Liability

      Negligence is often defined as doing something that an ordinary person would not do or not doing something that an ordinary person would do. It is always the burden of the plaintiff to prove by a preponderance of the evidence that the responsible person was negligent. Many injured persons will try to handle their own case, thinking that they will avoid a legal fee and get as good of a result that a personal injury lawyer would. What they don't understand is that the insurance company will fight every issue including liability and will also lowball any unrepresented person. The insurance company will not offer a reasonable settlement to an unrepresented person who has no means to get more money. The only threat that you have as an injured person is to file a lawsuit. That is what our personal injury attorneys do for a living.

Agency

      Frequently, a driver of a vehicle is acting as the agent, servant and/or employee of another person or company. If that is the case in an accident, the person or company may be held liable for the damages caused by the accident. Assuming the driver of the vehicle was not on a private mission wholly separate from the mission of the principal, normally the principal is just as liable as the driver. If one is able to prove that the driver was acting within the scope of employment at the time of an accident, the company would be responsible for the accident as well as the driver. There are, however, some exceptions that need to be considered, especially with regard to employees of the federal government and possibly other isolated circumstances. If the driver is an independent contractor, liability may not attach to the principal. There are various tests that an experienced personal injury attorney can use to determine if the driver was an independent contractor. Essentially, one must try to prove that the principal had some degree of control over the driver in order to remove the independent contractor designation. Even if the driver was not acting as the agent, servant and/or employee of the owner of a vehicle, the insurance covering the vehicle still will provide coverage if the driver was a permissive user. If the driver was not a permissive user of the vehicle, such as with a stolen car, the driver would not be covered by the liability insurance policy on the vehicle.

Parent responsible for minors

      In Maryland, usually a parent is responsible for the negligence of his or her child only if the parent encouraged the child's act which caused the injuries, damages or losses or subsequently approved of the act after it had been completed. Maryland does not usually follow the family purpose doctrine which assumes a child driving a parent's vehicle is acting as the agent of the parent. In the District of Columbia , the family purpose doctrine may be used but it is a presumption that can be rebutted.

Defenses to Liability

Contributory negligence

      Maryland has a theory of law that is unique to very few states in the United States. This theory is called contributory negligence. In the event the plaintiff proves the other party is at fault in an accident, the defendant can avoid liability for an accident if he/she proves that the plaintiff also was negligent in the happening of the accident. The defendant has the burden of proof to show contributory negligence on the part of the plaintiff. In the event the jury or judge finds that the plaintiff was guilty of contributory negligence and the contributory negligence caused or contributed to the happening of the accident, the plaintiff's claim for damages will fail regardless of the extent of damages. The plaintiff's actions would be considered under the reasonable person standard, the same standard used to prove the negligence of the defendant originally.

Assumption of the risk

      There is another defense to liability that is commonly called assumption of the risk. If a person is aware of and understands a particular risk and should have avoided the risk if using ordinary care, yet proceeds to act in a manner that encounters the risk and gets injured as a result, he/she may not recover damages. This doctrine is very similar to contributory negligence. The more obvious the risk, the more likely a jury will find that a person with reasonable care should have avoided the particular risk. However, if a plaintiff is not aware of the risk, he/she cannot be deemed to have assumed the risk. An experienced personal injury attorney can be very helpful in attempting to convince a jury that assumption of the risk does not apply to particular facts.

Brake failure

      An owner of a motor vehicle is required to periodically inspect a vehicle for brake problems and to properly maintain a vehicle. Therefore, brake failure would be deemed evidence of negligence. However, if the owner can show by affirmative evidence that the brake failure was sudden and unexpected in spite of adequate maintenance and inspection, such brake failure may be used as a defense to a claim. However, brake failure defenses need to be examined closely by an experienced personal injury attorney because proper discovery of past repair records and/or warranty work performed may well demonstrate failure to properly inspect or maintain a vehicle. For example, it may be possible for the experienced personal injury lawyer to prove that the owner had reason to suspect brakes might fail because of prior problems with the vehicle. The operator of a vehicle, as opposed to the owner, would need to show that he or she had no advance warning of brake failure in order to avoid possible liability. The duty of inspection by an operator may be met by testing the brakes during normal operation and determining them to be in good working order. In other words, the operator of the motor vehicle may be held to a lower standard of care depending on the circumstances.

Sudden incapacity

      If an operator of a vehicle can demonstrate that he or she had an unforeseen incapacity that rendered him or her unable to safely operate a motor vehicle, this sudden incapacity might provide a defense for the driver. The classic case of this might be when a person had a seizure, heart attack or a stroke while driving and had no prior history of the same and, therefore, had no reason to suspect it might happen while driving. However, if a driver of a motor vehicle had reason to know of a possible incapacity, the injured party may still be able to recover damages because the incapacity might be deemed to have been foreseeable.

Rebuttal to defenses

Last clear chance

      In the event the plaintiff proves negligence on the part of the defendant and the defendant also proves contributory negligence on the part of the plaintiff, all hope is not lost for the plaintiff if the plaintiff can prove the defendant had the last clear chance to avoid the accident. This last clear chance doctrine indicates that a plaintiff who was contributorily negligent may still recover damages if the plaintiff can prove the defendant had a fresh opportunity of which the defendant was aware to avoid the accident but failed to do so. This doctrine is not available often because it does require the defendant to be aware of the danger and there be something new or independent to afford the defendant the ability to avoid the consequences of his/her original negligence and the plaintiff's contributory negligence.

Comparative negligence

      Unfortunately, neither Maryland nor the District of Columbia have adopted a comparative negligence statute. In jurisdictions where comparative negligence is a consideration, the jury would be allowed to apportion damages based upon the relative negligence of the parties depending on circumstances. However, until these jurisdictions do allow the jury to consider comparative negligence in any award, unfortunately each jurisdiction remains a contributory negligence and assumption of the risk jurisdiction whereby proof of such defense becomes an absolute bar to any recovery. This is a complicated area of the law and an experienced personal injury attorney should explain this to you in detail before filing a lawsuit on your behalf.

• Learn more about Vehicles Accidents
• Learn more about Medical Malpractice
• Learn more about Premises Liability
• Learn more about Products Liability
• Learn more about Wrongful Death
• Learn more about Survival Actions
• Contact Foran & Foran, P.A. Today

The legal information on this site is not intended to be legal advice.  Contact one of our experienced personal injury attorneys or lawyers today to get specific information and answers for your specific situation.