INVESTIGATING THE SINGLE VEHICLE ACCIDENT By Michael B. Moore, Esq.
Why is it important?
Tens of thousands of people are killed on seriously injured in motor vehicle accidents each year in the United States. The consequences for the accident victims and their families are devastating: Loss of a loved one, severe pain, inability to work and huge future care expenses. Often these people go unrepresented and uncompensated despite the existence of meritorious (but unknown) claims based on a defect in the motor vehicle involved or a dangerous condition of the roadway. An attorney may reject this type of case based on the initial impression that the sole cause of the accident was the fault of vehicle driver, who may be uninsured or even the victim himself. A thorough, prompt investigation of the accident by the plaintiff's attorney will, however, often disclose legitimate claims that should be pursued.
When analyzing the single-vehicle accident, plaintiff's attorneys are usually more experienced in assessing the actions of the driver than the more subtle effects of an unsafe vehicle or a dangerous roadway. However, traffic safety experts have long recognized that there are three potential causes of single vehicle accidents and injuries: The driver, the vehicle and the roadway. The plaintiff's attorney is often the only available resource to provide the substantial time and money necessary to conduct a proper investigation. Such an investigation will either disclose valid claims leading to fair compensation for the injured party or prevent unmeritorious claims from clogging the justice system.
The Scope of this Article
This article concerns the informal, prelitigation investigation undertaken when the attorney is deciding whether or not to accept and/or pursue the case. Formal discovery after litigation is commenced is beyond the scope of this article.
Although the focus is on single-vehicle accidents, these suggestions should also be useful in most multi-vehicle accident cases. This article will briefly describe potential theories of vehicle defect and roadway hazard and then give examples of both based on cases handled by the author. The article will then describe basic procedures and sources of information for the investigation which can serve as a checklist to assure that all necessary steps have completed. Potential Theories
There are two general types of vehicle defects: Those that cause a collision and those that fail to protect the occupant in the event of an accident or actually make the injuries more severe.
Suspicion of an accident-causing defect is raised when the investigation discloses an unexplained loss of control resulting in a collision. In such cases, the steering, suspension and braking systems are prime suspects. Examples of this type of accident include: (1) Vehicle rollover on smooth pavement during foreseeable emergency steering maneuvers due to vehicle instability (2) unintended sudden acceleration and (3) tire failures.
The second type of vehicle defect case involves the failure of the vehicle to provide reasonable occupant protection in the event of a crash. These cases are often characterized as (1) crashworthiness, (2) second collision, or (3) enhanced injury cases. Courts have recognized for decades the responsibility of vehicle manufacturers to provide reasonable protection against injury in the event of a statistically-inevitable accident.
Recognition of injury-causing vehicle defects can often be difficult but a proper investigation will disclose telltale clues. Severe injury may be caused by the intrusion of part of the vehicle into the occupant compartment. For example, a 15 year old boy was rendered a quadriplegic in a rollover when the right front corner of the pickup truck roof crushed down on him, leaving his father and siblings without serious injuries.
Disproportionate severity of injury to occupants depending on their seating positions is another clue. For example, a young woman provided with only a lap belt for her position in the rear center seat suffered severe spinal injuries during a frontal collision while the other occupants with lap/shoulder belts suffered only minor injuries. Medium force impacts should not result in catastrophic injuries, particularly if the occupant is properly belted. For example, a tall man escaped injury from a medium frontal impact while his short wife had her neck broken by her shoulder harness which passed right under her chin.
Ejected occupants are many times more likely to suffer severe injury or death than those who remain in the vehicle. For example, a passenger in a sports car rollover was ejected on the second roll through a faulty roof panel and sustained severe brain damage and the loss of a leg. His friend was retained in the vehicle for ten additional rolls and walked away without serious injury.
Occupants may receive severe injuries when safety devices malfunction. For example, a woman sitting close to the steering wheel suffered brain damage due to the excessive force of her airbag's inflation while another woman suffered catastrophic injuries in a separate accident when her airbag inflated too late in the accident sequence.
In short, the mechanisms by which vehicle defects can cause accident or enhance injuries are myriad and often apparent only after a thorough investigation.
Similarly, the ways in which a dangerous roadway can contribute to causing an accident are numerous. Traffic safety engineers confirm that poorly built highways will inevitably lead to accidents. Curves that are too sharp, embankments unprotected by guard rails, low lying roadway subject to flooding, inadequate or confusing warning signs or markings are some examples. Assessing potential liability of the entity responsible for the road can be done only after a full investigation.
Source of Information: Witnesses
When an attorney is contacted in connection with a catastrophic single-vehicle accident, the attorney must immediately gather and preserve the evidence and develop all potential theories of liability. Prompt action is often the key to success in these endeavors.
Witnesses to what occurred before, during and after the accident are obvious sources of information. Witnesses should be identified, located, contacted and statementized as soon as possible to minimize the risks of unavailability and fading memory. Do not rely on statements contained in traffic collision reports by local or state police since they may be incomplete or inaccurate. For example, the CHP report of an accident on a dangerous curve resulting in quadriplegia quoted a witness as saying that the vehicle had hit a deer. When contacted the witness said that he had merely commented that the extreme damage was similar to what could be caused by hitting a deer. For another example, a CHP report stated that a catastrophically injured victim was not wearing his seatbelt during the crash when in fact the first Good Samaritan to reach the vehicle had unbuckled the seatbelt while attempting to assess the injured party.
Although the attorney should talk to the witnesses to assess their presentation and veracity, statements should be taken by experienced investigators. The statement may later need to be authenticated with court testimony and the attorney should not be placed in a conflict of interest position when acting as both the attorney and the witness. Consider taking 'negative' statements from witnesses who deny a recall of crucial facts to assure they don't change their story later on.
All witnesses who have had contact with the victims, the scene or the vehicle should be contacted including the occupants themselves, eyewitnesses, ambulance attendants, tow truck operators, investigating officers, media reporters and photographers and treating doctors.
Documentation that can identify these witnesses and their role in the accident should be promptly reviewed: Traffic collision reports and photographs or videos by local or state law enforcement, fire departments, ambulance crews or tow truck operators; the investigating officer's field notes; recordings of 911 calls; written and televised reports of the accident and the injured person's medical records. In one case, references in the medical records to asphalt found in the rollover victim's scalp provided confirmation that his seatbelt had allowed his head to go out the window and his neck to be broken. Often several sets of law enforcement or fire department officials respond to the accident but are not identified in the official reports. These key witnesses can often be identified through the on-the-scene photographs.
The witnesses should be questioned carefully about how the crash occurred, the condition and operation of the vehicle immediately before and after the crash, how the occupants were injured and what injuries they suffered, the condition of the roadway approaching and at the accident scene and seatbelt use.
Sometimes information from witnesses can make all the difference. For example, a man was killed in a remote part of California when his vehicle went out of control and struck a tree in an unwitnessed accident. Accident reconstruction disclosed that one of his tires likely failed due to an improper repair. The company that rented him the vehicle denied knowledge of any problem with the tire and blamed the dead man for making the repair himself. By investigation, a prior renter of the vehicle was located in Japan who verified that he had the tire patched on a trip to Yosemite and complained about the 'bad tire' to the rental agency when he returned the vehicle several days before it was rented to the dead man.
Source of Information: The Vehicle
The motor vehicle is often the most important item of evidence in any single-vehicle accident case. For example, scratches on the exterior will reveal the direction and number of rollovers, seatbelt load marks will reveal whether the seatbelt was worn and head strike marks or bloodstains on the vehicles interior will disclose how the occupant moved and how the injuries were inflicted.
Immediate action must be taken to locate and preserve the vehicle without alteration from its condition immediately after the accident. If the vehicle is destroyed or altered, it may be impossible to understand the accident and to prove the case. Vehicle owners will often have their vehicles repaired promptly after an accident or, if the vehicle is totaled, it may be turned over to the insurance company which will sell it for salvage. Therefore, the attorney should identify the present custodian on the vehicle and immediately notify him by telephone and letter of the importance of maintaining the vehicle in its present condition. The attorney should offer to pay for storage, and if necessary, purchase the vehicle to prevent its destruction. If the custodian refuses to cooperate, it may be necessary to obtain a temporary restraining order from the court to preserve the vehicle.
Even if substantial time has passed from the accident to the first contact with any attorney, the attorney should persist with his or her efforts to locate and preserve the vehicle. For example, in a severe brain damage case, the pickup truck involved was tracked from the client to the insurance company to a salvage yard to a subsequent purchaser in Oregon. The vehicle was located just as the new owner was starting its disassembly.
When the attorney takes control of the vehicle, it is important that all components available be preserved as well. For example, a wheel that came off during the accident or a door that was pried off by the 'jaws of life' may be the key to understanding the cause of the accident or the injuries.
Once possession of the vehicle is obtained, it should be safeguarded properly. Placement in a secured storage facility will restrict access and also provide a convenient location for later inspections. In one potential seatbelt failure case, the vehicle was stored in a wrecking yard instead of secured storage and the attorney and expert discovered at the inspection that it had been used as a home for the 'junkyard' dogs which had been chewing on the seatbelts.
Pre-accident repair and maintenance records are often useful to determine prior malfunctioning of the vehicle or identify a modification to the vehicle that contributed to the accident or the injuries. These documents should be promptly retrieved from the owner, the vehicle or the maintenance/repair facility in question. For example, a doctor's wife in Beverly Hills apparently drove into a tree without stopping. Her brain damage included a lack of memory about the accident but the repair and maintenance records showed a prior history of intermittent brake failure. That explained the accident!
Ultimately, a claim may be made based on the failure to warn of a vehicle defect. For this reason, the owner's manual, brochures, instructions, warning labels and stickers provided with or on the vehicle should be obtained and examined. As soon as the vehicle is located, it should be thoroughly photographed and video taken to document its condition.
During the inspection of the vehicle by the attorneys, investigators or experts, care should be taken to do no disassembly or destructive testing without notifying potential defendants and affording them an opportunity to attend. Failure to do so will inevitably result in later charges that the vehicle was improperly altered during the inspection.
Once the above-described investigation has been completed, the attorney will likely focus or retain defects or failure modes as potential causes of the accident or the injuries. More information about those particular problems can often be obtained from a variety or sources including the National Highway Transportation Administration, (www.safercars.gov), the Center for Automotive Safety (www.autosafety.org), the Insurance Institute for Highway Safety (www.iihs.org), the ATLA Product Liability Exchange (www.atla.org) or the Attorney Information Exchange Group in Birmingham, Alabama.
Source of Information: The Accident Scene
There is no substitute for a personal visit to the accident by the attorney to further his or her understanding of how the single-vehicle accident occurred and what role, if any, the roadway played in it.
The inspection, photographing and videotaping of the roadway must be done promptly. Often important physical evidence relating to this particular accident (such as skid marks, debris, disturbed dirt in the median or on the shoulder) may be subject to destruction by weather, traffic or the passage of time. At any time, the roadway surface may be replaced, signs or striping added or removed or trees or bushes interfering with sight distance cut or removed. For example, in one case involving paralysis from a dangerous roadway shoulder, the entire roadway, the shoulder and the overpass was replaced within months of the catastrophic rollover accident.
The attorney should not succumb to the temptation to rely on police photographs of the accident scene. These photographs may be of poor quality or may be limited in scope to the immediate location of the wreckage without documenting the roadway approaching the accident scene. In addition to photographs taken during the attorney's investigation, aerial photographs and Caltrans photo logs should be obtained to document the condition of the highway.
A diagram of the accident scene providing the location and measurement of roadway features and physical evidence should be completed for use in later reconstructing the accident.
Once the basic facts of the accident scene have been established and documented, the attorney will want to ascertain the pre-accident history of the roadway, particularly with respect to prior accidents. Numerous prior similar accidents can be persuasive evidence of a dangerous condition as well as notice to the governmental entity operating the roadway. Data from past accidents which have been investigated and reported by local and state police are gathered in SWITRS (Statewide Integrated Traffic Records System). Local ambulance services and fire departments often are a productive source of information regarding the past accident history of a particularly troublesome location. For example, in one case involving a Marine corporal paralyzed by an accident on a dangerous curve, the local ambulance service had sent a letter to his state representative (with a copy to Caltrans) demanding to know when the curve would be fixed because he was sick and tired of going out there to pick up broken and battered bodies.
Media who reported the accident should be contacted for photographs and videos of the accident scene, including 'out-takes' that were not actually published or broadcast. For example, in a rollover case involving brain damage and paraplegia, it was disputed whether the vehicle rolled on the roadway due to its instability or simply drove into a ditch. Although the roadway had been resurfaced after the accident, a local newspaper reports had photographed the roadway after the accident and one of his photographs clearly showed a fresh gouge on the roadway surface from the rolling vehicle.
When the attorney has completed enough investigation to focus on particular dangerous conditions of the roadway, he or she should consult with a traffic safety engineer to determine whether or not the particular condition is unsafe based on accepted traffic engineering principles. The attorney may also consult the Caltrans Design and Traffic Manuals (www.dot.ca.gov) and AASHTO, The American Association of Highay Transportation Officials (www.transportation.org).
Source of Information: Early Use of Investigators and Experts and Attorney Networking
When the attorney is directly involved in the investigation, use of experienced investigators to locate the vehicle, take statements from witnesses and photograph the accidents is advisable. Once the attorney has narrowed his or her focus to particular potential vehicle defects or roadway conditions, consulting with experts in relevant fields is often necessary before the attorney can complete the analysis or draw reliable conclusions. Depending on the facts disclosed by the investigation, review of the case by, and consultation with, the following types of experts is often indicated: Accident reconstruction, vehicle design, traffic safety, biomechanics and human factors. Often the attorney will discover that the experienced expert has worked on many similar cases and can guide the attorney through the completion of the investigation.
Similarly, networking with attorneys known to be experienced in the field in question or identified through local, state or national trial lawyers associations will reveal a treasure trove of information.
By conducting a prompt, thorough investigation of the single-vehicle accident, the attorney involved will further the justice system either by establishing valid claims for deserving people or by ruling out non-meritorious claims that should not be pursued.
Law Office of Michael B. Moore (415) 956-6500 (Tel) 100 Spear Street, Suite 1640 (415) 965-6580 (Fax) Serving the Bay Area and Beyond San Francisco, California 94105 firstname.lastname@example.org