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Most traffic accidents in the United States are rear end collisions.  In fact, Federal research studies warn that 40% of all motor vehicle accidents in this country involve a rear-end collision.

Many of these rear end crashes happen at slow speeds, like in parking lots or school pick-up zones. However, rear-end crashes are also known to happen at very high speeds, when serious or fatal accidents occur on Florida highways or toll roads like Alligator Alley.   When a rear-end collision occurs at high speeds, the chances of there being more than two vehicles involved in the accident increases, creating a domino-effect or “pile up.”

In cases such as these, it can be very difficult to determine who was at fault for the collision.

Rising Number of Fatal Car Crashes

Unfortunately, when one vehicle is moving at a high speed, or where there is a great disparity in the size and weight of the vehicles (like a big rig rear-ending a small sedan), a rear end accident can be fatal.

Even with today’s new car designs, like crumple zones, we know more and more fatal motor vehicle accidents are happening in this country. See, “Deadly car crashes are on the rise again, hitting a 9-year high ,” written by Nathan Bomey and published by USA Today on October 5, 2017.

These fatalities are leading to growing concerns over the causes of these crashes – and who is to blame for causing these accidents.  Some experts are pointing to speeding and distracted driving.  Others are concerned about drivers and passengers wearing safety belts.

Who Is Legally at Fault?

For an auto accident claim to be adjudicated, either in settlement or in the courtroom, a determination has to be made about fault (usually in terms of percentage fault) and damages (amount and types, like lost wages, pain and suffering, etc.).  For those involved in a rear end collision, it is important to understand that in Florida the rear driver is presumed to be negligent or presumed to be the at fault driver.

This means that unless the rear driver can overcome that legal presumption and prove otherwise, the rear driver in Florida will be held at fault for the crash.  This is called a legal “presumption of negligence.”

It is important to understand that in Florida the rear driver is presumed to be negligent or presumed to be the at fault driver.

1.      Presumption of Negligence

Under Florida law, the “presumption of negligence” is a legal doctrine that has been established by our courts.   See, Jiminez v. Faccone, 98 So. 3d 621 (Fla. 2d DCA 2012); and Seibert v. Riccucci, 84 So. 3d 1086 (Fla. 5th DCA 2012).

Under this doctrine, the judge in any rear-end accident claim will assume the rear driver is at fault unless the rear driver presents evidence supporting a reasonable explanation of why he or she was not negligent.   The legal doctrine of presumed fault allows a plaintiff in a rear-end case to only have the burden of proving there was an accident, and that he or she was hurt or damaged as a result.   It does not place the burden on the plaintiff to show how and why the rear-end collision took place.

This burden is left to the rear driver (the defendant).  Under the presumption of negligence doctrine, if a defendant, the rear driver, wants to rebut the presumption of negligence he or she has the responsibility of (1) providing evidence that contradicts the plaintiff’s version of the accident, or (2) give evidence that excuses what happened by explaining how he or she could not avoid the crash.

If the defendant cannot prove the accident happened in a way which contradicts the plaintiffs version or show how the crash was unavoidable, then he or she cannot overcome or “rebut” the presumption of negligence.  In this situation, the presumption becomes a fact, and the rear driver will be found to be the proximate cause of the accident and at fault for the collision. Meaning, the judge will hold the rear driver liable for the crash and its resulting damages.

Why Does Florida Law Have A Rebuttable Presumption?

The courts have held this is the most efficient way to get to the truth in rear-end accident cases.  The rear end driver is considered to be in a better position to provide evidence and facts on what occurred than the driver up ahead, who may have had no knowledge of any circumstances until the crash occurred.

See: The 5 Most Popular Car Accident Lawsuits That Go to Trial in Florida.

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).

2.      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:

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.)

Read – Are Florida Insurance Adjusters On Your Side?

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.

For more on rear end accidents, including common causes and common injuries that result from these accidents, read our earlier article “Rear-End Collisions in Florida.”

What Should You Do?

If you or a loved one has been involved in a rear end collision, then it is important to be aware of the “presumption of negligence” doctrine. However, keep in mind it is not an absolute guarantee.  Rear drivers can “rebut the presumption” and there are many ways to do so.

Having an experienced Florida car accident lawyer by your side can be invaluable in pursuing your claim.  That is because, you can expect the insurance adjuster will tell you that there insured is not to blame for the accident and give you reasons why and how the presumption of fault can be rebutted.

A good piece of advice if you or a loved one are injured in a rear-end car accident is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these car accident claims. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.


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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