Other driver’s duty of care
Car drivers and truck drivers have a fundamental duty under the law to use the utmost care, and the level of diligence of cautious persons. This is referred to as the common law duty of care. Acting below the common law duty of care and causing injury is called common law negligence. In addition to the general common-law duty of care, there are some specific standards of care set out in statutes.
Actions below the standard of care
If another driver has acted below the common law duty or below a statutory duty, and caused injuries, then the other driver is a rule-breaker, and the other driver’s insurance company is liable for the injuries. The most common claim made by a personal injury lawyer in a car accident case is for negligence. When a specific law was broken, the negligence claim can be proven under a “negligence per se” analysis.
In an Oregon common law negligence case, liability for a motor vehicle accident depends on whether the other driver’s conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School Dist., 303 Or 1 (1987).
In addition to the common law negligence analysis, the defendant may be liable because an obligation under a statute was not met.
It is possible but unusual for a defendant to have acted intentionally, but intentional actions can result in liability. For example, Cook v. Kinzua Pine Mills Co., 207 Or 34 (1956) involved the defendant either carelessly or intentionally driving a log truck into plaintiff’s car.
Reasonable prudent person
The standard is that of a reasonably prudent person. The reasonable and prudent person accepts the actual traffic hazards, and anticipates dangers.
Car accidents are a foreseeable risk of driving on a public highway. A driver should foresee the risk to third parties. This requires reasonable care on a public road. Negligence can happen by negligent action, or by not taking the action a reasonable person would have done.
Rule breaker defendant
The best way to win a car accident case is to show that the other driver violated a rule. Many of the rules are in the statutes. Violation of a rule results in negligence per se. Negligence per se is not a separate claim, but instead is an evidentiary rule that supports the negligence claim. Specifically, if the defendant violated the statute this is evidence of conduct below the standard of care, because we are all supposed to follow the law. Such evidence is given great weight by the jury.
When the law sets out the standard
When a particular law sets out the standard of care, the Judge will instruct that a violation of that law is evidence that the defendant was negligent. There are two requirements:
- the injured person is a member of the class intended by the legislature to be protected, and
- the injury is of a kind which the statute was intended to prevent.
These requirements are set out in the cases Miller v. City of Portland, 288 Or 271 (1980) and Beeman v. Gebler, 86 Or App 190 (1987).
If both requirements are met, then a violation of the law is negligence per se unless the defendant proves that his conduct was reasonable under the circumstances even given the violation of the law. Barnum v. Williams, 264 Or 71, 79, 504 P2d 122 (1972).
There are some situations where it is reasonable to not follow the law, and these few situations illustrate how the negligence per se analysis is carried out: it is a presumption, not an absolute rule of liability. Nevertheless, it is straightforward and effective to argue that the rule-breaker was negligent.
Another article will comment on examples of statutory liability.
This post written by E. J. Simmons, a car accident attorney who handles serious personal injury cases.