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Car Accident Theory of Negligence: Failure to Take Evasive Action

Under Texas law, when you sue someone who caused you to sustain injuries in a car accident, you must articulate a theory of liability. In other words, you must explain to the court, legally speaking, what the driver did wrong. Moreover, this theory of liability needs to be one that the court finds acceptable.

Naturally, as thousands of car accident cases have wound their way through the court system, a collection of often-used theories of liability is created. One such theory is called “failure to take evasive action,” and/or “failure to take proper evasive action.” In this article, the Texas car accident attorneys of Grossman Law Offices will explain how this concept works.


Questions Answered in this Section:

  • If my car spins out and someone rear-ends me, am I liable for the accident?
  • If I’m drawn into an accident that occurs ahead of me, what’s my liability?
  • What happens when someone tries avoiding an accident, but only causes another accident?

What does “failure to take evasive action” mean?

The law requires drivers to keep a look out for danger on the road, and to take steps to avoid and accident, even if turns out that another party was ultimately in the wrong.

There are several instances in which this applies. For example, when a vehicle pulls out of a parking lot, when a child runs out in front of a car, when a car driving ahead of a vehicle suddenly brakes, or when a vehicle on the highway comes upon an accident on the road. The law says that when these things happen, other drivers are required to try their best to avoid them because they’re foreseeable accidents.

Examples of Failures to Take Evasive Action

Let’s flesh out one of the examples from above. A case was once brought to our firm in which a young man had lost control of his vehicle while driving down the highway. He spun out and crashed, with his vehicle coming to a stop in the outside lane of the highway. His vehicle was t-boned by an 18-wheeler traveling behind him, and the young man died. We were contact by his family, who asked us to look into the accident. We did, and discovered that the 18-wheeler involved in the crash was equipped with a dashboard camera. The trucking company put up quite a fight when we requested to look at the footage from the accident, but the court ruled in our favor, and the trucking company was told to give us access to the footage.

After watching what the truck’s camera recorded, we understood why the trucking company put up such a fight. We had been made to believe that the 18-wheeler crashed into the young man’s vehicle almost immediately after he lost control and crashed. That wasn’t the case. The footage showed that the 18-wheeler crashed into the young man’s vehicle more than a full minute after the initial crash. The driver had around a 1,400 ft. line of sight down a clear highway, but didn’t even try to avoid the accident because he was watching a movie on his cell phone, as the driver’s camera illustrated. The accident was completely avoidable, yet the 18-wheeler crashed into the young man’s vehicle and killed him.

Rights of Passengers How the law addresses injuries of passengers...Read More >

In yet another case our firm took on, a woman pulled out from a side street into the path of an 18-wheeler. The driver of the truck saw the woman, and admitted as much to police investigating the crash. Evidence showed that he had at least ten seconds to avoid a collision with her vehicle, yet for some reason he didn’t. Instead, he crashed into her vehicle, killing her and her infant son. The truck driver would later tell police that he could have stopped, but figured he had the right-of-way, so he didn’t.

In each of these incidents, the driver of the 18-wheeler failed to take evasive action. In both incidents, the accident was avoidable. Because they failed to avoid the accident, the law holds them responsible. To the uninitiated, it may seem as if these laws are used to blame people, even when the injured person did something wrong. However, this isn’t the case. In the end, the law is telling drivers that they don’t get a One Free Crash card just because someone else did something wrong.

Drivers are always required to take reasonable steps to avoid and accident. If an accident can’t be avoided because of how quickly a situation occurs, no lawyer worth his salt would try holding those involved accountable. What we’re talking about here are those circumstances in which a driver could have reacted, but didn’t.

Failure to Take Proper Evasive Action

When we speak of failing to take proper evasive action, the emphasis is on the proper. Sometimes, people take evasive action, but that action ends up only making things worse.

For example, lets say that John is driving north through an intersection, and someone approaching from his right runs through a stop sign. If John sees that and cuts his wheel sharply to the right, rolling his vehicle and hurting his passenger, well, that’s worse than braking or simply swerving. This is something a driver can be held responsible for.

The Details Matter

The difference between the negligent act of failure to take evasive action and an unavoidable accident will often come down to a matter of a few seconds of reaction time. As such, being able to account for every single event in the course of an accident is of the utmost importance. Obviously, this requires an accident to be thoroughly investigated. If we go back to the first 18-wheeler accident we mentioned, when the case was first brought to our firm, we had no idea that the truck driver had done anything wrong. It was only after investigating that we discovered the driver, through his inattention to the road, had caused the young man’s death.

Evidence in some cases can be very easy to read. In others, it can be very complex. The law firm that you hire to investigate your accident will have to have experience investigating accidents like this. And ours does. We’ve won countless cases, and have the experience it takes to get to the bottom of any crash. If you’ve been in a car accident that was caused by a distracted driver, give us a call at 1-855-326-0000 today.


Related Articles for Further Reading:

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