Personal Injury


Bystanders creating amateur news casts and providing first aid to the victims of an accident between a motorcycle and a carCar accident claims and lawsuits are probably the most common type of civil tort case filed by attorneys today. Except in those states where legislation has been passed doing away with fault as an issue ( no-fault laws ), car accident cases are litigated under general negligence principles. The lawyer for the plaintiff injured in a car accident files a lawsuit in court and is required to prove that the defendant was negligent, that the negligence was a proximate cause of the car accident, and that the car accident caused the plaintiff’s injuries. Not only may the defendant’s lawyer contest these issues, but under common law the defenses of contributory negligence and assumption of risk may also be raised in the accident lawsuit to defeat the liability portion of the auto accident claim. Injuries and damages may be attacked on the basis that they were not proximately caused by the car accident (causation) or on their severity.


Negligence has been defined as the doing of something that a reasonably prudent person would not do or the failure to do something that a reasonably prudent person would do under the same or similar circumstances. In other words, negligence can be either affirmative conduct or the failure to engage in affirmative conduct.

In the context of a car crash, or in fact any type of motor vehicle wreck, whether it be a truck crash, a bus accident, a motorcycle accident, a bicycle accident or even a pedestrian struck by a car, this could mean a broad range of behavior, from a momentary lapse of attention (not looking straight ahead when one should be looking straight ahead) causing a driver to rearend another vehicle (the rearender is, perhaps, the most common of all types of car accidents), cross a center line, fail to yield the right of way, or run a stop sign or a red light, resulting in a collision, to affirmative conduct constituting unsafe driving, such as speeding, tailgating, or drunk driving, (doing something a reasonable driver shouldn’t do, i.e., driving too fast, passing when unsafe to do so, following too closely or drinking alcohol followed by driving while impaired or intoxicated).

The hypothetical “reasonable person” standard is used as the basis to judge human behavior. A reasonable person utilizes care and caution under circumstances in which it is foreseeable that the failure to do so would pose an unreasonable risk of injury or harm to others.

The Defense of Contributory Negligence

The doctrine of contributory negligence is an affirmative defense to an automobile accident claim and is typically raised by a defense attorney in the Plaintiff’s lawsuit in an effort to defeat the accident lawsuit. A plaintiff’s own negligence which is a proximate cause of the automobile accident serves to defeat the plaintiff’s claim, even if the defendant was also negligent. Under the common law doctrine of contributory negligence there is no comparison of the fault of a plaintiff and the fault of a defendant.

Even where a defendant’s negligence is, seemingly, much more serious, the plaintiff’s own negligence in the car accident will defeat the claim. This rule has been criticized as unduly harsh by many attorneys and has given rise to various methods to escape from the effects of the doctrine, including the judicially created “last clear chance” doctrine and the doctrine of comparative negligence in some states. Maryland, the District of Columbia (D.C.) and Virginia (VA) are common law contributory negligence jurisdictions.

Comparative Negligence

As noted, criticism by attorneys, judges and legal educators of the doctrine of contributory negligence as unduly harsh has led most states to modify the common law rule by enacting comparative negligence statutes. In these states, the fact finder (judge or jury) in a wreck lawsuit, rather than deny the plaintiff in a car accident case any recovery, is permitted to compare and apportion the negligence of the plaintiff against that of the defendant and adjust its damage award to the plaintiff according to the degree of contributory negligence of the plaintiff. For instance, assume a plaintiff and defendant are both found to have been driving negligently and that negligent driving caused a car crash. As between the plaintiff and defendant a jury in the accident lawsuit finds that the plaintiff’s negligence contributed 40% to the car accident, and the defendant’s negligence contributed 60% to the car accident.

The jury would then decide upon the amount of injuries and damages sustained by the plaintiff and would reduce them by 40%, representing the plaintiff’s percentage of contribution. Most states with comparative negligence statutes draw the line where the plaintiff’s contribution is found to reach 50%. In these “modified comparative negligence” states, at the point where the plaintiff has been found to be equally as at fault in causing the motor vehicle accident as the defendant, recovery in the lawsuit is denied. However, there are some states with “pure comparative negligence” statutes, that permit a plaintiff to recover in the automobile accident lawsuit even if the plaintiff’s own negligence was responsible for 95% of the auto accident. Such a plaintiff would recover only 5% of his or her injuries and damages.

The Defense of Assumption of Risk

The doctrine of assumption of risk bars a claim for negligence when it can be shown that the plaintiff, by his or her conduct, voluntarily chose to encounter a known and specific danger and either fully appreciated or should have fully appreciated the risks posed by that conduct. It is rarely applicable in car accident claims, because it involves intentional, as opposed to negligent, behavior. However, since it is a defense at common law to a negligence claim, under the appropriate set of circumstances, attorneys for defendants may assert it in lawsuits arising out of auto accident claims.

Last Clear Chance – An Exception To Contributory Negligence

As indicated above, the doctrine of last clear chance is a means of avoiding the effect of the doctrine of contributory negligence. A plaintiff who is contributorily negligent may nevertheless recover in the motor vehicle accident lawsuit if the plaintiff is in a situation of helpless peril, and thereafter the defendant had a fresh opportunity to avoid injury to the plaintiff and negligently failed to do so. Under these circumstances it is said that the defendant had the “last clear chance.” Maryland has an unusual limitation on the application of last clear chance in car accident lawsuits and other negligence cases that renders this defense inapplicable in many cases.

Burden of Proof

The burden of proof in all negligence lawsuits, including auto accident claims, is on the plaintiff. This means that the plaintiff’s lawyer must go forward first with the evidence at the trial of the accident lawsuit and must present evidence from which a fact finder (judge or jury) could reasonably infer that the defendant was negligent, that the defendant’s negligence proximately caused the car accident and that the plaintiff’s injuries are causally related to the car accident. This does not mean that the plaintiff’s attorney must present absolute or positive proof or that the evidence presented by the attorney in the lawsuit must be conclusive or convincing. It also does not mean that the plaintiff must win. It only means that the plaintiff’s attorney must present sufficient evidence in the accident lawsuit so that a reasonable judge or jury might conclude in favor of the plaintiff. This is called a prima facie case. The burden of proof on the issue of negligence can be met by testimony as simple as that of the plaintiff to the effect that he or she observed the defendant speeding or crossing the center line. Once the attorneys for the plaintiff have presented all of their evidence, the burden of proof in the lawsuit then shifts to the defendant’s lawyer to present evidence of any affirmative defenses. If the defense attorneys contend the plaintiff was contributorily negligent, they have the burden of producing evidence from which a reasonable judge or jury might conclude that the plaintiff was contributorily negligent. Similar to the plaintiff’s burden of proof on the issue of negligence, a defendant’s burden of proof of contributory negligence need not be conclusive or convincing. It merely must permit a reasonable fact finder to decide in his or her favor based upon the evidence.

The standard of proof in most civil cases, including automobile accident cases, is called the “preponderance of the evidence ” standard. It is less strict than the standard in criminal cases of proof  “beyond a reasonable doubt “. The “preponderance of the evidence” standard has been defined to mean the more persuasive evidence or the evidence which is more likely than not to be true or accurate as to what happened on an issue. Judges frequently illustrate this standard for juries sitting in judgment of accident lawsuits by comparing it to the scale of justice. If one party’s evidence is placed on one side of the scale and the other party’s evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to sustain the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a “preponderance of the evidence”.

Proximate Cause

On the surface, proximate cause appears to be one of the simplest concepts in negligence law, whereas, in reality, most attorneys consider it to be among the most difficult and vague of legal concepts. Over the centuries courts have defined it differently. Some attorneys contend that it is an example of where the judicial system applies a “We know it when we see it” test.

However, a basic definition is that the auto accident and injury must be shown to be the natural and probable result or consequence of the acts of negligence alleged by the attorneys in the lawsuit to have been committed. The attorney for the plaintiff must prove that any negligence of which the defendant is accused proximately caused the accident and his or her injuries. A defense attorney must at the same time prove that any contributory negligence of the plaintiff proximately caused the accident and any injuries of which the plaintiff complains. There may be more than one proximate cause of an auto accident. Two, three or even four acts of negligence by different people may concur to cause the same accident, yet each may be deemed to be a proximate cause of the auto accident.


In automobile accident claims, as in all negligence cases, the injured party may recover for physical pain and suffering, mental pain and suffering, medical and rehabilitative expenses, lost income, both past and future, permanent impairment and permanent disfigurement. Other incidental expenses proximately caused by the accident are also covered. In addition, the lawyer may join the spouse of the victim in the accident lawsuit to recover for damage to the marital relationship. This is called loss of consortium, and it is ordinarily a joint count in the Complaint (accident lawsuit document that begins a case) by both the husband and wife. Loss of consortium generally includes any negative effect upon the marital relationship proximately caused by the auto accident and can be defined as loss of the spouse’s love, companionship, comfort, affection, society, solace or moral support, enjoyment of sexual relations, the ability to have children, and physical assistance in the operation and maintenance of the home. Loss of consortium can be either temporary or permanent.