regime that previously applied to small accident cases.