Two children were among the fatalities when a Chevrolet Equinox hit a Cadillac CTS almost head-on.
The wreck occurred on Highway 31 West in Muldraugh. According to police and witnesses, Cynthia Armstrong’s Equinox was southbound when it veered over the center line for unknown reasons. Armstrong then smacked into Christina Diaz’s CTS. Both drivers were declared dead at the scene. Three passengers in the two vehicles were rushed to area hospitals. Two of these three victims survived.
Investigators are still trying to determine the cause of the crash.
Negligence Per Se in Kentucky
Ordinary negligence is a lack of care. Most noncommercial drivers have a duty of reasonable care. Most commercial drivers have a duty of utmost care. If the tortfeasor (negligent driver) breaches a duty, the tortfeasor is responsible for damages.
Negligence per se is the violation of a safety law. Sometimes, state law establishes the standard of care. Driving on the wrong side of the road is a good example. In Kentucky, drivers are presumptively responsible for damages if:
- They violate a safety law, and
- That violation substantially causes injury.
Other common traffic law violations include speeding, making an illegal turn, and driving under the influence of alcohol.
The biggest difference between ordinary negligence and negligence per se is that, in negligence per se claims, victim/plaintiffs need only establish cause. They do not need to prove fault, a lack of care, or anything else.
Frequently, emergency responders issue citations to one driver, and only one driver, so the insurance company can clearly determine fault. So, in certain jurisdictions, the negligence per se shortcut comes up a lot.
In other jurisdictions, the opposite is true. Emergency responders rarely issue citations in injury collisions. They consider such matters civil disputes between insurance companies. So, they do not want to get involved.
In either instance, negligence per se is only a presumption of negligence in Kentucky. Additional evidence of negligence includes things like erratic driving or excessive speed immediately prior to the crash.
Legal Issues in Head-on Wrecks
On a related note, there is usually a difference between fault at the scene and liability for damages. If one driver crosses the center line, the insurance company almost always faults that driver for a crash. But in court, some legal doctrines might change that conclusion.
Not all head-on wrecks are created equally. Some drivers operate on the wrong side of the road for long periods of time. Other drivers suddenly veer onto the wrong side of the road, usually with little or no warning.
Last Clear Chance
Wrong-way operation claims often involve the last clear chance doctrine. The above case could be an example. Assume Diaz (the CTS driver) saw Armstrong (the Equinox driver) cross the center line a quarter-mile before impact. If that’s true, Diaz arguably had a chance to avoid the crash, perhaps by changing speeds or lanes.
If Diaz failed to take advantage of this chance, Diaz is legally responsible for the wreck, even though Armstrong crossed the center line. The aforementioned duty of care includes avoiding accidents when possible. Drivers cannot simply sit back and let things happen.
However, there is a difference between the last clear chance and any possible chance. Frequently, if drivers make sudden moves, they cause worse crashes than the ones they prevent. Other times, things happen too quickly.
This doctrine is related to last clear chance. Sudden emergency often comes up in pedestrian claims. A scene from 1995’s Tommy Boy illustrates the two prongs of the sudden emergency defense, which are:
- Sudden Emergency: The hood fly-up is a sudden emergency, because such events are completely unexpected. Other sudden emergencies include tire blow-outs and lightning strikes. Jaywalking pedestrians are usually not sudden emergencies. These events are not too unusual, so drivers should expect them to happen.
- Reasonable Reaction: Most people reasonably react to car crashes. They pull over, wait for emergency responders to arrive, and render aid if possible. Tommy, however, drove recklessly after the hood fly-up. Therefore, if he hit another vehicle, and it’s a miracle he did not, Tommy could not have used the sudden emergency defense.
Sudden emergency and last clear chance are both affirmative defenses. The insurance company must admit that its insured driver was negligent. Additionally, the insurance company has the burden of proof, and the burden of persuasion, regarding affirmative defenses.
Car wrecks which seem open and shut are often complex. For a free consultation with an experienced car accident lawyer in Lexington, contact Goode Law Office, PLLC. We do not charge upfront legal fees in personal injury matters.