A 25-year-old Beech Creek woman lost control of her vehicle, left the road, and hit a tree. The accident caused three serious injuries.
The wreck happened on State Highway 189 in Greenville. According to police and witnesses, the driver drifted across the centerline for unknown reasons. Three people were hurt, and one was airlifted from the scene. Only two victims survived.
None of the victims was wearing a seat belt or in a car seat.
Passenger Injury Claims
Legally, injured passengers have the same rights as injured drivers. However, there are some additional considerations in passenger injury cases, some of which aren’t found in any law book.
First, the additional legal issues. Passenger claims sometimes involve the assumption of the risk defense. This doctrine, which often comes up in dog bite and other premises liability claims, excuses negligent injuries if the victim:
- Voluntarily assumes
- A known risk.
Insurance company lawyers often argue that passengers voluntarily assumed a known risk. But a well-prepared Lexington personal injury attorney can usually deal with this defense.
Granted, most passengers aren’t kidnap victims. But a vehicle trip usually isn’t completely voluntary, especially if the victim was a child. As a matter of law, children cannot “voluntarily” do anything in a negligence context.
Furthermore, unless the victim saw the tortfeasor (negligent driver) operate erratically in the moments before the crash, a car wreck usually isn’t a known risk. At best, it is a theoretical risk, even if the tortfeasor was intoxicated or distracted. In these situations, the risk of a collision is simply higher.
Other than this defense, the same underlying law applies. Pedestrian victims must prove negligence, or a lack of care, by a preponderance of the evidence, or more likely than not.
Now, the emotional issues. If they were in the same vehicle, most passengers know most negligent drivers. In fact, in most cases, the relationship is quite close. So, many passengers understandably hesitate to file claims against these tortfeasors.
But there are some important things to understand. First, a negligence claim does not “blame” anyone for a crash. These collisions may not be purely accidental. Usually, the tortfeasor is impaired or breaks a traffic law. But a collision is most certainly unintentional. Instead, a negligence claim essentially forces people to accept responsibility for their mistakes. Kentucky would be a better place to live if we all did that.
Furthermore, and perhaps more importantly, if the tortfeasor had insurance, the tortfeasor is not financially responsible for the wreck. The insurance company hires a lawyer and the insurance company also pays damages. The company might raise the tortfeasor’s insurance rates. But that probably would have happened whether or not a victim files a legal claim.
As mentioned, negligence is basically a lack of care. Specifically, negligence could be a lack of ordinary care or a violation of a safety law.
Device distraction is a good example of the difference between these two doctrines. Kentucky has a very limited cell phone ban. It normally only applies to texting and driving. That’s arguably the most dangerous cell phone activity. Additionally, the law broadly defines “texting” to include things like composing, sending, or reading emails. If tortfeasors are violating this law when they cause a crash, and first responders issue a citation, the tortfeasor could be liable for damages as a matter of law.
This law obviously doesn’t cover all device distraction issues. Most people use their phones for a lot more than texting. Furthermore, using a hands-free phone, which is legal in Kentucky, is the equivalent of driving drunk.
In these situations, victims may use circumstantial evidence, like device use logs, to establish a lack of ordinary care.
We touched on one passenger liability issue above. Another one, which could apply to injured drivers as well, is the seat belt defense.
Kentucky has a rather odd seat belt defense law. In some jurisdictions, victims are ineligible for compensation if they don’t wear seat belts. Other states have an opposite law. Insurance companies can use seat belt non-use to reduce or deny compensation.
The Bluegrass State has a middle-of-the-road law. Seat belt non-use is technically inadmissible. But insurance company lawyers can argue that victims have a duty to wear seat belts and casually mention that the victim wasn’t properly restrained.
Most vehicle collision claims, especially passenger injury claims, are rather complex. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these cases. #goodelawyers