How to Determine Liability

How to Determine Liability

Determining liability in a car accident is critical to evaluating a potential personal injury claim arising out of the accident.  Liability for most car accidents is based on a violation of one or more traffic laws by one or both drivers.   For example, one of the drivers might have caused the accident by running a red light or a stop sign, or by veering into the opposite lane of traffic, each of which is a violation of a traffic statute.

One of the best sources for that information is the accident report prepared by the investigating officer.  The accident report will usually provide a description of the accident, the officer’s conclusion as to the specific things that each driver did wrong, and the specific traffic infractions that each party was charged with.   A common drawback to most accident reports is that the investigating officer did not witness the accident but, rather, arrived at the scene only after the accident had occurred.  Thus, the accident report reflects the officer’s attempt to reconstruct what happened based on his observations of the post-accident scene and his interviews of the parties and witnesses.  Another drawback of the accident report is that, in most states, the accident report is not admissible into evidence at a trial for claims arising out of the accident.

Other sources of information as to who was at fault are the parties themselves and the witnesses to the accident.  One can interview each party and witness to the accident.  Also, the parties and witnesses might have already made statements about the accident to others.  For example, the parties and any witnesses might have been interviewed by the investigating officer, who has recorded their statements in his notes.  If that is the case, the investigating officer will typically share those notes with the attorney for each party. The parties might have been interviewed by one or more of the insurance adjusters involved in the case.  A personal injury attorney for a party to the accident is nearly always entitled to a copy of the recordings of the interview of that party. Whether an Abingdon, VA personal injury attorney may obtain the recording of the interview of the other party depends on the specific circumstances and the governing law.

In most states, if both drivers in a car accident were at fault, then the driver who was most at fault is liable for the other driver’s injuries, but only for an amount representing his percentage of fault.  This is called the comparative negligence regime.

In Virginia and a few other states, if each driver bears at least some fault for the accident, then no one is liable.  This legal regime is called contributory negligence.  Most states originally had this regime, but concluded that it was unfair and replaced it with the comparative negligence regime.


Thanks to our friends and contributors from The Law Offices of Mark T. Hurt for their insight into determining liability.

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