Vehicular Negligence

• Author: Kevin R. Culhane
• Pages: 111-142

4-1

Chapter 4

Vehicular Negligence

§400 ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION

§410 DEFINITIONS

§420 INTERROGATORIES RELATING TO ACCIDENT FACTS

§421 Plaintiff to Defendant

§421.1 Involvement in Accident

§421.2 Location

§421.3 Defendant’s Contentions re Accident Cause

§421.4 General Details re Accident

§421.5 Defendant’s Activities on Day of Accident

§421.6 Defendant’s Contentions re Plaintiff’s Speed

§421.7 Defendant’s Contentions re Defendant’s Speed

§421.8 Defendant’s Contentions re Unavoidable Accident

§421.9 Defendant’s Contentions re Visibility

§421.10 Defendant’s Vision and Hearing

§421.11 Defendant’s Contentions re Roadway Details

§421.12 Defendant’s Contentions re Traffic Regulations, Traffic Lights and Stop Signs

§421.13 Defendant’s Contentions re Fatigue

§421.14 Alcohol and Drug Use by Defendant

§421.15 Defendant’s Driving Experience and License Status

§421.16 Defendant Supplying Alcohol to Vehicle Driver

§421.17 Automobile v. Bicycle/Motorcycle Accidents

§421.18 Automobile v. Pedestrian Incidents

§421.19 Negligent Transfer

§422 Defendant to Plaintiff

§422.1 Involvement in Accident

§422.2 Location

§422.3 Plaintiff’s Contentions re Accident Cause

§422.4 General Details Regarding Accident

§422.5 Plaintiff’s Activities on Day of Accident

§422.6 Plaintiff’s Contentions re Defendant’s Speed

§422.7 Plaintiff’s Contentions re Plaintiff’s Speed

§422.8 Plaintiff’s Contentions re Unavoidable Accident

§422.9 Plaintiff’s Contentions re Visibility

§422.10 Plaintiff’s Vision and Hearing

§422.11 Plaintiff’s Contentions re Roadway Details

§422.12 Plaintiff’s Contentions re Traffic Regulations, Traffic Lights and Stop Signs

§422.13 Plaintiff’s Contentions re Fatigue

§422.14 Alcohol and Drug Use by Plaintiff

§422.15 Plaintiff’s Driving Experience and License Status

§422.16 Plaintiff’s Contentions re Defendant Supplying Alcohol to Vehicle Driver

§422.17 Automobile v. Bicycle/Motorcycle Accidents

§422.18 Automobile v. Pedestrian Incidents

§422.19 Plaintiff’s Contentions re Negligent Transfer

§430 EQUIPMENT REPAIRS AND DEFECTS

§431 Plaintiff to Defendant

§431.1 Use and Prior Repairs of Vehicle

§431.2 Defendant’s Contentions re Equipment Defects

§431.3 Pre-Incident Knowledge of Defect

§431.4 Post-Incident Condition of Defendant’s Vehicle

§432 Defendant to Plaintiff

§432.1 Use and Prior Repairs of Plaintiff’s Vehicle

DISCOVERY COLLECTION 4-2

§432.2 Plaintiff’s Contentions re Equipment Defects

§432.3 Plaintiff’s Pre-Incident Knowledge of Defect

§432.4 Post-Incident Condition of Plaintiff’s Vehicle

§440 AFFIRMATIVE DEFENSES AND DENIALS

§441 Plaintiff to Defendant

§441.1 Contentions and Related Facts

§441.2 Alcohol and Drugs (Plaintiff)

§441.3 Plaintiff’s Contributory and Comparative Negligence

§441.4 Assumption of Risk

§441.5 Pre-Existing Injuries

§441.6 Seat Belt Defense

§441.7 Joint and Several Liability

§441.8 Defendant’s Contentions - Third Party Emotional Distress Claims

§441.9 Defendant’s Contentions - Negligence Per Se

§442 Defendant to Plaintiff

§442.1 Contentions and Related Facts

§442.2 Alcohol and Drugs (Defendant)

§442.3 Plaintiff’s Contributory and Comparative Negligence

§442.4 Assumption of Risk

§442.5 Pre-Existing Injuries

§442.6 Seat Belt Defense

§442.7 Joint and Several Liability

§442.8 Plaintiff’s Contentions - Third Party Emotional Distress Claims

§442.9 Plaintiff’s Contentions - Negligence Per Se

§450 INVESTIGATORY INTERROGATORIES

§451 Personal Data

§451.1 Health Before and After Accident

§451.2 Felony Convictions

§451.3 Signatories to Defendant’s Driver’s License

§452 Vehicle Data

§452.1 Prior Accidents - This Vehicle

§452.2 Ownership, Permissive Use and Occupancy

§452.2.1 Statutory Liability - Owner’s Consent

§452.2.2 Negligent Entrustment

§452.3 Ownership - Chain of Title

§452.4 Vehicle Records

§453 Business Data

§454 Police and Public Entity Investigation

§454.1 Citations

§455 Investigations by Others

§456 Defendant’s Activities Following Accident

§457 Claims Against Defendant - This Incident

§460 WITNESSES/INVESTIGATION

§461 Responding Party’s Relationship to Person Identified in Responses

§462 Experts

§463 Photographs, Movies, Drawings and Reports

§464 Surveillance

§470 INSURANCE

§480 DUE DILIGENCE IN PREPARATION OF RESPONSE

§490 DEPOSITION CHECKLISTS

§491 Deposition of Defendant

§491.1 General Background

§491.2 Facts Pertaining to Accident

§491.3 Statements by Parties, Witnesses

§492 Deposition of Plaintiff

§492.1 General Background

§492.2 Facts Pertaining to Accident

§492.3 Plaintiff’s Injuries and Treatment

§492.4 Plaintiff’s Damages

§492.5 Affirmative Defenses and Denials

§492.6 Statements by Parties, Witnesses

§492.7 Surveillance Conducted by Plaintiff

§492.8 Insurance Carried by Plaintiff

4-3 VEHICULAR NEGLIGENCE §421

§400 ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION

The vast majority of tort cases arise out of motor vehicle accidents and allege vehicular negligence. These cases are so commonplace as to

become routine, and yet it is important to remember that in order for plaintiff to prevail, he or she must prove each of the traditional elements

of negligence. Interrogatory discovery can help to develop the facts and identify the witnesses necessary to prove each element.

As in other negligence cases, the plaintiff in an automobile negligence case must establish that defendant’s conduct constituted a breach of

a legal duty that was the cause in fact and the proximate cause of actual damages to plaintiff. Each of these elements is discussed in turn below.

Duty

Legal duties ordinarily arise from affirmative conduct that the defendant undertakes, and in vehicle negligence cases, the duty of due care

arises from defendant’s affirmative conduct in operating a motor vehicle. A plaintiff must establish that defendant engaged in this affirmative

conduct or was legally liable for the acts of another person under the substantive law. Many of the interrogatories in this chapter seek to dis-

cover and establish the facts necessary to prove the affirmative conduct requirement.

Breach of Duty

The defendant breaches his or her obligation to exercise due care when defendant fails to act as would a reasonably prudent person under

similar circumstances. Interrogatories directed toward defendant’s conduct seek information necessary to establish plaintiff’s contention that

the defendant failed to act as would a reasonably prudent person under the circumstances.

Cause in Fact

Under modern analysis, defendant’s breach of duty is the cause in fact of plaintiff’s damages when the breach is a substantial factor and a

material element in bringing about the harm. A plaintiff is thus required to establish that defendant’s negligence met these tests; plaintiff cannot

prevail if the injuries would have occurred even without defendant’s negligence. This chapter includes numerous interrogatories pertaining to

any person, event, or condition that is alleged by defendant to have contributed to plaintiff’s injuries. Responses to these interrogatories will

be directly probative on the issue of whether defendant’s negligence was the cause in fact of plaintiff’s damages.

Proximate Cause

While the matter has been the subject of continuous academic debate, trial courts tend to identify the issue of “proximate cause” with

so-called “intervening forces” and “unforeseeable results.” In practice, the existence of additional forces which combine with defendant’s

negligence to cause injury will require the jury to affirmatively determine that defendant’s conduct was the proximate cause of plaintiff’s

damages. Similarly, the jury will be instructed on proximate cause when defendant’s negligence, unaccompanied by any intervening forces,

causes a result or damage which is arguably “unforeseeable.” You may use the questions in this chapter to elicit information pertaining to

these proximate cause issues.

Damages

Finally, the plaintiff must establish that the defendant’s negligence caused the plaintiff to suffer legally cognizable damages. Traditional

damage analysis divides the recoverable compensatory damages into (1) special damages, which may be calculated with some precision and

which ordinarily represent past or future out-of-pocket losses; and (2) general damages, which are ordinarily awarded for intangible losses

such as pain, suffering and humiliation. Specific interrogatories are designed to identify defendant’s contentions regarding general and special

damages and to ascertain the known facts regarding these damages.

§410 DEFINITIONS

All interrogatories in this book utilize the standard definitions. These definitions are set forth in §102.

§420 INTERROGATORIES RELATING TO ACCIDENT FACTS

The sections that follow include interrogatories designed to ascertain the basic facts about the accident. These interrogatories will elicit

information known to your opponent, as well as any contentions that he or she will advance. Since these interrogatories deal with most of the

issues that arise in accident litigation, they will form the core of your interrogatory set in most cases.

§421 Plaintiff to Defendant

§421.1 Involvement in Accident

1. Please state whether YOU were involved in an automobile accident that occurred on __________.

2. If your answer to interrogatory number 1 was yes, please state whether YOU were the driver of an automobile that was involved in

an accident that occurred on __________.

3. If your answer to interrogatory number 1 was yes, please state whether YOU were the owner of an automobile that was involved in

an accident that occurred on __________.

§421.2 Location

1. Please set forth the location of the INCIDENT.

2. Please set forth the time of the INCIDENT.

3. Please set forth the date of the INCIDENT.