as usual excellent questions.. my response is in CAPS, I am not yelling.. just computer illiterate
hat type of a road were they travelling? INTERSTATE I-95 GOES ALL THE WAY UP THE EASTERN STATES OF THE US
how many lanes? 4
Road conditions? OK
I would place Whitney at fault, unfortunately of, and regardless of the fact
hat Perre was possibly unrestrained, for the following reasons.
1. Whitney was 100% responsible for the safe operation of her vehicle at
ll times before and during the collision.
2. Whitney's failure to maintain responsible control of her vehicle
i.e. rear ended the Plaintiff) was the proximate cause of
he collision. Even assuming that the Defendant can prove that the Defendant's
ehicle was traveling below Highway speeds, this is not a good
eason to rear end it! The Plaintiff did not lose her obligation to operate with
due regard" for the safety of other motorists around her, just
ecause the Defendant was driving slow. If I were the Defendant, I'd simply say
I was operating at what I felt was a reasonable and safe speed for
he conditions of the roadway". Who's going to try to argue the fact, that the
efendant was operating with "extra" care?
. If the State Law says you don't have to wear a seatbelt, and the
laintiff is Haitian, what's the Haitian customs/education
egarding seatbelt usage??? Assuming he had not been in our Country very long,
e may not have ever been educated to the dangers of not wearing
. If I were the Plaintiff, I'd argue the Mechanism of Injury (MOI) ! You
uggest that the MOI is from striking his head on the roof of the
ehicle, however, I'd argue that his injury was the result of a "Whiplash" type
otion, resulting from the Plaintiff striking the back of the
ehicle at a high rate of speed. Consider the forces which occurred here (again
ssuming somewhat). The KIA Minivan is somewhat wedge shaped on the
ront end, and the Corolla is somewhat squared on the rear end. Both sit fairly
equally) low to the ground, so, if the Corolla was traveling slow, and the KIA
s traveling fast, and the KIA strikes the Corolla, one of two
hings are likely to happen. Either the KIA's front end is going to under ride
he rear of the Corolla (lift Corolla off the ground) OR, it's
imple going to "Q-Ball" it forward and away from the KIA (which post-impact is
osing speed / energy). Eith
er way, the occupants of the Corolla were traveling at a given
peed, and suddenly were struck with substantial force (70 MPH),
ausing their vehicle to suddenly increase speed. Now, think of your
ead....it's bobbing around on top of your neck. Your head is
ery heavy (try picking up someone's head, when they are completely relaxed).
t's largely unsupported by the neck, so when the Corolla was shoved
orward violently, the Plaintiff's body was shoved forward (along with the car),
ut his head (unless very properly supported by a headrest)
idn't speed up with the rest of the car (unsupported), so now it's whipped
ackward violently, and most probably sheered off (fractured) the back side of a
igh C-Spine Vertebra (C1-3) if very high speed difference)
r (C4-7) if lower speed difference. Unfortunately, in this case, a seatbelt
ould not have prevented this
"suggested" MOI. I think you're fighting a losing battle with a
loading" injury such as from hitting the roof. If' you're going to
rgue a loading injury vs. a sheering injury, you'd better get some really good
rauma Surgeon's in there to examine X-rays.
. Also, I'd argue that despite the fact that my Plaintiff may have been
nrestrained, but he'd still be walking around today, had the
efendant not rear ended him for no good reason.
6. Has an accident investigator/reconstructionist (not routine patrol
fficer) examined the seatbelts? Were they in use or not? It's
airly easy to determine if a seatbelt was "loaded" with energy during a
ollision. Has anyone offered any opinions as to the damage (or
ack thereof) which would actually determine seatbelt usage? Also, has anyone
ecovered the CDR Modules (if equipped) on the vehicles to
etermine speed? Has anyone done crush analysis to determine speed? Tire mark
nalysis? Does either vehicle show evidence of an under ride by
he KIA? All of these things need to be determined.
belted in the back? I'd Look At This Closely
How do you know she was at fault?
oes it not seem odd to have the sort of damage you would expect in a head
n collision consequent to what should have been a minor impact? If they
ere traveling the legal minimum, the impact should still have been pretty
inor unless she was speeding dramatically.
f the passenger was belted, did the belt fail - is there potential third
f he wasn't belted, and had no obligation to be belted, how do you
ttribute fault to him? I wouldn't buy that.
hat other accidents may these people and/or their family members have
een involved in? Could this be a traveling road show case?
ould the surrounding environment be consistent with a road show scheme -
ust over a hill, or around a corner, where a vehicle sitting in your lane
ould pop up unexpectedly.
o racist intent here, but it is well documented that there are Haitians
ho are like gypsies - notorious for setting these things up.
'd be doing some serious investigative work on this one.
RESPONSE; DEFENDANT HAS ADMITTED FAULT FOR THE ACCIDENT BUT NOT THE INJURY
he is at fault because the law assumes the driver of the rear-ending
ehicle is at fault.
That is not to say, that there isn't concurrent causal relationship between
he actions of the driver Perre was riding in (negligent driving,
nattentive driving, etc.) and the rear-ending driver, but with the facts
resented here there is no way to make that determination.
From what I read here there is no dispute that Perre was injured as a
esult of the accident, and that there is simply mitigating circumstances
hether he was belted or not. I am not sure there is a way to definitively
etermine that the seat belt or lack thereof was the reason for his injury,
ut there is a proximate causal relationship between at least the female
river, and possibly the driver of the car Perre is in... but either way,
ottom line is the collision caused his injury. Had there been no collision
n Highway 95 between those two vehicles, he would not be injured at this
oint and as such any way you slice the blame between the drivers, the
ollision caused the injury either directly or proximately.
Of course, this is a lay opinion.
hings that matter:
:00AM - were the exterior lights on the Corolla working? The middle
aitian - is he of normal weight or would he have required an extender to get
he belt across his lap? Was it a lap belt or a 3-point? How tall is he?
as the car mechanically sound or was it in the right lane because it was
xperiencing difficulties? Did the car or driver have a history of accident
as Pierre/Perre alone in the back seat? NOT SURE
Was he sitting or lying down? NOT SURE
as he awake or sleeping? NOT SURE
hen you say "2 am on 12 31 08" do you mean the night before New Year's Eve (YES)
or 2:00AM ON New Year's Eve?
Why was Whitney on the road at 2AM with a
mall child? WHY IS THAT IMPORTANT? (JUST CURIOUS)
Had she been drinking? NO How long had she been driving without
rest prior to the accident? NOT SURE
Was she on a cell phone?
hings that shouldn't matter:
hitney's marital status, age, how far she was driving unless she was close
to her destination and had NOT taken a rest break.
If the Defendant can prove that the Plaintiff deliberately set up the
ccident, or otherwise created a situation such that it was unavoidable, the
act that she rear ended the Plaintiff is no longer dispositive of fault --
xcept maybe in Kookyfornia . . . anything could be possible there.
f a car is traveling below the minimum freeway speed, and positioned just
ver a hill, or just around a corner, it is entirely possible that a rear
nd collision could be their fault. You are not allowed to set up an
ccident and then collect.
imilarly, in a contributory negligence jurisdiction, I deliberately slam
n my brakes in front of you to make you hit me, it is not your fault. See
octrine of "Last Clear Chance."
N THIS STATE ONE CAN NOT ARGUE LAST CLEAR CHANCE
n Missouri if you rear end someone, even if they are immobile on the
reeway you are assumed to be at fault.
The precedent cases were justified by the language of the law regarding
river licensing that state that
"The driver is solely responsible to maintain control of their vehicle at
ll times" this includes being aware of the roadway
and maintain a safe speed and stopping distance based on terrain, weather
nd other inclement conditions.
My brother-in-law was held at fault in this very situation.
An off topic story. Back in September, 1967 I was staying at the Johnina
otel in Miami Beach. I was on my way to Flagler Race Track in my rented
amborghini stopped at a red light. When the light turned green, the hot
ellow Vette in front of me wound up in my lap as the driver from Missouri
ad shifted into reverse instead of drive; not an easy feat at that. Anyway,
olice are there; an ambulance is there for me; off to the hospital I go
s the driver kept exclaiming my innocence; and, how it was all his fault.
ast forward to the E.R. and as soon as the x-rays were finished as I had a
couple broken ribs from the steering wheel, on go the handcuffs and I'm
uffed to the bed rail. However, within minutes they are removed and I'm
nformed my bail was made. Now I was really confused. This was WAY pre-cell
hone and I hadn't called anyone. I didn't give any contact information
o anyone as they barely got my name and vitals.
fter my ribs were wrapped and I was given some pain meds, I was free to
o. I put my clothes back on, grabbed my purse and slowly departed. As I
as leaving the police officer told me there was a gentleman waiting for me
nd he walked me over to him. It was a rep from Hertz who had rented the
ette to the guy from Missouri who hit me. He was nice enough to drive me
irst to the local police station and then back to the Johnina. I wasn't in
he mood to go to the track. At the police station I discussed my dilemma
ith the officer because I was leaving the next day for Barbados and
ouldn't be back for 6 months.
e explained how I would warrant but if I kept my nose clean for 3 years I
ould have nothing to worry about as the warrant would disappear since it
as only a misdemeanor. That was alright by me. However, upon my return
o Miami Beach I came to learn that Hertz had actually had an attorney
ppear for me and the case went away.
andcuffed because the driver in the rear is always presumed guilty
egardless of common sense when an honest driver is fessing up !!!!!!! UGH !
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