There's more to traffic laws than just not getting a ticket...

Have you heard those personal injury attorney commercials?  You know the ones, "Have you been injured by a distracted driver?"  Once upon a time it was just, "have you been injured." But now? Now they want to know if the other driver was distracted.  Ever wondered why that's the thing they want to know?

I was driving back from court today and the commercial for my area came on.  Now of course, I had my hands at "10 and 2" because I know the answer to the above question...Negligence Per Se.

In plain English, Negligence Per Se simply means that, under certain circumstances, a defendant will be presumed to be at fault.  For instance, in Ohio it became illegal to text and drive when the legislature passed this into law.  So if you are caught texting and driving it is a minor misdemeanor.  But here is where it gets interesting.  If you are in a car accident while you are texting and driving, the law assumes you were negligent and therefore responsible for any resulting injuries or damages, regardless of whether that is the case.

This is important for several reasons.  First and foremost, it shifts the burden from the plaintiff to the defendant.  Generally speaking, in civil cases the plaintiff has the burden of proving that the defendant was the cause of an injury and therefore responsible for paying any damages.  the defendant's goal is to poke holes in the plaintiff's case and try to provide some mitigating factors for why they shouldn't be liable.  Once  Negligence Per Se enters the picture, the defendant bears the burden of proving that they were not the cause of the injury.  This means that the plaintiff can sit back, while the defendant has to do all of the work trying to disprove that their violation of a law was not the reason the accident happened.

Second, it gives personal injury attorneys an incentive to take the case when the doctrine applies.  Usually, personal injury cases are very time consuming and require a great deal of resources in order to meet the burden of proof. Due to this aspect of personal injury law, attorneys who practice in it must be very careful in selecting cases that they feel will be successful.  However, Negligence Per Se shifts that responsibility to the defendant, making the case very attractive to personal injury attorneys.  After all, they get the benefit of the law assuming that their new client was right and the defendant is wrong.

So if a car accident occurs, the two parties will fight over who was at fault, and therefore who is responsible for paying damages.  But, if you take that same accident and can show that one of the drivers was texting at the time, well, they are going to have to come up with proof that their violation of the law did not actually cause the car accident.  How do you suppose you would go about proving that?

My two cents is simply this: don't text and drive.  All legal maneuvering aside, it is dangerous and it could end up getting people seriously injured or killed.  There is no information that I have ever received or sent in a text message that couldn't wait until I was parked to read or respond to.  Please be safe on the roads, and remember, failure to obey traffic laws could cost you a lot more than a traffic ticket.

This post is for informational purposes only and should not be regarded as legal advice or as forming an attorney-client relationship.  If you are in the Dayton, Ohio area and feel that you may be in need of legal advice please contact Strain Law Office, LLC for a free consultation.