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Gainesville – Ocala Attorneys Discuss Fault Following Death of 5-year-old child in Rear-end Collision 

Due to a recent tragedy involving the death of a 5-year-old child, the Gainesville Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC revisit a previous topic in which we discussed common misconceptions regarding the presumption of fault in rear-end collisions.

While often time we use hypothetical scenarios, here we discuss an actual real-life scenario involving the heartbreaking death of a 5-year-old child. The facts of the accident, reported by the Gainesville Sun, are as follows:

On Thursday, July 24, 2014, a 2014 Kia occupied by 4 out of state residents, including two adults, 32-year-old Joseph Paul and 24-year-old Cassandra C. Montimaire, as well as two children, 8-year-old Sebastien G. Montimaire and 5-year-old Annabel Jeanine Montimaire, pulled over to the side of Waldo Road near Gainesville, in order to enter information into their GPS. According to FHP, the Kia was stopped, but was partially blocking the outside lane. Thereafter, a 2009 Ford Expedition, driven by a 32-year-old resident of Starke, Tabitha Morris, failed to see the stationary vehicle, and as a result struck the Kia from behind. As a result of the collision, the 5-year-old was fatally injured, the 8-year-old suffered serious injuries, and the rest of the parties involved sustained minor injuries.

So, given these facts, let’s examine this accident in terms of fault and liability…*

In Florida, case law provides that, in rear-end collisions, the rear-driver shall be presumed to be the sole and proximate cause of the accident, unless the front-vehicle is able to ‘rebut the presumption.’  In other words, they must present evidence sufficient to demonstrate that the rear driver’s negligence contributed to (or caused) the accident. This is referred to as the Rear-end Collision Rule.

And applying this rule to the facts…

The front vehicle (the Kia), was pulled over to the side of the road, and the rear-vehicle (the Ford), struck the Kia from behind. Therefore, according to the rule, a presumption of fault will arise over the driver of the Ford. However, keep in mind that the presumption is rebuttable, and according to FHP, the Kia was ‘partially blocking the roadway.’ As such, the driver of the Ford may attempt to rebut the presumption by asserting that the Kia was illegally stopped, unlawfully parked, or otherwise obstructing the roadway.

Our assessment of fault does not end here, though…

While, at a quick glance, one may be inclined to think that the position of the Kia is sufficient to overcome the presumption, this is not necessarily true. It is important to remember that Florida adheres to principles of comparative negligence. Consequently, if the driver of the Kia (front vehicle) is able to present sufficient evidence showing that the negligence of the driver of the Ford (rear vehicle) contributed to the accident, the presumption is eliminated.

As automobile collision attorneys, we understand the need to thoroughly examine accident circumstances, as well as identify, gather and preserve all relevant evidence, in order to properly assess fault. For example, while FHP stated that the Kia was blocking the roadway, further investigation, such as accident reconstruction or witness statements, could possibly reveal otherwise. In addition, evidence of distracted driving, such as cell-phone records showing that the rear-driver was talking on a cell phone, or texting while driving, can also support an assertion of comparative negligence. The examples provided represent just a few potential scenarios, and there are a number of additional factors that should be taken into consideration in examining fault.

So, given the foregoing, let’s say there is sufficient evidence of comparative fault….

Generally speaking, there are two things likely to occur in the event either party asserts an auto negligence claim. First, evidence of comparative fault may be used during the negotiation process, in an attempt to reach a settlement with the opposing party.  Second, if the parties are unable to settle, the matter may proceed to trial. At trial, evidence will be presented for the purposes of assigning percentages of fault, which is then used to offset each party’s damages. This process is referred to as apportionment of damages.

Again, hypothetically speaking, let’s say it is determined that each party was 50% at fault for the accident…

While one might think that equal fault would leave both parties emptied handed, this would only be true if they had an equal amount of damages. Just as the percentages of fault must be determined, so must the amount of damages. In the accident at hand, the only occupant in the Ford, the driver, suffered minor injuries, and therefore it is necessary to determine whether that party’s injuries are sufficient enough to meet the permanency threshold.  However, the Kia had 4 occupants, and as a result of the collision, one child was killed, the other sustained severe injuries, and the two adults suffered minor injuries. Clearly the death of the child is permanent in nature, but more information would be needed to determine the extent of injury suffered by the others.

Now, applying fault to damages (hypothetically)…

Keep in mind that it is also necessary to consider each party’s insurance coverage, including PIP coverage, as well as Bodily Injury and Underinsured/ Uninsured Motorist coverage. Therefore, for explanatory purposes, and without taking into consideration insurance coverage, deductibles, other factors pertaining to damages, and crossclaims or counterclaims, let’s say it is determined that damages on one side total $20,000, and on the other side, $100,000. If this were a simple case involving only two parties, the assignment of 50% fault to each would result in a reduction in damages to $10,000 and $50,000, respectively. However this accident is a bit more complex, in that it involves several injured parties, multiple potential claims, as well as a possible wrongful death action.

What can be taken from the foregoing?

As a general rule, accident victims should never rely on a police officer’s finding, the contents of the police report, or their own assumptions regarding fault and liability. It is far more beneficial to discuss the matter with an experienced attorney who will investigate the accident and potential fault, gather evidence, and explain your legal rights and options regarding entitlement to financial compensation. Not only is consultation free in personal injury matters, but representation is provided on a contingency basis, which means if you don’t recover financially, neither will your attorney. If you or a loved one were injured or killed in an accident that occurred in Starke, Waldo, Melrose, Gainesville, or a surrounding area in Alachua or Bradford counties, the Gainesville Automobile Collision Attorneys of the Law Office of Alba & Straile, PLLC want to help you.

*Please note that this discussion should not be construed as legal advice nor determinative of the outcome of any claims associated with this particular matter.

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