Posted by Gary Burger on February 15, 2016 in Uncategorized
Auto Accident Law
Auto Accidents and injuries are some of the cases most often encountered in the personal injury practice. Many statutes and regulations have been promulgated, and a large body of statutes and case law has developed in the area of auto accident law. The following information details the areas involved in vehicle accident law.
- Standard of Care and Burden of Proof
Automobile negligence cases are governed by common law and comparative fault principles, but numerous Missouri statutes set standards of care applicable to may circumstances. To recover against Defendant for negligence in operation of an automobile, a plaintiff must show: a motorized vehicle was being operated at the time damages occurred; the vehicle was operated by the defendant or her agent or employee; the vehicle was operated negligently, with or without a statutory violation; and that the negligent operation proximately caused damages to Plaintiff. Rooney v. Llyod Product Co., 458 S.W. 2d 561 (Mo. 1970). Proximate cause exists if the defendant’s conduct causes plaintiff’s injury, which would not have occurred but for the conduct, and the injury was reasonably forseeable. Donham v. Samo, 838 S.W. 2d 170 (Mo. App. W.D. 1992). If multiple tortfeasors cause plaintiff’s damages, liablity is apportioned at trial under comparative fault principles.
Whether or not a vehicle is operated negligently often turns on the applicable standard of care. A vehicle operated off the public road and on private property, where the statutory guidelines for operating motor vehicles do not apply, must be operated with ordinary care and guidelines for operating motor vehicles do not apply, must be operated with ordinary care and according to the “rules of the road.” Doolin v. Swain, 524 S.W. 2d 877 (Mo.banc. 1975). Vehicle passengers and pedestrians must exercise ordinary care as well. Venavle v. S.O.R., Inc., 713 S.W. 2d 37 (Mo. App. 1986); Miller v. Eaton, 733 S.W. 2d 31 (Mo. App. 1987). However, operation of a vehicle on a public road or highway must be done to the highest degree of care. Mo. Rev. Stat. § 304.010. The scope of § 304.010 includes the state, county, and municipal roads, streets, avenues, parkways, and alleys. Doolin. Common carriers, such as bus and truck companies, must also exercise the highest degree of care. Ferkel v. Bi-State Transit Dev. Agency, 682 S.W. 2d 91 (Mo. App. 1984).
Negligence encountered in auto accidents include: failure to keep a proper/careful lookout; failure to operate a vehicle in a safe and prudent manner; failure to yield the right-of-way to plaintiff; failure to sound a warning; failure to swerve, slacken speed or otherwise take evasive action after a danger was or should have been ascertained; operating a vehicle too fast under the circumstances; or failure to yield a right of way to another car or pedestrian. See MAI 4th 17.04, 17.05. for more examples of automobile accident cases asserting a negligence per se cause of action. If the defendant violated a statutory rule of the road, local traffic, or a specific safety regulation, it constitutes a per se violation of defendant’s duty of care, and negligence is not required. Rooney v. Lloyd Metal Products, 458 S.W. 2d 561 (Mo. 1970). At trial, plaintiff need only prove a violation of the appliocable rule and that damages were proximately caused to the plaintiff to recover against the defendant.
Fainting or momentary or permanent loss of consciousness while driving is a complete defense if a loss of consciousness was unforeseeable. Ferkel v. Bi-State Transit Dev. Agency, 682 S.W. 2d 91 (Mo. App. E.D. 1984). The failure to wear a seat belt is not admissible as evidence of comparative negligence in Missouri. Mo. Rev. Stat. § 307.178.178.3. However, if the defendant is able to assert through expert testimony that a failure to wear a seat belt contributed to plaintiff’s injuries, the jury may reduce damages to plaintiff in proportion to such failure, not to exceed one percent (1%). § 307.178.3 (1) (2). Evidence of intoxication is relevant to the issue of negligence. Stojkovic v. Weller, 802 S.W. 2d 152 (Mo. Banc. 1991). In addition, Missouri law permits the liability of facilities serving alcohol to intoxicated persons who are subsequently involved in accidents. See Mo. Rev. Stat. §§ 311.310, 537.1053; Simpson v. Kilcher, 749 S.W. 2d 386 (Mo. Banc 1986).
A lawyer has a duty to identify all potential defendants in a case. Often, the more defendants in a case means the more potential money available for settlement. Thus, be creative in identifying defendants and establishing viable claims against them. A defendant in a vehicle negligence case may be the operator of the vehicle, the operator’s employer or joint venture, a common carrier, the owner of the vehicle engaged in some negligence in permitting another to drive the vehicle, plaintiff’s own insurance company of the main defendant was uninsured or under insured, or any other defendant whose negligence proximately caused the auto accident.
If the defendant vehicle is working in the course and scope of her employment at the time of the accident, her employer or principle can be vicariously liable for the employee/agent’s negligence. See McClure v. McIntosh, 770 S.W. 2d 406 (Mo.App. 1989). Note that Plaintiff may use a rebuttable presumption of agency if the employer owned or controlled the vehicle at the time of the accident and the driver was an employee at the time of the accident. Johnson v. Bi-State Dev. Agency, 793 S.W. 2d 864 (Mo. Banc. 1990). A common carrier may be a defendant under a vicarious liability theory if it furnishes the vehicle operator with signs or insignia on the vehicle in connection with a lease to fdrive the vehicle if; the signs were on the truck at the time of the accident and the carrier failed to take reasonable steps to remove the signs. Johnson v. Pacific Intermountain Express Co., 662 S.W. 2d 237 (Mo. 1983). Note that for automobile collision cases that arise in Missouri, even a non-resident defendant is subject to suit in Missouri. Mo. App. Stat. § 506.210, 506.500.
If the defendants are governmental entity or its employees, special rules apply. Generally, government or the municipal corporations have sovereign immunity for claims against them. Mo. Rev. Stat. § 537.600. But § 537.600(1) contains an exception for claims for compensatory damages for injuries caused by the negligence of public employees operating vehicles within the course and scope of their employment. Peoples v. Conway, 897 S.W. 2d 206 (Mo. App. E.D. 1995). Note that although the governmental entity may be sued, often their agents and employees cannot be sued individually due to official immunity. Public employees are immune from liability for the performance of discretionary, rather ministerial, duties. Thus, a police officer operating a motor vehicle responding to an emergency is performing discretionary duty, but parking a car or routine vehicle operation is a ministerial function with no immunity for negligence. Brown v. Tate, 888 S.W. 2d 413 (Mo. App W.D. 1994); Bachmann v. Welby, 860 S.W. 2d 31 (Mo. App. E.D. 1993).
- Uninsured & Underinsured Coverage
The plaintiff may need to take advantage of uninsured or underinsured motorist coverage provisions in her own automobile insurance company. All auto insurance policies in Missouri must contain uninsured motorist coverage for $25,000 per person and $50,000 per occurrence. Mo. Rev. Stat. § 303.030, 379.203. An uninsured motorist provision protects the plaintiff to the same extent as if the defendant had the minimum insurance requirements in Missouri. Raster v. State Farm Mut. Auto Ins. Co., 668 S.W. 2d 132 (Mo. App. 1984). An uninsured motor vehicle is a vehicle that is not insured. Brake v. MFA Mutual Ins., 525 S.W. 2d (Mo App. 1975). If the plaintiff is driving another vehicle, she will have uninsured coverage through the vehicle owner’s insurance company. A plaintiff is entitled to uninsured motorist coverage if they are entitled to recover damages from the defendant. The details of the applicable uninsured motorist coverage will not be exhaustively addressed here. If an attorney is faced with the denial of an uninsured motorist benefits, an attorney should identify the reason for denial and the denial of an uninsured motorist benefits, an attorney should identify the reason for denial and assess the legal position of the client. An attorney should evaluate an uninsured motorist coverage case as if the defendant had insurance. In the event the uninsured motorist insurance company refuses to settle, an action against the insurance company may be maintained under a breach of the insurance policy contract and vexatious refusal/bad faith theories. Note that some of the insurance policies require timely reporting of phantom vehicle accidents or other circumstances where it is likely that no insurance on the part of the Defendant would be identified. Underinsured coverage should be provided if the Defendants liability insurance coverage is inadequate to fully compensate the Plaintiff.
Stacking of uninsured motorists coverages for auto accidents is possible only in one circumstance. If the plaintiff has an insurance policy with more than one care, she is entitled to stack the uninsured motorist coverage from each motor vehicle covered under the policy in which she is a named insured, even it is a single insurance policy. Cameron Mut. Ins. Co. v. Madden, 533 S.W. 2d 7339 (Mo. App. 1975).