Many Florida injury attorneys would likely advise the following to the respective front driver and/or rear driver of a rear-end collision:
1) Advice if front driver calls: Proving liability (fault) is going to be the easy part in this auto accident claim. The person who rear-ended you is “always” at fault.
2) Advice if rear driver calls: I cannot help you. You rear-ended the person in front of you, and since you had the duty to keep a proper lookout and distance, you are at fault. Contact your insurance company for a legal defense.
I am not being critical of this advice, as frankly it is going to be correct the vast majority of the time. However, it is not correct all of the time, as illustrated in a Florida Supreme Court case published just a few months back.
Without being overly technical, you should understand that there is a “presumption” in Florida that a driver who rear-ends the car in front is at-fault, and is responsible for the personal injuries that result from the car accident. However, two different court districts in Florida were applying this presumption in different manners, which caused a couple of issues for the Florida Supreme Court. First, should the presumption be a “rule” that the rear driver was at fault? Second, should this presumption be different depending on whether the person bringing the injury claim was the front driver, or the rear driver?
The Florida Supreme Court, in a well written opinion, went through the history of the presumption that a rear driver is at fault, as well it’s ties to “contributory negligence” (the old Florida rule) vs. “comparative negligence” (the current statutory rule). For attorneys (or anyone else reading the entire decision), the case is Birge v. Charron and can be found here.
The Florida Supreme Court found that the presumption of negligence against a rear driver is just that: Only a presumption. That means if the rear driver can introduce evidence that the front driver was at fault in any way, then the presumption “bursts” and the jury should decide the respective parties degree of fault based on Florida Statute 768.81 (i.e., the “Comparative Fault” statute). Furthermore, the Court found that regardless if it is the front driver bringing the injury claim from the auto accident, or the rear driver, the presumption remains the same and can be rebutted.
This case will be helpful to attorneys representing an injured client who rear-ended someone else under circumstances that suggest the front driver was at least partially at fault for the automobile accident.