What Determines Who Is At Fault In A Car, Truck, Motorcycle, Or Bicycle Accident?

Figuring out who is at fault in a traffic accident is a matter of deciding who was careless. And, for vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured. These rules of the road are the traffic laws everyone must learn to pass the driver's license test. Complete rules are contained in each state's vehicle code, and they apply not only to automobiles but also to motorcycles, bicycles, and pedestrians.

Sometimes a violation of one of these traffic rules is obvious and was clearly the cause of an accident -- for example, when one driver runs a stop sign and crashes into another.

In other situations, whether or not there was a violation will be less obvious -- a common example is a crash that occurs when drivers both merge into a single lane of traffic. These cases may be governed by the law of negligence. A driver, pedestrian, or cyclist who is "negligent" (that is, behaved in a thoughtless or careless manner) will be found at least partially at fault for causing the accident.

To prove negligence, four elements must be met: (1) the driver is legally required to be reasonably careful in the particular situation (this one is a given since drivers must use caution at all times); (2) the driver (or pedestrian or cyclist) was not reasonably careful; and (3) the driver's conduct caused actual injury or damage to someone. (To learn more about the law of negligence and fault in traffic accident cases.

Negligence is a legal theory that is the basis for many car accident lawsuits. If you've been in a car accident and have been sued or are suing the other party, there's a good chance you've heard the term "negligence" kicked around. But what exactly is negligence and how do you prove it? Here's a primer on using negligence as a basis for recovery in car accident cases.

What Is Negligence?

When a person is negligent, it means that he or she has behaved in a thoughtless or careless manner, which has caused harm or injury to another person. A person can be negligent by doing something that he or she should not have done (for example, running a red light or speeding), or by failing to do something that he or she should have done (for example, failing to yield, stop for a pedestrian, or turn on lights when driving at night).

Negligence is a legal theory often used in car accident cases. A driver must use care to avoid injuring other motorists, passengers, or pedestrians -- basically, anyone that he or she encounters on the road. If a driver is not reasonably careful and injures someone as a result, the driver is liable for injuring the accident victim.

Elements of a Negligence Claim

The person who brings the lawsuit (called the plaintiff) must show that the defendant (the person being sued) was negligent. If you are the plaintiff, you must show all of the following:

The law required the defendant to be reasonably careful. In car accident cases, the law requires drivers to be careful when encountering anyone they meet on the road -- passengers, persons in other vehicles, and pedestrians -- so this one is a given. This is called the "duty of reasonable care."

The defendant was not careful. This is called "breaching" (or violating) the duty of care. In determining whether a driver was sufficiently careful, the law compares the driver's conduct with the conduct expected of a "reasonable person." The law asks: How would a reasonable, prudent person have behaved in the same or similar circumstances?

If the defendant's behavior falls short of how a reasonable person would have acted, the defendant has violated the duty of reasonable care. Examples of conduct expected of a reasonable driver include:

  • stopping at a red light
  • watching for crossing pedestrians, and
  • following the vehicle in front at a safe distance.

The defendant's conduct caused plaintiff's injuries. You must also show that the defendant's conduct caused your injuries.

For example, Paula is suing Dan, claiming that she suffered whiplash when Dan rear-ended her car. Paula must provide evidence that the whip lash was due to being rear-ended by Dan and not due to some other accident or event. If Paula suffered whiplash the day before the collision while playing golf, she'll have difficulty establishing that Dan's conduct -- rear-ending Paula's car -- caused her injuries.

The plaintiff suffered losses and/or was injured. Car accident victims are entitled to compensation for injuries, lost wages or earning capacity, pain and suffering, and property damage (for example, damage to a car). If there aren't any monetary losses or provable injuries, the plaintiff can't recover anything. For example, if Paula in the above example doesn't suffer any physical injury, doesn't miss any work time because of the accident, and her car sustains no damage, she cannot recover compensation from Dan because there has been no injury or damage.

The plaintiff must show evidence of his or her injuries and other monetary losses to be compensated. If you are the plaintiff, it's important to keep complete and detailed records of all injuries, medical expenses, and property damage.

Duties Does a Driver Have?

The law requires drivers to use reasonable care to avoid harming anyone encountered on the road. But what exactly does this entail? Here are some examples of specific requirements that the law has imposed. If a driver fails to meet these requirements, he or she may be found to have violated the driver duty of reasonable care.

Driving at a reasonable speed . Drivers have a duty to drive at a reasonable, prudent speed. A person who drives at a speed that is unreasonable in light of the existing traffic, road, visibility, and weather conditions may be negligent. Even driving at the speed limit can be considered negligent if, for example, visibility is low, the weather is bad, or the circumstances warrant particular caution (driving by a school where you can expect children to be crossing, for example).

Vigilance and keeping a proper lookout. Drivers have a duty to be alert and to maintain a careful lookout for other vehicles, pedestrians, and road hazards. Drivers are expected to see the things that an ordinary, prudent person would see. A failure to keep a proper lookout -- by, for example, failing to take care when driving by a road construction site or a school crossing -- can constitute negligence.

Maintaining control of the car . Drivers are expected to keep their car under control by, for example, being able to stop quickly. Negligence may be inferred if a car loses control (such as overturning or leaving the road) for no apparent reason.

Maintaining and using the car's equipment. Drivers are expected to maintain their vehicles in safe working order. For example, lights and brakes should be working properly.

Driver Duties Imposed by State Law

Each state has motor vehicle laws governing how drivers are expected to behave on the road. In certain circumstances, violating a motor vehicle law gives rise to a "presumption" of negligence -- meaning that the defendant must present evidence to prove that he or she was not negligent (rather than requiring the plaintiff to prove that the defendant was negligent).

Examples of conduct that may give rise to a presumption of negligence include:

  • driving under the influence of drugs or alcohol
  • violating right-of-way rules, including a pedestrian's right of way, and
  • driving on the wrong side of the road.

Car Accident Defenses

There are a number of defenses available to a defendant in a car accident case based on negligence. Using these defenses can lower or erase the defendant's liability (that is, the amount of compensation the defendant must pay the plaintiff). For example, if a pedestrian runs into the middle of the road and is hit by a car, the driver may escape all liability or may only have to pay for a portion of the pedestrian's injuries.

Getting Help

Some small car accident cases are straightforward and can be handled without a lawyer. If, however, your car accident case is complicated, involves severe or permanent disability, or involves large damages, consider hiring a personal injury attorney. (

New Jersey's Dog Bite Statute

New Jersey Statutes section 4:19-16 allows a person injured by a biting dog to hold the dog's owner liable if the person was on public property or was legally present on private property when the bite occurred. The statute specifically states that the injured person can hold the owner liable even if the dog has never acted viciously before, and even if the owner did not know of any incident in which the dog had acted viciously before.

New Jersey's dog bite law is a "strict liability" statute. In strict liability states, the owner of the dog is usually responsible when the dog bites someone, even if the owner didn't know the dog might bite and even if the owner took reasonable steps to restrain the dog.

It's worth noting that New Jersey's dog bite law only applies to bites. It does not apply to other injuries a dog may cause. A person injured by a dog may, however, bring a negligence claim in New Jersey.

Negligence-Based Dog Bite Claims in New Jersey

In New Jersey, a person bitten by a dog may sue under the state's dog bite law for damages (usually including medical bills, lost income, and "pain and suffering"). If a person is injured by other types of dog behavior, however, the statute does not apply. Instead, the injured person must seek damages through a negligence claim.

In a negligence claim, the injured person must prove that:

  • the owner had a duty to take reasonable care to control the dog's behavior
  • the owner failed to meet that duty ("breached" it, in legalese), and
  • as a result of that failure, the dog caused harm to the injured person.

For example, suppose that a pedestrian is walking in a public park when a large dog jumps on her, knocking her to the ground and breaking her wrist. Because the dog did not bite the pedestrian, New Jersey's dog bite statute does not apply. Instead, the pedestrian will have to show the court that the injury occurred because the dog's owner did not take reasonable care to prevent the incident -- for instance, by properly leashing the dog in public. Whether or not the dog has acted aggressively before may be important in a negligence claim, because it helps the court determine what measures are "reasonable" for the owner to take. For instance, an owner whose dog has never acted aggressively before may be using "reasonable care" if she puts the dog on a leash, but an owner whose dog is known to try biting strangers may be using "reasonable care" only if she uses both a leash and a muzzle on her dog. In both strict liability and negligence claims, it's important to keep in mind New Jersey's time limits for filing a dog bite lawsuit.

Criminal Liability for New Jersey Dog Bite Claims

An owner of a "dangerous dog" in New Jersey may face criminal penalties if he or she does not follow the state's laws for keeping a dangerous dog. These include rules for notifying local authorities about the dog's dangerous past and taking steps to keep the dog restrained. Criminal cases differ from civil dog bite lawsuits in two important ways. First, a criminal charge is brought by the state or local prosecutor's office, while a civil lawsuit is filed by the injured person directly. Second, in a criminal case, penalties may include imprisonment, fines, or other requirements, while in a civil case, liability is addressed solely through money damages. The owner of a dangerous dog who violates the state's dangerous dog rules, and whose dog injures someone as a result, may face both criminal and civil claims liability.

Defenses to New Jersey Dog Bite Claims

A dog owner facing a civil lawsuit for dog bite or other dog-related injuries may be able to raise two defenses: "comparative negligence" and trespassing. In a "comparative negligence" defense, the dog owner argues that the injured person was partly or wholly responsible for the injuries suffered. For instance, an injured person who was provoking the dog when the dog attacked may be found to be partly responsible for the incident. Under New Jersey's "modified" comparative fault rule, the injured person's damages are reduced by the percentage of fault assigned to the injured person. If the injured person is found to be 50 percent or more at fault, he or she is barred from recovering any damages at all. Learn more: What if I am partly at fault for my dog bite injuries in New Jersey? In a "trespassing" defense, the dog owner argues that the injured person was on someone else's private property without permission when the injury occurred. New Jersey's dog bite statute specifies that in order to recover, the injured person must be either on public property or lawfully on private property. Since "trespassing" occurs when a person is unlawfully on private property, a trespass by the injured person usually prevents him or her from recovering under the dog bite statute. If the injured person was carrying out a legal duty like delivering the mail, however, he or she will not be found to be trespassing and may seek damages under the dog bite statute, even if the person did not have the owner's express permission to be on the property

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