Determining fault in a complicated case.

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Pewwriter
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Determining fault in a complicated case.

Post by Pewwriter » Sat Oct 19, 2019 5:39 pm

This collision involves a left turning car that was already 95% clear of the uncontrolled intersection when it was hit by a car that swerved out from behind a stopped car that was waiting to turn opposite the left turn driver. I've attached a diagram to illustrate. My question is - Since the left turning car was already most of the way through the intersection and therefore entered the intersection ahead of the car going straight, would that make the car going straight at fault? Also - would the unsafe lane change of that car that hit the left turning car play a role in fault?
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Rusty Haight
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Re: Determining fault in a complicated case.

Post by Rusty Haight » Mon Oct 21, 2019 7:22 am

Paula:
Actually, this isn't all that complicated. In most states, the left turning driver has to yield the right of way to opposing straight through traffic "lane-by-lane." The "Defendant" driver had to have changed lanes far enough behind the "uninvolved" driver to clear them, then get into the curb lane and then get into a position to hit the left turning "plaintiff." That's a "lot" of time, relatively speaking. That goes to your mention of "already most of the way through the intersection." Similarly, since they appear to have redirected the "defendant" vehicle, it would seem they may not have been moving slowly enough to be able to keep a proper lookout for the oncoming "defendant" driver. Not really knowing the distances or cars involved, I won't speculate on how much time or the speeds BUT it comes back to this: the left turning driver always yields to straight through traffic "lane-by-lane" and, therefore, violated the straight through driver's right of way and is at fault.

Some might suggest that the "uninvolved" driver waved the "plaintiff" through as though it was clear. While that's "nice of them," in reality, that does NOT take the fault away from the left turning driver who should not have entered the curb lane when the "defendant" was so close as to be a hazard.
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Re: Determining fault in a complicated case.

Post by mchenrysoftware » Tue Oct 22, 2019 2:47 pm

Hey Rusty....just a couple of quick devils advocate points:
1) in many states a green light means to proceed 'when the intersection is clear' and it wasn't (had he hit the front or side of the vehicle one might consider it clear, hitting tail end of slow moving vehicle crossing 2 lanes, one has to wonder)
2) How far from the intersection was the vehicle when they made the decision to 'lane change'. Any approx witness testimony on that?
That is an complicating factor.
The driver making the lane change did he make the decision late and/or after coming to a stop waiting to turn left?
What is the testimony, if any?
Could the lane changing striking vehicle have swerved left or simply gone straight, and missed the vehicle? or did they swere right and cause the impact?
With given speeds from damage, etc what would have happened backing them up if the lane changer vehicle simply stayed in right lane?

Lets think of it another possibility: couple cars are waiting to turn left, at last moment the 2nd car in line, impatiently changes mind and swerves/accelerates into right lane and sees, swerves more right, and strikes the left turning vehicle.
Did that lane changing vehicle not have a DUTY to have a lookout to the intersection before proceeding once they changed lanes so close to the intersection (if they did close to the intersection) and then proceed thru intersection?
obviously important matters are timing:
speeds (which appear low)
tire marks? (to indicate swerving/braking/??) and
testimony.

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Re: Determining fault in a complicated case.

Post by Pewwriter » Mon Oct 28, 2019 9:15 am

I have to agree with mchenrysoftware. I've been researching this and pulled Texas case law that states:

Where the proximity of the approaching vehicle is such that it gives the appearance that the left turn may be made in safety, the motorist making a left turn has the right to proceed through the intersection. Day v. McFarland, supra. If the motorist making the left turn has misjudged the speed or distance of the approaching vehicle, the approaching motorist cannot disregard his plight and must exercise ordinary care to avoid a collision. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); McElroy v. Wagley,437 S.W.2d 5 (Tex.Civ.App. Corpus Christi 1968, writ ref'd n. r. e.). Thus, even though the approaching motorist may have the right-of-way, he must take such evasive action as may be reasonably appropriate to avoid the collision if the circumstances are such as to sufficiently alert him to the danger. Thorton v. Campise, 459 S.W.2d 455, (Tex.Civ.App. Houston (14th Dist.) 1970, writ ref'd n. r. e.); Goates v. Fortune Lincoln Mercury, 446 S.W.2d 913, 916 (Tex.Civ.App. El Paso 1969, writ ref'd n. r. e.). The right-of-way of the motorist approaching the intersection from the opposite direction is not an absolute right and the approaching motorist must exercise due care for his own safety and the safety of others. Cheramie v. Scott, 324 S.W.2d 87 (Tex.Civ.App. Amarillo 1959, writ ref'd. n. r. e.).

Another thing that the diagram shows is that the defendant did not maintain her lane. In other words, but for the inattention of the defendant, the collision would not have happened? Wouldn't the defendant's sudden swerve to miss the stopped to turn driver more than likely be driver inattention - therefore in favor of the plaintiff? One other thing to note... Plaintiff insists there was no sounds to indicate the defendant even attempted to stop and no tire marks were noted.

Thanks for the input!!

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Re: Determining fault in a complicated case.

Post by Rusty Haight » Mon Oct 28, 2019 11:07 am

mchenrysoftware wrote:
Tue Oct 22, 2019 2:47 pm
(snip)2) How far from the intersection was the vehicle when they made the decision to 'lane change'. Any approx witness testimony on that?
That is an complicating factor.
The driver making the lane change did he make the decision late and/or after coming to a stop waiting to turn left?
What is the testimony, if any?(snip)
Did that lane changing vehicle not have a DUTY to have a lookout to the intersection before proceeding once they changed lanes so close to the intersection (if they did close to the intersection) and then proceed thru intersection?
obviously important matters are timing:
speeds (which appear low)
tire marks? (to indicate swerving/braking/??) and testimony. (-emphasis added)
Pewwriter wrote:
Mon Oct 28, 2019 9:15 am
(snip)Another thing that the diagram shows is that the defendant did not maintain her lane. In other words, but for the inattention of the defendant, the collision would not have happened? Wouldn't the defendant's sudden swerve to miss the stopped to turn driver more than likely be driver inattention - therefore in favor of the plaintiff? One other thing to note... Plaintiff insists there was no sounds to indicate the defendant even attempted to stop and no tire marks were noted. (snip)(-emphasis added)
Brian:
Agreed, "when the intersection is clear" which usually translates to "lane by lane" because, as the left turner is emerging from behind the stopped cars in the lane nearest where he started, he can't see clearly what's coming at him and is similarly hiding behind those cars for a car in the second lane he has to cross. In virtually all instances, the left turner has the initial burden to make the left turn safely.

In both comments, I think the biggest flaw in an analysis hinges around the word "testimony." Testimony is simply not objective fact, it's not something a reconstruction should be based on; it's something to be evaluated by the trier of fact (judge or jury). Come time of trial, a witness can be "in the wind," or, based on direct and cross, their "testimony" is wholly subject to the listener's interpretation. it's not the objective reconstructionist's job to tell a jury how to interpret a witness statement. That's the jurror's job. Statements like "Plaintiff insists there was no sounds to indicate the defendant even attempted to stop and no tire marks were noted" start off as self serving (what the plaintiff contends...) and end with the question: "no tire marks noted" based on what? None in an inadequate police cover only sheet report? none in photos? none because the plaintiff says so? none because no one actually looked for them at the time?

A lot of this is going to come down to what can be objectively demonstrated? For example, one of the noted cases: Henry F. GOATES, Jr., Appellant, v. FORTUNE LINCOLN MERCURY, INC makes for a good comparison. In that case, the driver of the Ford company vehicle started out to cross a 50ft wide road which was one way, comparable in that way to this left turn question but the similarity stops there. He stopped then pulled out to see into oncoming lanes around bushes and parked cars. He had crossed at least some of the first lane when the appellant, on a motorcycle moving at 5-15 mph over the posted speed limit, "never swerved except possibly at the last instant" (according to the published 1969 decision).

It also includes this passage: "... The fact that the appellant had the right of way did not excuse him from exercising ordinary care for his own safety. Although not required to anticipate negligence or unlawful conduct on the part of others, he was not entitled to close his eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated. ..." Here, I think the only similarity is that we have a car which pulled from behind bushes and stopped cars and that crossing driver saw the oncoming motorcycle just as the motorcycle would have seen that car and so in terms of visibility or conspicuity we'd go back to the first case: the guy who was in the second lane (in the example here) would "...not (be) required to anticipate negligence or unlawful conduct on the part of others ..." - he should have assumed he had a straight through right of way ... however ... in that same case, the court noted "... Further, our interpretation of the record shows that the Mercury was within the clear view of the appellant for some time longer (at least some six seconds), during which he could have taken some action ..."

In the original described case here, we can't have the left turner visible for any period longer than the car which is straight thru at the time of impact...in other words, we can't say one is necessarily "more visible" or more conspicuous than the other so, again going back to the first case, the left turner has the obligation to turn safely - in virtually every state - and a straight thru driver, once in that lane has the first right of way to straight thru travel. What made the difference in the "Goates v Fortune" case is time and distance. The court starts out addressing that entering the road in front of the motorcycle was "...unlawful conduct on the part of others..." then says BUT you can't just close your eyes... I'm going to argue that that has to apply to both drivers.

So I think we have to agree that, based on what we know, objectively, is that there's a left turner entering a lane in which there is a straight thru driver, full stop. that's what we know. But then I agree with Brian, I think knowing WHERE on the left turner vehicle and WHERE in the lane we find impact would be really helpful because it would relate, more objectively to the time the left turner was in that lane; however, that would have to be connected to the speed the straight thru driver and how far back he had to begin his lane change (figure at least a length of the car in the first lane plus a distance for the turner to clear that car plus a distance top leave lane 1 and make it into lane 2 to be aligned with impact (which increases if the plaintiff wants that driver going faster....). It comes down to knowing: time and distance. That's the crux of the difference with the "Goats" case.

For me, I go back to the turner having the obligation to yield lane for lane as the primary cause and then there should be an evaluation of the straight thru driver's behavior. Good news is a lot of that, to get in front of the jury, would have to be laid out effectively by a lawyer, not an expert independently. And, when the lawyer blows it, they have no one to blame but themselves.
- Rusty Haight
Collision Safety Institute

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Re: Determining fault in a complicated case.

Post by mchenrysoftware » Tue Oct 29, 2019 11:18 am

Hey Rusty,
Interesting points and sorry to blah blah blah more but since neither of us is involved in that case this is FUN!
Obviously most important step is determining speed of vehicles at contact and where was the location of each vehicle AT CONTACT.
then back things up.
Second most important step is determining a probable range of WHEN the person in left lane decided to make the lane change?
(since unless you have a video (and OHHHH how i wish red light bandits were still in every state and at every intersection!! They'd have a movie!)

One could interpret your logic to mean that if ANYONE in the left lane of two lanes coming the other way the turning driver could NEVER turn since even if ALL STOPPED one at anytime could change mind and swerve into the right lane and hit the crossing left turning vehicle.

Guess clarification on the legalese of when it is appropriate to change lanes prior to an intersection? Does it apply only to "In the intersection"? Or how many car lengths ahead of the intersection is it considered prudent and legal to change lanes?

i am reminded of my worry when turning right on a light: if only cars in left lane, am i good?
By your logic if one of the cars in the left lane decides a car length or so before the intersection to change lanes, and hits me, am i at fault?
I do worry about that since sure, once in the intersection they can't change lanes but you are saying if 2 car lengths before the intersection they can decide...hmmm...gonna change lanes and BAM hit me that i'm at fault?

same logic for lane change prior to an intersection, particularly if the lane you are in has a stopped left turning vehicle in front of you: i think you have a DUTY to be able to fully make a lane change and then still approach the intersection with caution.
that's me, not legalese...curious what the law will say?

Here's another mind boggle: what if only one car in the left lane, stopped and signalling to turn left but then changes their mind and goes straight? who's responsible then?

In this case: looking at the relative positions of the vehicles at rest from your diagram i believe that the person changing lanes prior to the intersection did so very close to the intersection and was also traveling slow at impact (so accel from stop?), and while in process of the lane change or having just completed the lane changed they decided to steer right (instead of stay straight or go left) and so struck the rear of the car turning in front of them probably outside of the right hand lane.
Had they gone straight i think there would have been no collision.
(this all of course also goes to where and what extent it the damage to the two vehicles, you only showed a diagram so this IS A WAG!!!)

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