Last Update: 2/10/19
Learn who is presumed to be at fault, the average settlement value of rear end car accident, and how to get a settlement.
Car accidents (and truck accidents) involving a “rear-end collision” usually happen as a result of a driver who fails to stop the vehicle and crashes into the vehicle in front of it (a common cause is some type of distracted driving, like texting while driving or talking on a cell phone). In some rear-end crashes, there is a chain reaction involving several cars where one vehicle strikes another in the rear propelling it into a third vehicle.
According to the National Safety Council and the National Highway Traffic and Safety Association (NHTSA), there are over 2.5 million rear-end crashes each year. A high percentage of the drivers causing rear-end collisions are between the ages of 18 and 24.
What Are The Common Causes of Rear-End Collisions?
Rear-end accidents are the most common types of crashes that are filed with car insurance companies today. Some are minor accidents (where a low speed collision causes only minor injury to the car’s bumper); others are serious car accidents where people are severely hurt or even killed (where a high speed car accident causes the air bags to be deployed and serious bodily injuries).
Research by the National Highway and Traffic Safety Administration, among others, confirms that most rear-end accidents happen because of certain dangers. Meaning, issues or conditions that happen again and again, including:
- Tailgating, where the driver is driving too close to the car ahead of him;
- Driver inattention or distraction, where the driver fails to be alert and ready to respond to traffic;
- Driver intoxication, as the driver is under the influence of drugs or alcohol. More and more often, drivers are getting behind the wheel in Florida compromised by prescription drugs, including pain medications as well as Over the Counter drugs like cold and flu medications.
- Weather conditions that make the streets more dangerous due to slippery surfaces or hazards like fog where visibility is compromised for drivers;
- Road defects, where physical hazards like pot holes or debris from a recent storm can cause a driver to brake or spin out of control, causing an accident;
- Children or animals that run into the path of traffic, causing an accident as drivers try to avoid hitting them;
- Pedestrians jaywalking or otherwise moving into the path of traffic, causing an accident as drivers try to avoid hitting them;
- Construction zones, where road construction or work zones create temporary hazards for drivers;
- Faulty brake lights or lights that fail to work, leaving the rear driver unaware that the car ahead is slowing down or stopping;
- Faulty Brakes; and
- Vehicle breakdowns, where a driver loses the ability to drive his car suddenly due to things like a blown tire or a failure in the electrical system shutting down the engine.
Quick Tip: The Average Settlement Value of A Rear-End Car Accident Claim Is $20,000.00 (Details)
Florida Law On Following Too Closely
Several years ago, Florida legislators were concerned with drivers following too closely and causing serious accidents. They came up with Florida Statute 316.0895, which states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway.”
Click here to read the full statute on the official Florida Legislature site.
What Is The Negligence?
In a rear end accident, the insurance adjuster will be looking to find fault on the part of the claimant as well as confirming the liability of his policyholder. In a rear end car accident, most will assume that the rear driver is at fault. This may not be true.
Negligence in a rear end car accident can occur several ways, including:
- failing to pay attention to the road and look out for hazards;
- failing to stop within a reasonable time;
- failing to drive at a reasonable speed (based not just on posted speed limits but also on road conditions);
- failing to maintain control of the vehicle;
- failing to yield the right of way;
- failing to use turn signal(s); and
- failing to follow at a safe distance.
Each accident will need to be evaluated on its own merits to determine what driver was to blame for causing the rear end crash.
Presumption Of Fault in a Florida Rear-End Car Accident
In Florida, there is a rebuttable presumption that the operator of a vehicle which rear-ends another vehicle is at fault for causing the accident. However, the rebuttable presumption can be overcome with evidence that the operator of the front vehicle unexpectedly stopped or slowed down when there was no reason for a motorist traveling behind to anticipate that the front vehicle would stop or slow down. The presumption of negligence can also be overcome with evidence that the operator of the vehicle that was struck suddenly changed lanes, thus causing the accident.
Once the driver who rear-ended the vehicle presents evidence sufficient enough to overcome the presumption of negligence, then it is up to the jury to determine who is at fault. There have been instances where the driver of the front vehicle has been found 100% at fault for causing the collision. Other times, juries have found both motorists at fault under the doctrine of comparative negligence.
In the vast majority of cases, the issue of fault in rear end collisions is not contested; either the driver of the rear vehicle admits fault or does not seriously contest it. However, the at-fault driver, or his or her attorney and/or insurance company, will dispute the nature and extent of the injuries allegedly sustained by the driver or passengers in the vehicle that was struck from behind.
Why Have The Presumption of Negligence Doctrine?
Over the years, many rear drivers have challenged this legal doctrine, arguing that it is unfair for the courts to assume there is fault and not make the accident victim/plaintiff prove that basic element of a negligent claim.
In Florida, there are four basic elements of any negligence case: (1) duty; (2) breach; (3) cause; and (4) harm. See:
- Fault, Blame, and Damage Claims: Contributory Negligence in Florida;
- Why Does It Matter If Someone Wasn’t Acting Reasonably At The Time Of An Accident?
The “presumption of negligence” doctrine takes away that third element (cause) when there is a rear-end negligence claim.
Rear-drivers and their defense lawyers argue that this an unfair exception from the requirement of having to prove four elements in order to find someone is negligent under Florida’s personal injury law.
The courts have two basic answers to this argument.
First, as discussed earlier, there is the practical efficiency of the presumption here. In rear end collisions, all too often the front driver has no awareness or knowledge of what is going on behind him or her. The rear driver is in a better position to know what happened, and to investigate the event. See generally, Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla.2000) (explaining origins of rear-end presumption).
However, there is also a secondary purpose for the “presumption of negligence” doctrine that is given by the Florida courts. From the perspective of Florida’s judge, the “presumption of negligence” in rear end collisions supports a driver’s duty to operate his or her vehicle in a reasonably safe manner so as to avoid collisions with forward objects. It’s seen as important to public policy.
As explained by the Florida Supreme Court in Birge v. Charron, 107 So. 3d 350, 362 n 19 (Fla. 2012), “…. drivers on Florida’s roadways owe a duty of reasonable care not only to those driving in front of them, but also to those who are following.… As a matter of public policy, we want all drivers to obey all traffic laws, not just the prohibition against following too closely.”
Presumption of Negligence Is Used at Trial and In Settlement Negotiations
For most people involved in a Florida rear-end collision, the “presumption of negligence” is a legal doctrine that comes into play only if the case becomes a lawsuit and that lawsuit makes it to the jury. This is a legal doctrine that controls not only the evidence in the courtroom and how it is presented, but also in the instructions given to the jury before they begin deliberations.
However, in any rear end collision claim, understanding this burden of proof can be helpful in successfully negotiating a resolution to the matter. If there are informal settlement negotiations or a formal mediation, knowing the impact of this legal doctrine is a powerful tool for a plaintiff (it can be leverage for the plaintiff).
(Note: Insurance adjusters and defense lawyers know that the rear driver is presumed to be at fault under Florida’s negligence law, but may not explain this fact to the accident victim, as they have no duty to do so. Their ethical duties align with their client, the rear driver.)
After a rear end car accident, the injured victim will need to file a claim for damages with the insurance carrier representing the at-fault driver. It is the responsibility of the accident victim to gather proof to support his or her claim that the insurance carrier’s insured was the cause of the crash.
In a rear end accident, the police report filed by the officers first on the scene will be very important to the accident victim. This investigative report will be filed with confirmation of things like the location of the vehicles at the time of the crash; the weather conditions; if the other driver was impaired in some way, etc.
However, a knowledgeable accident victim will not rely solely on the police officer’s file for support of his or her claim. It’s important for the rear end accident victim to do his or her own leg work and gather evidence showing that the other driver was liable for what happened. Additionally, the accident victim will need to gather proof of his or her damages.
What is the best way to do this? Rear end crash victims can use their smartphones at the scene, as well as taking steps later to gather:
- incident reports by firefighters or paramedics;
- witness statements by passengers in either vehicle;
- witness statements of bystanders;
- medical records establishing injuries and treatment; and
- lost wages documentation.
How Much Evidence Does The Rear Driver Have To Show To Rebut The Presumption?
The rear driver does not have to prove every single aspect of the accident, or negate every possible inference that he may have been at fault in the crash. Under Florida law, the rear driver has to present sufficient admissible evidence to the jury that fairly and reasonably shows that the rear driver was not negligent.
When a rear driver is able to meet the requirements of his or her burden of proof, then the case is brought to the jury and the plaintiff does not get an automatic win in the form of a “directed verdict.” Meaning, both sides get to present their case and have a jury return a verdict.
In Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007), the court ruled that the presumption of negligence is rebutted, if the rear driver presents “evidence which fairly and reasonably tends to show that the real fact is not as presumed.”
The Case of the Car Parked on the Shoulder
A few years ago, Marilyn Cronan was involved in a rear-end collision with a vehicle in which Yolanda Marcellus was a passenger. Yolanda sued Marilyn for damages she sustained in the crash. The case went to trial and the jury verdict went to the defendant, the rear driver, Ms. Cronan.
Yolanda appealed the case. She argued that the judge should have instructed the jury on the “presumption of negligence” and because the judge declined to do so, the appellate court should reverse the jury verdict. The appellate court ruled against her.
This was because the rear-driver, Ms. Cronan, had rebutted the presumption. She presented evidence as the rear-driver defendant that negated any presumption of negligence on her part. This was admissible evidence which demonstrated the car in which Yolanda was riding had been parked or stopped on the shoulder of the roadway. It was not in the proper position to move forward in traffic.
So, Ms. Cronan argued, she was not negligent in the accident. She had driven with reasonable care and the front car was at fault.
The appellate court agreed with Ms. Cronan, the rear driver. It was within the jury’s purview to agree with Ms. Cronan’s argument and deny any award to Yolanda. It was proper for the judge to send the case to the jury without the instruction to presume the rear driver was negligent.
The court explained:
If a defendant presents evidence at trial that fairly and reasonably rebuts the presumption of negligence, the issue of the defendant’s negligence must then be presented to the jury for determination without the aid of the presumption. Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007).
What Do Front Drivers Need to Know?
Front drivers should know that when they are in a rear-end car accident, they do not have to gather evidence of fault. They have sufficient evidence to prove their case (they have a “prima facie” case just based on the nature of the accident).
They should also know that the rear driver will be working hard to find evidence to rebut the presumption of negligence and show fault lies elsewhere. It may be with the front driver, like in the case of Yolanda and Marilyn. Or, there may be evidence of other conditions that shift fault away from the rear driver, like road hazards or weather conditions, a mechanical failure in the rear driver’s vehicle, the lead driver’s sudden stop, the lead driver’s sudden lane change, or the lead driver’s illegal or improper stop.
Injuries in Rear-End Collisions
1. Soft Tissue Injuries – Whiplash and Herniated Discs
Soft tissue injuries involve injuries to the muscles, tendons, ligaments, cartilage and the discs between the vertebrae. Hard tissue injuries involve injuries to the bone(s).
Victims of a rear-end collision often suffer injuries to the neck and spine. The majority of injury claims resulting from rear-end collisions involve “whiplash.” Whiplash is defined by the Mayo Clinic as :
“ Whiplash is a neck injury that can occur during rear-end automobile collisions, when your head suddenly moves backward and then forward — similar to the motion of someone cracking a whip. These extreme motions push your neck muscles and ligaments beyond their normal range of motion. Whiplash injuries can be mild or severe. Treatment typically begins with over-the-counter pain relievers and ice applied to the painful neck muscles. If pain persists, prescription medications and physical therapy may be helpful. Most people recover from whiplash in just a few weeks, but some people may develop chronic pain after a whiplash injury.”
Most whiplash injuries heal in a few weeks to a few months. That is why these claims are very difficult to pursue.
Pain and Suffering And a Permanent Injury
Under Florida automobile law, in most cases, a person bringing a claim must have sustained at least one injury that is permanent in order for that person to recover money for his or her pain and suffering, disability, loss of enjoyment of life and mental anguish (emotional distress). Sometimes a whiplash injury is permanent but it is difficult to prove.
If the pain, loss of range of motion, and discomfort persist, a medical provider such as an orthopedic surgeon, a neurologist or a chiropractor will order an MRI of the neck (cervical spine) to see if there is a herniated disc or some other condition that could be causing the problem. A herniated disc claim (commonly known as a spinal disc herniation) can be significant especially if the injured person has shooting pains or numbness down one or both of his or her upper extremities.
Often times a person may have a herniated disc but the condition of the cervical spine on the MRI is such that it is difficult for a radiologist or other specialist to conclude that the herniated disc resulted from the motor vehicle collision. A fairly high percentage of people have herniated discs and do not even know it because the herniations are not causing any symptoms. However, if a herniated or bulging disc causes pressure on the nerves, this can cause shooting pain or numbness in the upper extremities. Usually, such pain will be down one arm.
The same holds true for lower and middle back injuries resulting from rear-end collisions. A person may suffer from back pain but it is usually a back strain which will resolve in a few weeks to a few months. However, if the pain and loss of range of motions persist, then the medical provider will order a lumbar (low back) MRI or a Thoracic (middle back) MRI. Low back injuries are much more common than middle back injuries in rear-end collisions. If there is a herniated disc, the injured person may have shooting pain or numbness in one of the lower extremities.
A person who sustains a soft tissue injury such as a low back strain or whiplash will ordinarily undergo several weeks of therapy and take anti-inflammatory medications. If the injury is severe enough, the doctor may prescribe a more significant pain medication. At times, epidural injections or other pain management modalities will be recommended by the medical practitioner. Often, these injections are done in a series of three over a few months and provide at least temporary relief from the symptoms.
As a last resort, a person with a herniated disc will have to undergo surgery to repair the condition. This entails removing part of the disc material. Sometimes, the entire disc is removed and a person undergoes a spinal fusion where two vertebrae are fused together. This will alleviate pain but may restrict a person’s motion.
A lot of times a car crash, even a rear-end crash can result in a fracture of one or more bones. The nature and location of the fracture will determine the treatment. Some fractures need immediate surgery while others just need time to heal on their own. Fractures in joints such as the hip, shoulder, ankle and knees are more serious as they often result in arthritis later in life in the affected joint. An injured person should thoroughly research the qualifications of an orthopedic surgeon who will perform the surgery.
3. Seat Belt Injuries
Another common injury from rear-end collisions, even those occurring at low speeds, are seat belt injuries. Here, the force of the impact of the rear car slamming into the car in front of it pushes the occupants of both vehicles forward in a way that can cut skin as well as bruise the chest, ribs, collarbones, and internal organs.
Insurance companies are often suspicious of injury claims resulting from a rear-end collision and will require medical confirmation of these injuries. This is particularly true of “soft tissue injuries” described above. Many times a doctor hired by the insurance company will conclude that the person claiming an injury did not sustain a permanent injury from the accident. These doctors may have good qualifications but they make hundreds of thousands of dollars or more from doing examinations on behalf of insurance companies.
Are Injuries Often Disputed?
Although the issue of fault in a rear end collision is not disputed in many instances, the nature and extent of the injuries (usually those to the neck and back) are almost always disputed by the at-fault driver’s insurance company. Which is the reason why most rear end accident claims end without a settlement and the filing of a lawsuit; it’s usually the only way for a victim to get fair compensation with the goal of being made whole again.
Deadline to File a Rear End Accident Lawsuit
In Florida, there is a law that sets a deadline for filing a rear-end car accident lawsuit to recover damages from a car crash. If you do not file your lawsuit by the statutory deadline, then you will be barred from having your day in court.
Florida Statute 95.11(3)(a), states that any action founded on negligence must be filed within 4 years from the date of the car accident. This law is commonly referred to as a statute of limitations.
What Should You Do?
A good piece of advice if you have been harmed in a rear-end car accident, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim, the types and amount of damages you can recover and how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation ?(over the phone or in person) to review your case and answer your questions.
- 5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim
- Settling A Florida Personal Injury Claim Without A Lawyer
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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