Let’s just get this out of the way right up front: every other driver on the road is a maniac, idiot, or worse!
I get it — there a lot of bad drivers out there (que the Dumb and Dumber movie opening scene of distracted limousine driver Lloyd Christmas dangerously and unknowingly swerving into oncoming traffic causing an explosive pile-up accident, prompting his passenger to ask him to keep his eyes on the road.) Christmas responds, “Good idea, there are a lot of bad drivers out there.”
We Often Play the Blame Game After Accidents
The truth is we are all like Lloyd Christmas. We are blamers. The Rand Institute for Civil Justice found in a recent survey that 75% of motor vehicle accident victims blamed someone else for their injuries. Blaming others for an auto accident is our default behavior, but… newsflash… the other driver wants to blame you (and so does their insurer).
What Is Fault and Why Does It Matter?
Determining who is at fault is the most important fact that must be established following an accident.
The legal word for determining fault is “liability.” Liability — that is, a breach of the duty to use reasonable care (i.e., negligence) — is the first and biggest hurdle you must overcome.
Determining fault, however, is not as simple as saying the other driver is 100% at fault or you are 100% at fault.
To establish fault and recovery, each state adopts a fault system that guides liability determinations.
Understanding Pure Comparative Fault in New Mexico
New Mexico is one of twelve states that follow the pure comparative fault system.
Pure comparative fault means that fault (negligence) of each party involved is based upon their respective contributions to the accident. Under this system, fault is apportioned between the parties to determine which parties are entitled to recover and how much they can recover. In other words, the amount of damages you can recover is reduced by your percentage of fault.
Real-Life Examples of Determining Fault
The concept of comparative fault is best shown with some examples:
Driver A and Driver B collide at an intersection because Driver A fails to yield the right of way to Driver B. Driver B suffered $25,000 in bodily injury damages and her $15,000 car was totaled.
- In this scenario, Driver A is found to be 100% at fault. Driver B would thus be entitled to his full $25,000 in bodily injury damages and $15,000 in property damages because he was found to be 0% at fault.
Now let’s assume this same collision occurs, but this time a witness comes forward and says that Driver B was speeding. So even though Driver A failed to properly yield, Driver B was speeding and in doing so contributed to causing the collision.
- In this scenario, Drivers A and B each have fault in causing the collision. Let’s assume the insurance companies find Driver A 70% at fault, and Driver B 30% at fault. Because Driver B had 30% comparative fault, his damages are reduced this same percentage. His bodily injury damages will now be $17,500 ($25,000 x .7) and his property damages will be $10,500 ($15,000 x .7).
Now let’s assume video footage shows Driver B was speeding and texting when the collision occurs. The insurance company determines Drive B is 60% at fault.
- In this scenario, Driver B can still recover even though he is found to be more at fault than Driver A. His damages are reduced by 60%, his percentage of fault so his bodily injury recovery is $10,000 ($25,000 x .4) and his property damage recovery is $6,000 ($15,000 x .4).
Some states bar recovery in the last example in which Driver B was determined to be more than 50% at fault. But, in New Mexico, and other pure comparative fault states, recovery is not barred. The percentage of fault simply reduces the amount of damages by the same percentage.
These examples demonstrate the importance of establishing liability.
But beware — liability determinations can shift dramatically based on seemingly minor facts. Facts determined not only from the physical evidence, but also on what the parties say and do following an accident.
I’ll give you some real-life examples:
I represented an individual hit by another driver at an intersection. Liability wasn’t immediately clear given the facts, but the other driver got out of his car and admitted he was eating a chicken pot pie (who does that?!) and looked down at the time of impact. That one statement was enough to shift liability entirely on the chicken pot pie driver for his negligence. We would never have known that information without his admission.
In another similar accident, I represented a woman hit by another driver. After the collision, the other driver got out of the car holding a fly swatter. He confessed to trying to kill a fly while driving and didn’t see my client. This corresponded completely to the testimony from my client who said she saw him swinging wildly in the car at something.
What to Do After an Accident to Strengthen Your Liability Argument
My point is, after an accident emotions are high. Avoid the temptation to jump out and start making statements about what happened. First check to be sure everyone is OK. If anyone is injured, call an ambulance. Side note- I realize many reading this have already been in an accident. However, for anyone that has not been in accident, it is worthwhile to give some helpful advice about what to do if you get in an accident.
Once you have established everyone is OK, you may need to clear the roadway. However, only do so if safety requires. Otherwise, don’t move the vehicles because those vehicles provide valuable physical evidence that could be important for establishing liability.
Here are some tips of what you should do after an accident that will help strengthen your liability argument:
- Take lots of pictures. Photograph every angle of the vehicles, the roadway, traffic signals, debris, skid marks, and even the other driver.
- Take video. You may miss something in a photograph, but a video helps provide even more evidence. A video also captures audio which might be helpful.
- Talk to witnesses. If there were any witnesses, talk to them and get their contact information. Make sure the police are aware of them.
- Check for cameras in the area. Many intersections now have cameras. Also, look around to see if there are any homes or businesses that might have security cameras that captured the collision.
- Call the police. Be calm and clearly explain your side of what happened. That investigating officer will file an accident report with findings of fault. Be respectful and mindful that what you say will go into a written report that the insurance companies are going to review. This report will be influential in what each insurance company chooses to do so avoid cursing and looking irrational. You want to clearly communicate what happened, as this will help your credibility.
Police reports are not admissible into evidence in a trial in New Mexico because they are considered hearsay documents. The officer can testify to the information, but the report itself is not usually admissible.
- Call your insurance right away. Oftentimes, your insurer can help investigate and guide you on what to do. You have a duty to notify them anyway, so resist the urge not to notify them for fear of rate increases.
- Call an attorney. An attorney can help protect your interests and eliminate the stress of having to deal with insurance companies. They can investigate and ensure your rights are protected.
What NOT to Do After an Accident
Just as important as what to do, is what NOT to do:
- Do not confront the other driver. Resist the urge to give that other driver a piece of your mind. Again, emotions are high, so avoid a situation that could lead to a dangerous confrontation that puts your safety at risk.
- Do not make any statements about your fault in causing the accident. Many factors determine who ultimately should be held at fault for an accident. Avoid making statements such as “it was my fault” or “I should not have been driving so fast” that can be used against you later. New Mexico is a comparative fault state, which means fault can be apportioned to both drivers in percentages. Therefore, admissions or concessions as to liability can be detrimental to you. This is why it is important to hire an attorney who can conduct a complete investigation and protect your rights as to all aspects of the case, including liability.
- Do not give a recorded statement. Soon after an accident, insurance companies will typically ask you to give a recorded statement. In this recorded statement, an insurance adjuster will ask you questions about the accident and your injuries. You should consult with an attorney before giving a recorded statement, particularly if liability could be disputed. Insurance companies often use recorded statements to obtain information designed to limit liability for their insured.
The Role of Speed and Distraction in Accidents
While every accident is different, there are two common factors that cause most accidents: speed and distraction. In liability determinations, insurance companies will always assess comparative fault when speeding and/or distractions were involved.
This means you should consider whether the other driver was going over the speed limit. But keep in mind speed doesn’t always have to be driving over the posted speed limit. Unsafe speed can also include going too fast for road conditions – such as ice, snow, rain, or in construction zones. Speed must always be considered given the situation and conditions.
Distractions are a big issue, especially cell phones. A recent study found that almost 40% of drivers admit texting and driving. You want to investigate whether the other driver was distracted by something. For instance, was the other driver talking or using their phone? Consider also other distractions such as radios, drinks, other passengers, or even chicken pot pies and flies.
Call an Attorney to Protect Your Rights
Finally, never assume the other driver is 100% at fault. I routinely get calls from potential clients that say the other driver is for sure at fault, only to later discover the other driver had a completely different version of what happened, and their insurance is blaming you.
The best thing you can do is call an experienced car accident attorney as they will work with you to conduct a thorough and timely investigation into liability. But, if you choose to handle your claim yourself, follow my advice above and you will greatly improve your chances of winning on liability, and in doing so increase the damages you can are entitled to.
To learn how we can assist you, call our office at 575-300-4000 or use our online contact form to schedule your free consultation today.