Questionafter my son pulled out of driveway and traveled about 200 feet he was rearended and hit an oncoming vehicle. he was ticketed for failure to yield. there is over 150 ft of skid mark prior to impact and about 150 feet after. the person who hit him their ins co is telling me they most likely wont pay because my son was isued a ticket and the other driver says my son just pulled out in front of him.what can i do?? do you think when he goes to court on the ticket he can get out of it when they see the extensive damage to my car and the skid marks which clearly indicate the excessive speed of the vehicle??
Answer
Comparative negligence
Failure to yield auto accident
Deceptive speed auto accident
Speeding car hit me
Auto accident FTYROW
Skid marks accident
Long skid marks show speed
Last clear chance to avoid accident
Dear Sandy,
You have asked about the ticket only, but with that kind of speed behind the accident, your son must have suffered injuries, and so I am going to have to take a lot of extra time to put together an answer that embraces both the defense to the ticket, and, perhaps more importantly, a way to win an injury claim.
This is a tough factual case to win, but I have won some injury cases where the guy with the right of way was speeding. Don’t forget that it is possible to pursue an injury claim EVEN when your son is partially at fault.
I am going to give a full answer just in case this is an injury case, and because those who read this answer will more likely be interested in how to pursue an injury claim if they are ticked for failure to yield right of way.
In short answer to your question, chances are he will have to pay on the ticket, but that WILL NOT PRECLUDE HIS BRINGING AN INJURY CLAIM VERSUS THE GUY WHO HIT HIM. You can read all of this and glean some ideas for his ticket defense.
Note that as for the injury claim part of this, most of the states have comparative negligence, by which your son can win even if he is 49% at fault. In a few states, he could be more than 50% at fault and still win. Of course, his award would be reduced by the percentage of his fault.
In the first place, it was your son's duty to see what was on the roadway to be seen. If he could see down the road a long distance, then why did he not see the other car? If he saw the car and he misjudged the speed, your son is liable.
Where I was able to win is with the theory of deceptive speed, but that theory is only going to work when one of two conditions is present.
First, if your driveway has only a very short distance, and there was no car to be seen, then one could assume that a car coming into view would be traveling at or a little above the speed limit, and your son could have pulled out within his rights.
The only other way that deceptive speed can be used to give your son the right to pull out is where one gets a brief look at the other car, but then it disappears from sight, as in a hill or curve or behind some brush blocking part of the view.
The first driver thinks he should have enough time to pull out based upon the brief view he had. And so he pulls out, only to find that the speeding car has traveled the distance only too fast and is already upon him.
If your son had one of those incidents, then speed can be a defense. But even if speed cannot be a defense to the failure to yield, EXCESSIVE SPEED CAN BE USED TO SHOW WHY THE TORTFEASOR FAILED TO AVOID THE ACCIDENT.
This theory is called the last clear chance doctrine. If a party, through the exercise of care could have avoided the accident, and through his excessive speed he is unable to do so, he is negligent and liable.
The other guy had the duty to avoid the accident by using due care and caution in the way he was driving and in the way he kept a lookout. It seems to me that in this respect he failed, and thus even if your son failed to yield the right of way, the other guy is still negligent and his negligence is more than 50% of the cause of the accident.
What about the skid marks? FIRST PHOTOGRAPH AND MEASURE THEM. Call on an accident reconstruction specialist and ask for a report of speed. It sounds like this was a residential district, usually with a 35 MPH limit. But from the skid marks, it would seem that the other guy was traveling over 60 MPH.
What about the ticket? The investigating officer’s opinion is INADMISSIBLE. He is NOT ALLOWED TO TESTIFY AS TO WHO IS NEGLIGENT. All he can testify to is the facts as he found them, including the witness statements. So, his ticket is not at all controlling in this case. But it is a problem nonetheless inasmuch as most adjusters will go with the ticket, and so an attorney may be necessary to push this case to a successful result.
Back to the court case on paying for his ticket: you can get some ideas of how to fight it from what I have given you. BUT IF THERE IS AN INJURY CLAIM your son wants to pursue, then sometimes it is best to just pay the ticket and avoid having to give testimony that could be used against your son in the injury claim.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Http://www.SettlementCentral.Com
