A tortfeasor (negligent driver) faces several serious criminal charges in the wake of a serious injury head-on crash.
Orangetown police say that the wreck occurred on Washington Avenue. 27-year-old Kevin Thompson, of Hillsdale, N.J., crossed from the westbound to the eastbound side, colliding with another vehicle. Mr. Thompson and his passenger were both seriously injured, as were three people in the eastbound vehicle. All the victims were transported to nearby hospitals, where they are expected to survive.
Authorities charged Mr. Thompson, who did not have a valid drivers’ license, with first degree vehicular assault, first degree aggravated unlicensed operation, and driving while intoxicated.
Liability in Alcohol-Related Crashes
Impairment is a factor in about a third of the fatal car crashes in New York, because the impairing effects of alcohol, such as slowed reflexes, trouble concentrating, and distorted judgment, begin after just one drink. So, tortfeasors who are not intoxicated for criminal law purposes are almost certainly impaired for negligence purposes.
Alcohol impairment is very close to an intentional tort, because the tortfeasor chose to drink and drive even though they knew that decision risked the safety and property of other people. There are basically two ways to prove impairment in civil court:
- Circumstantial Evidence: Physical symptoms like bloodshot eyes, an odor of alcohol, and erratic driving usually only establish consumption. However, since impairment begins with the first drink, evidence of consumption is tantamount to evidence of impairment in civil court.
- Negligence Per Se: If the tortfeasor was charged with DUI, the jury may conclude that s/he was negligent as a matter of law. For the negligence “as such” rule to apply, the victim/plaintiff must also establish that the tortfeasor’s intoxication substantially caused the car crash.
Because of the reckless nature of DUI, damages in these cases tend to be rather high. If the victim sustained a serious injury, the victim is entitled to compensation for both economic and noneconomic losses.
California and many other states have weakened their dram shop laws in recent years, but New York’s third party alcohol liability law remains as strong as ever. It applies if a grocery store, bar, or other commercial provider sells alcohol to:
- A minor, or
- An obviously intoxicated adult.
To prove obvious intoxication before the sale, the victim/plaintiff can use much of the circumstantial evidence discussed above. As for substantial cause, most courts agree that both packaged and non-packaged alcohol sales can contribute to a car crash, since it is foreseeable that a person may open a can of beer, or whatever, and drink while driving.
Common Insurance Company Defenses
In an adversarial system, which is what New York courts use, a personal injury attorney is committed to maximum compensation for victims, and insurance company lawyers do whatever they can to reduce compensation.
One common defense in passenger injury situations is assumption of the risk. The argument is that people should know better than to get into cars with drunk drivers, so they cannot later file damage claims. Legally, there are two prongs to this defense:
- Voluntary Assumption: Getting into a car is almost always voluntary, but sometimes, a person has no other ride home or there are similar circumstances.
- Known Risk: There is a difference between an increased statistical risk and a known risk. The victim knows that there is a risk if the tortfeasor is already driving erratically or there is other evidence of imminent danger.
In wrong way crash cases, insurance company lawyers often raise the last clear chance defense. This doctrine states that if a victim has an opportunity to avoid an oncoming car, by changing lanes or whatever, the tortfeasor is not liable for damages if the victim does not avoid the crash. Once again, there is a difference between a theoretical opportunity to stop a crash and an actual opportunity to do so.