Many commonly used words can mean different things based on not only their context, but also who says them, and who hears them. On one hand, it's interesting that language can be so flexible, but when so much hangs in the balance--such as in a legal case--it can be challenging to make one's self understood clearly when meaning can be so subjective. Therefore, lawyers spend a lot of time fretting over semantics.
No word illustrates this dilemma more so than "accident." Everyone thinks they know what it means, and they say it all the time. The problem is that encoded into the word "accident" is an implication that no one is to blame, when in reality, there is very often someone whose misconduct truly is responsible for another's misfortune. Referring to such events as "accidents" subliminally lets the bad guy off the hook. We need to talk about that and about possible remedies.
The Perceived Meaning of "Accident"
"Accident," technically defined, is "an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury." Hardly shocking. People are familiar with the term; we talk about accidents all the time--not just lawyers, but police, doctors, construction workers, teachers, parents...everyone. The unforeseen can and does happen to anyone. It's a reluctantly-accepted fact of life.
Where things get tricky is when we choose to use the "A word" to refer to events that do not meet the classical definition of an "incident that happens unexpectedly."
You see, personal injury law is NOT built upon the notion that something unforeseen or unpredictable happened, but, surprise, here's some clever loophole by which we can make someone pay our client anyway. Not at all. On the contrary, the foundation of injury law is that no one can be held financially accountable for unforeseen injuries, but someone most certainly can be held financially accountable when they fail to consider how their reckless conduct may hurt someone.
The point is that if an accident is something that can't be avoided or foreseen by a reasonable person, and lawyers sue people only for misconduct that a reasonable person can foresee causing harm to someone, then lawyers don't sue people for accidents at all. So why are these lawsuit-inspiring events referred to as accidents? It turns out the answer has to do with propaganda promoted by the very people who often get sued.
How The Term "Accident" Became The Go-To Word For Injurious or Fatal Incidents
People often are not aware that this word was appropriated by businesses in the early 20th century--a period notorious for unsafe, even fatal industry practices--to help absolve themselves of guilt in instances of worker injury. The Jungle, a groundbreaking book by Upton Sinclair, exposed the deplorable conditions that meat-packing workers were subjected to in the early 1900s. It is perhaps the most famous example of factory owners' generally blasé attitude toward employee safety. As public concern over industrial accidents began to grow, big business subtly waged a war of semantics. The word "accident," when attached to some horrible disaster, provided them the opportunity to recognize that adverse events had occurred, while also implying that they could not have been avoided.
The developing automotive industry picked up on this trick in the 1920's, as cars of the time had an atrocious safety record. Initially a gambit by auto-makers to shift blame from car to driver, it developed into a method of suggesting no one and nothing could be held responsible for damages caused by the rickety machines.
"Accident" is still used all the time, from stubbing one's toe to shooting someone with a gun believed to be unloaded. It is still the go-to term for car crashes--a quick Google search of "car accident" renders 350 million results in the blink of an eye. News reports, personal accounts, and opinionated bloggers (ahem) all weigh in using that term as their starting point, and that isn't good.
The textbook definition of "accident" isn't actually wrong, of course, but the way we now apply it is problematic. Many argue that "accident" suggests random mishap--an unforeseeable hiccup in life's unknowable scheme. These accidents couldn't have been prevented with forethought, and no one is accountable for causing them.
Obviously that's wrong, as the damages caused in most of these cases is absolutely foreseeable; injurious situations usually telegraph their punches way before the damage is done. Negligent gun-handling, drunk driving, workplace safety violations--these are all scenarios with clearly-liable parties that ignored basic rules and safety precautions and got someone hurt. In the end, though, they are still reported in a way that implies they were inevitable.
The overwhelming majority of auto collisions can't really be classified as genuine "accidents." Statistically only 6 percent of crashes are caused by unpredictable factors like weather or vehicular malfunction. The vast majority of wrecks are caused by risky driver behaviors like impairment, texting, or otherwise disregarding the hazards of the road.
Dr. Mark Rosekind, head of the National Highway Traffic Safety Administration, is of a similar opinion about using the term "accident" in its application to traffic collisions. He was recently quoted as saying:
"When you use the word 'accident,' it's [understood] like, 'God made it happen.'...In our society, language can be everything."
To be clear, the law does recognize that some events are unforeseeable, uncontrollable, etc. This is referred to as an Act of God. It's worth noting that someone can bring up an Act of God when they are defending themselves from an accusation. For instance, Lawyer A says that his client was injured when a car slammed into her as she was walking down the street. Lawyer B acknowledges that such an event transpired, but since his client's car only struck the injured plaintiff because a tornado sent it flying through the air, the jury should consider the event to be an Act of God.
Conversely, though, if a the driver of a car was texting while driving and ran through a stop sign, hurting an innocent pedestrian, that's most certainly not an Act of God. Why? Because it was easily foreseeable to the defendant that texting while driving could hurt someone. If texting and driving can't be proven an Act of God, then, by all cognizable legal doctrine, it is not an accident. Unless God sent the text, but our research shows no such documented events.
Adjusting Our Word Choices
If we want "accident" to fall out of favor, we need to change the game up and provide a different framework for documentation, reporting, and even conversation.
Some federal officials as well as numerous state and local authorities have begun to phase out "accident" from their reports in favor of the more neutral term "crash." For instance, the Texas CR-3 "police report" is not called an accident report. Instead, it's called the CR-3 Peace Officer's Crash Report. This word still delivers the point, even upping its perceived importance, without implying any further assumption about the facts of the matter. At least 28 state departments of transportation have gotten on board with the initiative, moving away from citing "accidents" in official reports.
Citizen initiatives such as Crash Not Accident and Drop the A Word are doing similar work, requesting that "accident" be removed from our vernacular when it comes to injury. They argue the word "accident" presupposes that no one need be held responsible for damaging events. Relying mostly on social media to spread their messages, relatives and friends of deceased parties insist that those slain in the majority of crashes were not victims of "accidents." It's hard to disagree with their rhetoric.
Very rarely do people intend to lose control and hurt someone else, but decisions were often made before the fact that put them in such a position. The law lends greater weight to results than it does intent, so whether I meant to run a stop sign isn't as important as what happened after I did.
Reinforcement from SCOTUS
A recent decision by The Supreme Court of the United States seems to be in agreement with this idea that parties who knowingly ignore consequences should not be allowed to cite "accidents."
Delivering the majority decision in Voisine v United States, Justice Elena Kagan eloquently stated:
"Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another."
While this decision was rendered with relation to Voisine's topic of gun ownership by perpetrators of domestic abuse, its wording resonates with all manner of claims involving accountability for reckless conduct. Parties comfortable disregarding the potential hazards coming from their actions are endangering those around them, and referring to that as an accident is incorrect, so sayeth the Supreme Court.
Learning When to Use "Accident"
I'm not here to suggest eliminating a word entirely from your vocabulary. I'm not the language police. Besides, some people best identify with the term "accident" and don't see a need for a semantic shift. It's not a terrible term, it's just not the best one.
What I advocate here is a gradual replacement of "accident" with "crash" as it applies to liability. The term doesn't have the same implications, and it allows for the recognition of the human error/negligence responsible for the incident.
Here's a couple of examples:
- A drunk driver failed to anticipate or respect the possible consequences of becoming impaired. It's no longer an "accident" when that vehicle wrecks; it's a crash.
- A not-so-smart driver checking his smartphone while driving and colliding with another vehicle causes a crash, not an accident.
If a party acts with disregard for possible repercussions, he/she can't convincingly state that the consequences are "accidental." That's negligence, friend. Knowingly performing an action that has a strong likelihood of damage--failing to exercise reasonable or prudent care--is negligence.
We just can't call them "car negligences." Doesn't roll off the tongue. But car crash? There's a winner if I've ever heard one.
It is worth noting that in the legal world, these distinctions have been observed all along. An injury lawyer who tells a jury that his client was injured in an "accident" is just asking to get entangled in a semantic battle. Drafted documents and statements are careful to avoid language that could potentially absolve a liable party.
It's probably about time, though, that the population as a whole moved away from encouraging this false narrative out of the gate. If the world at large stops using the term, then maybe we can finally stop using it on our website while banishing it from all legal pleadings.