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Failure to Apply Brakes: A Texas Car Accident Negligence Argument

There are many different car accident negligence allegations that are used by attorneys. In this article, our Texas car accident lawyers will explain how the “failure to apply brakes” negligence argument works, when it applies, and the typical juror’s outlook on this theory of liability.

How Negligence Allegations Work, Generally

When you file a lawsuit stemming from a car accident, the court requires that you explain what the other person did wrong, in language that the court understands. To put it another way, you must provide the court with a “theory of liability,” which is essentially the reason that you believe, under the law, the other driver is responsible for your injuries.

At the heart of any personal injury case’s theory of liability, there must exist an allegation of negligence. You see, only drivers who are found to be negligent by a jury are required to pay their victims, much the same way that only murderers who are found guilty by a jury will go to prison. So when a car accident is caused by the other driver failing to apply their brakes, you can’t just file a lawsuit that says the other driver is liable because they didn’t brake. It’s more complex than that, and you have to explain how their failure to apply their brakes is indeed an example of negligence.

In other words, if you want to sue someone, you need to tie the thing they did wrong into a negligence argument to be used against them, and then explain to the court how thier negligence makes them liable. And, of course, they will have an opportunity to form defense argments to persuade the court that you are wrong.

Is “failure to brake” negligence?

Yes, usually. Under the common law, all drivers are required to behave as a “reasonably prudent driver.” That is to say that all drivers are required to handle whatever comes their way on the road as any other normal person would. So when one strays from that responsibility by responding to some road hazard in an abnormal way, they have committed an act of negligence.

In any given accident case related to an alleged lack of braking, a jury would be asked whether or not the defendant’s failure to brake was indeed an act of negligence. Consider the following:

  • Bob is driving down street and the car in front of him slows for a deer that is running across the road. Bob rear-ends the car without hitting his brakes. The jury would likely says that’s a failure to apply brakes and Bob is negligence thusly.
  • Steve is driving down the street when a hurricane descends upon his town, and a strong gust of wind suddenly pushes him into the car in front of him. Even though he never touched his brakes, which is technically a failure to apply brakes, it is not one which a jury would conclude is negligence, since he did not violate the reasonable person standard. The way the court would see it, it was the wind that’s really at fault, not Steve, no matter what he did with his brakes.

In short, under normal circumstances, failing to apply one’s brakes is negligence. But under some circumstances, it’s just a coincidental thing that happened, not negligence. It’s up to a jury to decide when any given scenario is or is not negligence.

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Many drivers claim their brakes didn’t work.

You can’t have a discussion of the “failure to apply brakes” negligence argument without also discussing the most common excuse used by people who didn’t brake properly: The “my brakes didn’t work” defense.

The thing is, there are some people who will legitimately have their brakes fail, through no fault of their own, and, try as they might, they cannot stop their car because of a brake failure. If such a person hurts you, that’s not negligence, at least not on their part.

But most of the time that people claim their brakes didn’t work, one of two other explanations is more likely:

  • They used their brakes wrong
  • They’re just lying

Brakes are not a magical device that can stop any car at any speed, over and over again, without suffering some degradation to the effectiveness of the system. Any car wherein one slams on the brakes will require some amount of time and distance to come to a stop. If the driver of a following car hits their brakes but they still hit the car in front of them, that doesn’t mean by default that the brakes didn’t work. It probably means they didn’t apply the brakes early enough or allow themselves enough distance between cars for the brakes to do their job.

Likewise, if someone is driving fast and they brake and speed up, brake and speed up, brake and speed up, a few times, their brakes will become “heat soaked” and will no longer be able to function properly. Again, that’s not the brakes’ fault; no braking system, no matter how advanced, can withstand being over-used. Most passenger cars (unless they’re negligently designed) can withstand multiple hard braking maneuvers in a row before they suffer form heat soak, so when heat soak truly causes the braking system of a car to fail, it doesn’t take a rocket scientist to figure out that the driver was driving in an unsafe manner immediately before the accident. You have to really try to overheat most brakes.

But the most common excuse we hear (and, I can only imagine that cops hear this from every knucklehead who’s not paying attention to the car in front of him and rear ends them) is that the brakes mysteriously stopped working, even though they’re working again by teh time the cops arrive. That’s nonsense.

When some defendants make this argument and sticks to it, unwilling to admit they were lying, we will have their brake system tested. As you’d guess, no one’s brakes that we’ve ever tested under these circumstances have ever failed in testing. They’re always lying.

Lastly, if a car’s brakes fail and the owner/driver of the car really had no idea it was going to happen, then it’s not their fault, and perhaps the manufacturer of the car or the mechanic who was supposed to work on the brakes is to blame. But the more likely scenario is that if there is a brake problem, it’s probably something the driver knew about, so if they did and they ignored it, that still makes them responsible since they’ve improperly maintained their vehicle.

You may be wondering, “I thought this article was about not applying brakes, and the above was about applying brakes the wrong way. What gives?” Legally, it’s basically the same concept, only we call it “failure to timely apply brakes” when someone brakes too late rather than not at all.

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How juries view this theory of liability.

Of all of the convoluted and technical theories of liability that juries hear from lawyers on both sides of a car accident case, the one that is most clear and usually elicits jury outrage is an accident wherein it’s shown that the defendant never touched their brakes. That usually means that they were not paying attention, and there are few things a jury despises more than an inattentive driver.

Call our attorneys for help in your car accident case.

Attorney Michael Grossman and the other lawyers and staff of Grossman Law Offices have spent 25 years representing the victims of car accidents. We know how to win. If you or a loved one has been injured in an accident where the other driver failed to brake or failed to brake appropriately, call us at (855) 326-0000. Our attorneys and staff are ready to help.


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