Negligence Per Se

Q: The roadway was dry, the weather was clear, and the speed limit was 65 miles per hour.  Like an airborne red ball, a car crossed over the grassy center median into our lane.  It struck a second car and then struck my car.  The second driver had pulled into the highway behind me and then moved into the left lane.  The collision occurred shortly after she passed me.  Should I sue her?

A: Under the emergency doctrine, the second driver is relieved of liability if she was faced with an emergency situation not of her own making and responded in a manner that was reasonable and prudent in the emergency context.

In a case like this, it generally is necessary to hire an expert witness.  The expert will review the police accident report, the parties’ deposition testimony and photographs of the accident scene, among other things.  One main goal is to determine how many seconds the second driver had to perceive the cross-over car and react by either braking or by turning.

Suppose that the second driver was speeding.  Section 1180 (d) of the Vehicle and Traffic Law essentially imposes a specific duty not to drive in excess of posted maximum speed limits.  And people who like labels say that violation of such a state statute is ‘negligence per se’.  All the same, you must have proof that – if the second driver had been obeying the sign – she would have been able to prevent your injuries.

What the jury finds as causation must link the second driver’s negligent conduct to what happened to you – the harm threatened to the harm done.  Though negligence and causation frequently flow into one another, they are not the same.  The second driver is liable if and only if her negligence was the proximate cause of your injury.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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