NBC News Gives Its Trusting Readers a Wrong Interpretation of the Law.

By Michael GrossmanSeptember 05, 2017Reading Time: 4 minutes

A news piece I recently encountered tried to summarize Texas policy about certain kinds of auto accidents, but the piece itself shows a highly flawed understanding of the very laws it attempts to explain. It's wrong of them to spread that faulty information, considering how many readers will likely accept their version as gospel truth--after all, they're viewed as trusted purveyors of facts, even in this bizarre age of "fake news" and yellow journalism. It's important to set the record straight before their misinformation stops an injured party from seeking compensation.

What Happened?

NBC reported that a bus from the Denton Independent School District (DISD) crashed into a pair of parked cars on a residential street in February. Full of students at the time of the collision, the bus was reportedly the only vehicle in motion on the quiet avenue at the time. Fortunately, no one was injured in the crash.

Responding to the incident, Denton police took a statement from the bus driver in which she claimed to have passed out behind the wheel. One of the vehicles hit was an SUV owned by local man Richard Ellingson, who quite reasonably approached DISD to compensate him for damages caused by the bus. I'd do the same; if a big yellow school bus flipped my SUV over like a helpless turtle, I'd head straight to the place that dispatched it. The school district's insurance company, the Texas Association of School Boards, refused to pay for the accident, claiming nobody could have known the driver would have such issues and she therefore "wasn't negligent or liable."

Ellingson's own insurance only covered basic liability, and also wouldn't pay for the damages to his vehicle. He still has the option to sue the district directly, but it's likely that the cost of suing would be greater than the worth of his SUV. Denton ISD told the press that their risk management department is reviewing the details of the situation to see if they can get Ellingson's case reviewed again, but the idea of any government agency working overtime to assert its own liability seems a little far-fetched.

More troubling than the insurer's side-step of the driver's responsibility, though, is how the news report chose to excuse it.

NBC Got Their Facts Wrong.

Having relayed the facts, the article's author Wayne Carter proceeded to throw out this baffling conclusion:

If a driver has an unknown medical issue and hits your property, you are responsible for the repairs.

That's it. Case closed. No respect for individual circumstances, no investigations, no nuance. According to that statement if Betty Blackout drives a bus into Joe Sixpack's SUV, ol' Joe is going to pay for her mistake every time.

In a way I get how an improper (or absent) analysis of the situation could lead someone to a statement like that. At first blush, the Texas Association of School Boards appears to have cited the Unavoidable Accident Defense established in the case of First City Nat. Bank of Houston v. Japhet (1965):

The operator of a motor vehicle who becomes suddenly stricken by a fainting spell or otherwise loses consciousness while driving, and for this reason is unable to control the vehicle, is not chargeable with negligence or gross negligence if his loss of consciousness is due to an unforeseen cause.

Itself reminiscent of the Act of God defense sometimes used in traffic accident litigation, the Unavoidable Accident Defense seems like it allows insurers to distance themselves and the offending driver from liability. If it seems like this defense couldn't possibly be used for positive purposes, keep in mind that it actually exists to fend off claims for compensation when the defendant was involved in, but didn't cause, the accident. It's an allowance for situations where a crash was caused by nonhuman or uncontrollable factors. By invoking this defense, attorneys essentially ask juries to accept that no one can truly be held accountable for an accident. It isn't as airtight as it's being portrayed by NBC, though, and part of that is because it's often used by insurance carriers and attorneys to protect their clients even when they're at fault.

How Defendants Abuse the Unavoidable Accident Defense

Given that most accidents are completely avoidable with sufficient foresight, it's tough to think of a legitimate use for the unavoidable accident defense. Usually when insurance attorneys use this defense they're trying to convince the jury that no one is at fault even though the defendant, their client, clearly is. This often plays on Texas juries' general hostility toward civil litigation; the public isn't friendly to "the lawsuit type" in the Lone Star State.

In scenarios where a jury could potentially be convinced to deny the plaintiff an award, insurance carriers often try to nudge them toward the belief that the accident was out of anyone's control. They blame medical conditions, visual obstructions, almost any type of inclement weather, or third parties that "came out of nowhere" when arguing for their clients. The point is always to suggest that external factors were acting against the defendant, but there's almost always an identifiable act of negligence that went along with those factors.

In the specific instance of Denton's bus driver, the unpredictable influence seems to have been a spontaneous blackout. Obviously that's a terrible condition to suffer and I'm glad no one was injured, but is it really that simple? Key to Japhet's context is that a loss of consciousness must be "due to an unforeseen cause." In other words, any victims may want to investigate the circumstances of such a crash. A defendant who blacked out might have done so for any number of reasons, many of which would have made it entirely foreseeable for one to occur that day. Many medical conditions can cause brief lapses in consciousness, as can external factors that might not immediately be obvious. Unless this was literally the bus driver's first blackout and no one had ever told her it was a concern, there's a strong chance this event was foreseeable. If a jury agrees, Japhet's precedent wouldn't apply.

It's that disrespect for additional factors that concerns me. News sources are meant to deliver objective information to help audiences understand issues. Offering flawed summaries of complex legal issues like foreseeability actually creates a climate for misunderstanding, and leaves readers worse off than they were to start. Without looking more closely at an offending driver--her medical history, driving record, and any other factors that could have contributed to a loss of consciousness--it's not right to shrug and tell victims (and the curious public) "them's the breaks."

I get why insurance doesn't want to pay out. It's a business, and part of protecting what it has built is finding ways not to give away any more than it's legally obligated to. For ignorant news sources to say that these defendants are immediately exonerated thanks to "The Law," though, and then to amplify that message through nationwide affiliates and the filter-free megaphone of the Internet, is to have them ignore due process and try to skip straight to an unsatisfying, justice-free conclusion.