Occasionally every plaintiff’s trial lawyer will be offered the opportunity to take a case which may look good but is really a stinker. The corollary is also true: sometimes what appears to be a stinker can in reality be a good case which should be taken to court. A recent rear end collision case which resulted in a death reminded me of this.
The case is called Itiat v Foskey. In that case a tow truck suddenly changed lanes on Interstate 10 in the driving rain and slowed down. A following vehicle, operated by Mr. Itiat rear ended and crashed into the back of the tow truck and Mr. Itiat died. Because it is presumed that the rear driver is at fault when he runs into the lead vehicle, many good lawyers would have turned this case down. In fact, the trial court granted the tow truck a summary judgment, which meant the Tow Truck driver was not at fault. This holding was reversed on appeal. This means the jury gets to decide who was responsible for the wreck, and it may decide the tow truck, or Mr. Itiat, or both were responsible.
There is a collection of cases in Florida where the presumption disappears because there is a plausible factual basis to explain why the Following driver was not at fault. In each of these cases there should be no directed verdict advising the Jury to hold the following driver to be negligent.
Here they are:
- an abrupt and arbitrary stop by the lead car at a time and place where it could not be reasonably be anticipated. This is the classic “GOTCHA RULE” which I previously wrote about in another Blog.
- an unexpected sudden lane change by a lead car, Itiat v Foskey, supra, and Allford v Cool Cargo
- a sudden mechanical failure, like a brake failure by the following car
- an illegal, and therefore unexpected stop, as on the Interstate outside municipal limits;
- a failure to remove or warn of a disabled vehicle which has either broken down or run out of gas, in a location and at a time likely to cause a following driver to encounter it without adequate time to safely change lanes or stop. I wrote about this type of rear ender here.
The lesson here is that a careful investigation into the facts of a rear end collision may reveal that the following driver was not totally, or maybe minimally at fault when he rear ends another car in an accident. An experienced trial attorney may be able to help. Also, if you have been sued for rear ending the lead vehicle, you may inadvertently waive your right to a counterclaim if it is not promptly filed.
