Any risks/how to fight fault in a traffic accident?
January 23, 2011 4:27 PM   Subscribe

Any risks of fighting who is at fault in a traffic accident?

My wife was in a car accident with an off-duty police officer (I'll call him PO).

The responding officer (call him RO) wrote it as her fault, based on her testimony that both parties entered the intersection at the same time (she was on the left, thus the PO had right-of-way). I don't know what else she said in her account, but would like to get a copy of the police report.

The thing is: the PO was speeding (~40 in a 20), as she stated in her account to the RO. Wife was going ~10 mph. So, first off, the PO was breaking the law by speeding.

Also, her car was hit on the side, and PO's truck hit in the front.
Now, with some simple physics it is easy to see that there is no way that they entered the intersection at the same time, as he was speeding, and she had to cross a lane before she entered his lane (all while going ~10mph).

So, basically: he was speeding (which I feel should revoke his right of way, since he is breaking the law..otherwise if someone ran a stop sign, they would have right of way), her car was struck on the side, meaning that she was in the intersection first.

My questions are: can we fight it without a lawyer? What are the risks of trying to fight it? Any other advice on how to fight it/websites that might help?
We already have to pay "court fees" on the infraction issued, so I feel that we might as well use the court time and try to get the infraction revoked as well as save us some money on our insurance.
posted by idyllhands to Law & Government (26 answers total) 1 user marked this as a favorite
You might not win, but I don't see any downside to fighting it. If you're not hiring an attorney, the (likely) worst that happens is you lose, which means the status quo and no extra costs incurred.

Can you clarify the positions of each party at the intersection? From your account, I don't understand why it's impossible that she's at fault, etc. -- at minimum, you need to work on clarifying that anyhow, since you need to make your position easy to understand if you want to overturn her account to the cop and the cop's determination of fault.
posted by J. Wilson at 4:39 PM on January 23, 2011

You haven't yet mentioned what jurisdiction you are in, that matters
posted by Blasdelb at 4:39 PM on January 23, 2011 [1 favorite]

Where I learned to drive, switching lanes in an intersection wasn't legal. I'm not sure if that applies here.
posted by jangie at 4:45 PM on January 23, 2011

If the police officer did not write a ticket for speeding, then you are going to have a very hard time convincing a judge that he was in fact speeding. No offense, but us common folk are notoriously bad judges of auto speed by sight. Unless your wife has some training in that area, it is doubtful she could estimate his speed coming at her perpendicularly while she was driving. Also, the driver of the truck is an off-duty cop? In a your word vs his word situation, his job will give him benefit of the doubt. It probably shouldn't, but that is how the system is going to work.

If you really want to win the case in court, I think you will need a attorney that specializes in traffic defense.
posted by COD at 4:48 PM on January 23, 2011 [1 favorite]

Did either your wife or the PO have a stop sign or traffic signal? That's not clear here.
posted by lisa g at 4:55 PM on January 23, 2011 [2 favorites]

Note that from an insurance perspective you can have "partial" fault which is likely what you are looking for. Sounds like both parties were at least partially negligent.

I'm also a bit unclear on the type of intersection here where both parties are moving at once. Did your wife have a stop and the PO did not?
posted by bitdamaged at 4:56 PM on January 23, 2011

My armchair lawyering probably isn't helpful, but ... what the heck.

Tt seems to me that "her car was hit on the side, and PO's truck hit in the front" is the only solid thing you've got to work with. Your wife's testimony about how fast she thinks she was going, and how fast she thinks the officer was going, is pretty much meaningless.

That aside, I'm a little confused about what happened. The car-on-the-right-has-right-of-way rule is, so far as I know, only used at intersections where both cars have a stop sign or a flashing red light which requires them to stop. Did the 40 mph cop run a red light or stop sign?
posted by jon1270 at 4:57 PM on January 23, 2011

The car on the right rule applies to all intersections where drivers need to make a decision about who goes first. Whoever gets there first wins, if they get there at the same time, the driver on the right wins.

It seems to me that there is no way your wife could be at fault if the side of her car was hit by the front of the officer's car. Even if your wife was in the wrong as to right of way, it is every driver's responsibility to not hit other cars.

As jon1270 mentions, the speeding is irrelevant.

You should fight it, but don't be surprised if it doesn't work, or doesn't make a difference.
posted by gjc at 7:09 PM on January 23, 2011

IANAL, but I agree that more details are needed. It sounds like he (the front of his car) ran into the side of your wife's car, and since he was on the right she had traveled further into the intersection that he had (at the time of the accident)

You may be able to prove he was speeding based on how bad the damage to her car was, but you may not need to (or even want to). Why might you not want to prove he was speeding? If the court believes the report which says that the cars entered the intersection at the same time, then that would indicate that your wife was going faster than the cop. (They started into the intersection at the same time, they collided at the same time, but she traveled more distance in the same amount of time). In a sense is the flip of the argument you're trying to make (one man's ponens is another man's tollens..)

Does the report say anything about her speeding? If not, maybe you could try to make the case that his story only makes sense if she were flying and it seems odd that he failed to mention that she was going 90mph...

She would have to be going quite a bit faster than the cop to make his story plausible. How wide is a lane? 8-9 feet? She went at least that far in the time he went 2-3 feet? If they entered at the same time, then she was going 3-4x as fast as he was.

Then look at the damage to the car. Could he has caused that much damage at 10mph? If 20mph is more likely based on the damage (I dunno, I'm not a mechanic), then she was going 60-80mph. Surely the cop would have mentioned that - someone is doing 60 in an area where most people drive 10-20 and the only thing a cop says is that they entered the intersection at the same time? The more likely scenario is that she wasn't driving outrageously fast, which means that she actually entered the intersection first.
posted by chndrcks at 7:26 PM on January 23, 2011

I'm imagining this situation; correct me if I'm wrong. She came to a stop sign at a cross street that DIDN'T have a stop sign. She failed to see PO coming from the right and pulled into the intersection. PO failed to see her and stop in time and hit her from the right. Yes?

Depending on where you are jurisdictionally, there's no such thing as 100% at fault. She's responsible for making sure it's safe to proceed, he's responsible for maintaining a safe speed that will allow him to avoid collision if someone does precisely what she did. EVERYONE who operates a motor vehicle is responsible to avoid collisions, even when they are following all the traffic laws.

That is why all the insurance companies tell you never to admit fault at the scene. It is always not entirely your fault, even if you feel guilty.

Speaking of insurance companies, it's likely that unless your wife or PO wants to sue the other, it's their deal anyway. Make a report to your insurance company, and they'll be responsible for dealing with PO's insurance company to resolve who owes whom. Your insurance company should pay for your repairs regardless, whatever your policy says they have to, which doesn't depend on fault usually. I don't understand what "infraction" you want to fight, or why.

Your rates might be another story; I don't know.
posted by ctmf at 8:00 PM on January 23, 2011

I almost hit a lady in the side the other day when I was driving through an intersection because she did not stop at a stop sign. She didn't even see me until I stood on my horn.

Just because she was hit in the side does not mean she was not at fault.
posted by cinemafiend at 8:02 PM on January 23, 2011

A quick note for those who are asking "how could this happen in the absence of a stop sign or traffic light?": In some US cities, including Seattle and Portland, there are many four-way intersections that are completely uncontrolled--no sign, no light, nothing.
posted by AkzidenzGrotesk at 8:53 PM on January 23, 2011

I was always told that there is no such thing as "right of way." Especially since there are conflicting opinions on what the proper right of way actually is.
posted by XhaustedProphet at 10:33 PM on January 23, 2011

One thing to keep in mind if you decide to fight this in court - this is a traffic ticket, and not a murder case. You will most likely be arguing your case in front of an overworked, low-level judge who doesn't really care, and isn't interested in complicated arguments that refer to principles of physics and mathematics that he may not understand. Furthermore, it's not even clear from your description that you have a legal argument here. You my feel that the PO's right-of-way was obviated by the fact that PO was speeding, but feelings and traffic code (or logic and traffic code) are two different and independent animals.

At best, the judge will probably find your argument cute but irrelevant, at worst s/he'll find it an annoying waste of his/her time, and may choose a harsher sentence because of that.

I say this from experience - I went to court once with a solid, physics-based argument that disproved a ticketing officer's claim that I was speeding. I also had an attorney representing me in court. In the end, the judge either didn't care or didn't understand the argument, and the speeding ticket stood. Fortunately, he found the whole thing entertaining - the idiot ticketing officer wrote me 5 tickets during this stop, and the judge dismissed all of them but the speeding ticket (the one that I had the best defense against). Had the judge found my argument annoying, he could have let all 5 tickets stand and charged me the maximum penalty.
posted by syzygy at 4:14 AM on January 24, 2011

I was always told that there is no such thing as "right of way." Especially since there are conflicting opinions on what the proper right of way actually is.

It is a real thing, it is in the books. What you are talking about it that right of way cannot be taken, it can only be given.
posted by gjc at 5:43 AM on January 24, 2011

From the meager information you provided it could be worth fighting. I'm assuming a four-way stop and both entered the intersection at the same time. If that was the case it is hard to imagine what you mean by speeding unless it was a big intersection or he had a fast car. Accelerating fast does not necessarily equal speeding.

If both were at fault you will still have to run the numbers to see if it worth fighting from a monetary viewpoint.
posted by JJ86 at 6:04 AM on January 24, 2011

The right of way for the car on the right is a courtesy rule and not really a law AFAIK. It would be more or less subjective as compared to who got hit and where.
posted by JJ86 at 6:07 AM on January 24, 2011

Thanks for all the responses.

Let me clarify the situation: As AkzidenzGrotesk mentioned, the intersection was an unmarked residential street intersection. No stop signs for either party.
The impact was hard enough to spin her car into an electric/light pole and destroy the fender on the side that hit the pole (and, of course, the side where he hit her car).
I don't have a copy of the police report, so I don't know how the account recorded matches to the account given. From my experience with the police in this town, they are scum bags (I still hope to meet some to prove me wrong). How do I go about getting a copy of the report?

The infraction he wrote is (from what I can read) failure to yield right of way. But it is carbon copied, so I can't really read his writing.

Anything I missed, please let me know and I will clarify.
posted by idyllhands at 7:45 AM on January 24, 2011

An unmarked intersection is typically a free-for-all but legally, the person in the intersection first has the right-of-way. It would be worth pursuing from the sounds of the damage but you will have to hire a lawyer. The evidence and damage should speak for itself but get pictures of the damage, pictures of the intersection from various angles, insurance reports, and doctor's reports. Get scaled maps of the intersection from the local city engineering records. Show exactly where the cars collided and how they finally wound up. The police report may show that information but may not be completely accurate with scaling and location.
posted by JJ86 at 8:11 AM on January 24, 2011

Could you explain why a lawyer would be necessary?
posted by idyllhands at 12:06 PM on January 24, 2011

Further clarification: when I say she crossed over one lane, I mean that she was over half way across the cross-street, ie. she crossed over the lane for oncoming traffic for the PO. These are small residential streets we are talking about, single lane in each direction.
posted by idyllhands at 12:11 PM on January 24, 2011

And lastly, I am hoping to get verification that the PO won't be able to counter-sue for any reason..
posted by idyllhands at 12:13 PM on January 24, 2011

A lawyer is necessary because you are trying to win a court case based on the law, and you don't understand the law that may be relevant here. The judge is not going to overturn the ticket as written without compelling evidence. Don't take this wrong, but based on the job you did here explaining what happened, I don't get a warm fuzzy feeling about your ability to walk into court and make a compelling legal argument as to why your wife was not at fault. Just guessing here, but legal representation for something like this will probably be in the $500 - $1500 range. How much will your insurance go up based on the ticket? Is it worth risking $1000 to maybe avoid the increase? Only you can do that math, we don't know the numbers.
posted by COD at 12:32 PM on January 24, 2011

I think you need a lawyer because you are at a disadvantage here. The police will have the benefit in knowing how to work the court to their advantage without necessarily lying or breaking laws. With a decent lawyer you are guaranteed a victory and most likely extra to cover medical expenses. If your wife's car was knocked across the intersection as violently as you say there may be some injuries to her.
posted by JJ86 at 1:36 PM on January 24, 2011

A traffic attorney in court will have little to no impact on how the medical claims get handled, beyond whose insurance ultimately pays. Both insurance companies will be out to minimize claims payouts. The OP will need a personal injury attorney to deal with the medical claims.
posted by COD at 1:53 PM on January 24, 2011

It is a real thing, it is in the books. What you are talking about it that right of way cannot be taken, it can only be given.

Okay. But when people explain a situation they say "but I had the right of way" implying that they took what was out there to be taken. Of course if I wave someone to go, and then I hit them, that's no good for me.

I guess I should change my statement to "you should never assume you have the right of way." Because that's how accidents happen. And cell phones.
posted by XhaustedProphet at 9:40 PM on January 24, 2011

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