The Groth Law Firm Podcast – Episode 3 – Rear end car accidents…or should we say crashes?

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In episode 3 of the Groth Law Firm Podcast, Jon talks with Attorney Mitch Raasch about why you shouldn’t say rear end accident, being at fault, and not following cars too close.

Transcript:

Jon:

Hi, everybody. Interesting conversation we were just having about rear-end car crashes. And what I was trying to get to is how do we describe these? We have people who say accidents. I don’t really care for accidents.

Mitch:

Crash.

Jon:

Crash? Rear-end car crashes? It’s a lot of hard Cs. Car crashes. We have rear-end car wrecks. Rear-end car accidents. Rear-end car crashes. Sometimes people say incidents. But incidents, that’s more like for premises liability, when you fall, or the ice and slip, and that kind of stuff.

Jon:

What else do we have? I think that’s probably the main ways that people describe them to us. What do you think is the number-one way that somebody describes a car matter? And I won’t say the word. When they call you and say, “Hey, I was just involved in a car matter, car versus car.” Which word do they use?

Mitch:

Accident.

Jon:

Accident?

Mitch:

Yeah.

Jon:

I think so, too. I agree with you. I think it’s car accident. I think there’s a conspiracy about that, because accident implies no fault. So I think that’s the insurance companies’ way of getting that into our common vernacular, into the culture. That it’s a car accident, because then nobody’s at fault. That’s why at trial, you want to talk about car crashes. Because a crash, I would say, implies somebody’s negligent.

Jon:

If you’re not looking where you’re going and you hit somebody in front of you, you rear-end them, you’re responsible. It’s not an accident. You didn’t look where you were going. So then it’s a car crash or a car wreck, not a car accident.

Mitch:

As a fellow personal injury attorney, I agree with that 100%.

Jon:

As a fellow personal injury… Well, as somebody who advocates for the victims, yeah. We have to advocate for our side. And insurance companies are certainly spending kajillions of dollars. I don’t know if we can spell kajillions. Is that K, kajillions of dollars?

Mitch:

Yeah. I think it’s K-A-J-I-L-L-I-O-N.

Jon:

Kajillions of dollars advocating for the defense. So I guess just in general, car crashes and rear-end car crashes. I guess the reason that I wanted to talk about this today is, we had that matter we were talking about this morning. We meet about all of our cases every week. And one of the conversations we had today was that dump truck versus car.

Jon:

And I would say it’s a rear-end car crash. They were merging at the same time. And our client’s car was ahead of the dump truck. How did the cops describe that? It was a pitting, they pitted the vehicle?

Mitch:

Yeah.

Jon:

In NASCAR, what do they say? If you’re not bumping, you’re not racing?

Mitch:

Yeah.

Jon:

Something along those lines.

Mitch:

Rubbing’s racing.

Jon:

Rubbing’s racing. Yep. So that’s what happened in this case. Where the dump truck was behind, I would say it’s a rear-end. But what jury instructions would we use to help our client prevail in that case? I think the easiest cases are ones where our client stopped at a stop sign. And somebody’s on their phone, and they’re looking or posting on Facebook, and they smash into our client’s car. That’s pretty easy. There’s a jury instruction directly on point. I don’t know if you recall which one that is. While you’re looking at your memory banks here.

Jon:

Ultimately, we have to begin with the end in mind, right? That’s what you want to do, is try to figure out exactly what we’re going to have to show to a jury. Because ultimately, that’s our job. Is to get the case ready as if we were going and presenting the facts in front of a jury and a judge. And then the jury helps us decide who’s responsible, who’s liable, and then what the damages are. We always look at these really beginning with the end in mind. You’re looking at the jury instructions, because literally that’s the last thing that’s said to the jury before they go into their…

Mitch:

Deliberations.

Jon:

Deliberations. Into the court conference room or to the deliberation room in general. But before they walk over into that secluded area, they’re instructed on what the law is. And that’s why we have the Wisconsin Civil Jury Instructions. So with rear-end accidents, I think it’s probably you’re following too close. Or what do you think, Mitch?

Mitch:

Yeah. I think one that you’re getting at here is Operation of Automobile Following Another, which says that the driver of a motor vehicle should not follow another vehicle more closely than is reasonable and prudent. So I think that’s right on point here.

Jon:

So you just simply can’t be, I was going to say something that’s probably inappropriate for a family podcast or a family conversation, but you can’t be too close to somebody’s rear end. You have to give them some space.

Mitch:

Correct.

Jon:

Who was your driving instructor? Was it Mr. Roche? Rouche? Do you remember?

Mitch:

Yes.

Jon:

Was it Mr. Roche? So this is a little known fact, Mitch and I went to the same high school. I was a couple of grades ahead of you in high school.

Mitch:

Three.

Jon:

Three, yeah. Yeah, right. Three. More like 30. I always remember him saying, “When you’re looking out the front of your car, you should be able to see the back tires, at least the back tires, of the car in front of you.”

Mitch:

Yeah.

Jon:

Which I think is pretty much on point. Common sense and the law sometimes align, and I think that’s the case with this particular jury instruction. It’s interesting, I think if people were to abide by this common sense act, we wouldn’t have half the car accidents. I don’t know how many, but there’d be a lot fewer, because you’re paying attention. Even if you’re distracted, if you’re further away, you’re not going to have that wreck. Interesting. What was the case you tried this year? What were the facts of that case?

Mitch:

That case, liability was not an issue at all. What was at issue was damages. It was a woman who had preexisting arthritis in her right knee. She got into a car crash. As I said, she was not at fault at all. So that was the issue.

Jon:

Was what kind of car crash was it?

Mitch:

It was a rear-end accident.

Jon:

Okay. All right. With those kind of cases, where the defense stipulates to liability because they realize the jury instructions are directly on point. Right?

Mitch:

Correct.

Jon:

Okay. You have to look out and you can’t avoid, or you can’t pretend like something’s not there. If something’s open and obvious, I’ll say, “The law says that you have a duty to see what’s obviously there.” There’s a jury instruction directly on point, I actually had one of the clerks pull this one so I could read it, because this is much more eloquent than I could ever be.

Jon:

That a driver owes no duty to the driver of the vehicle behind him except to use the road in the usual way, keeping with the laws of the road. So what this means is, if you’re driving, and you’re doing what you should do, you can expect that others that are behind you have a responsibility, have the duty, to look out and see that you’re there. You don’t have to, and this is crazy to even say, you don’t have to avoid a car crash from the front. If you’re in your lane, you’re safe. And the cars behind you have a lookout responsibility, a lookout duty.

Jon:

There’s also some case law about other aspects. I’m not going to get into that, but I think this is interesting that we’re looking at all these different things and what the law says and what common sense is. And a lot of times they’re aligned.

Mitch:

And Jon, I actually want to go back and correct myself there. I was mixing up my cases. The case I took to trial, that was actually the vehicle took a left-hand turn in front of my client. And I think going to your point here, a lot of times what the insurance company will do, not in my case, but what they’ll say is, “Even if your client is going straight through a green light, and the other party takes a left and fails to yield, just because you’re there, you still have that duty to look out.”

Mitch:

So you have that duty to try to evade the accident no matter what, even if you’re going straight through a green light. So that’s one of the things that the insurance company will do is say, “You should have saw them. You have a duty to look out and try to avoid the accident.”

Jon:

We literally now have a pile of jury instructions in front of us. One of them is Turn or Movement: Ascertainment that Turn or Movement Can Be Made with Reasonable Safety: Lookout.

Jon:

This statute requires the driver of the turning vehicle to use ordinary care to make an efficient lookout. This calls for the driver to use ordinary care to determine the presence, location, distance, and speed of any vehicle that might be affected by the driver’s turn or movement.

Jon:

After having made these observations, the driver must also use reasonable judgment in calculating the time required to safely turn or move without interfering with other vehicles within or approaching the vehicle’s course of travel.

Jon:

I think that applies for almost every single right or left turn that we ever make, right?

Mitch:

Yeah.

Jon:

And it’s looking out, making sure you see that vehicles are there, and that they’re going to be safe. And the mention of speed and distance, that they’re far enough way that you can make the turn.

Jon:

We were walking my son across the busy street yesterday, and we had him lead the way, and said, “Okay, now when do you think it’s safe to go? We’re going to follow you.” And he stepped out and looked to his right. And then looked to his left. And I grabbed him and pulled him back, because when he looked to his left, the car that was way down the road was way down the road. And it had to have been going, in my opinion, 70 miles an hour. Something crazy for a residential area. But that thing was so far away that it would’ve been probably safe to cross, except that car was speeding.

Jon:

I don’t know if it was twice the speed limit, but pretty darn close. So those kind of things, I think, are important that you ascertain that what your movement is can be made with reasonable safety. Interesting.

Jon:

And I guess that goes also with rear-end car accidents. That as you’re proceeding forward, or as you’re proceeding, and maybe you’re turning and passing a car in front of you, that your movement can be made with reasonable safety. You may think that the light turns green and the car is going to move, and you’re behind it, and you’re waiting for that car to move. But it doesn’t, because they’re on their phone or something else.

Jon:

You have a obligation as the car behind you, or as the car in the rear, to wait for that car, or to ascertain that you can make your next movement with reasonable safety. So you can turn the left or turn the right, or whatever you have to do to avoid that car. Or, God forbid, you have some patience and you wait. But everybody’s in a rush nowadays.

Jon:

Anyway, so there’s all kinds of more instructions that I guess we could talk about, but I don’t want to bore everybody. This is interesting for me. I don’t know.

Mitch:

Me too. I don’t know if you want to get into, it’s not just drivers, it’s pedestrians as well. They have a duty to look out as well when you’re crossing the street. Whether it be in or outside of the crosswalk, you still have a duty to look out.

Jon:

That goes to our most recent trial. We should actually put a pin in this conversation and maybe bring in Anna or Jeff. Well, you were there too. And talk more about that. That’s when maybe we actually get the actual jury instructions from that.

Mitch:

Yeah.

Jon:

And the verdict form, that’d be a good conversation. Because again, these are all look out jury instructions. So this applies for everything. People who are walking across, pedestrians, bicyclists, motorcyclists, everybody who is… What are those things called, Bird scooters?

Mitch:

Yeah. There’s Birds, and then…

Jon:

What’s the other one?

Mitch:

Lime.

Mitch:

Lime?

Jon:

Lime is one of them, yep.

Jon:

Lime scooters and Bird scooters?

Mitch:

There’s a few more out there now.

Jon:

There was one in front of our house not too long ago that was maybe black with white lettering. Is that Bird? ‘Cause Limes, I assume, are green.

Mitch:

I think they’re green and black, yeah. Or green and white. They’re fun. Have you ever been on one?

Jon:

I have not. I don’t want to be on one. I’m afraid that I would immediately run into a tree and break my arm.

Mitch:

Yeah. I don’t blame you.

Jon:

Yeah. I probably should, just to say I was on one.

Mitch:

Yeah.

Jon:

But then my concern, back when I was a kid, I used to skateboard, and I always was afraid because this happened. For a long time we didn’t have a paved driveway. We had a gravel driveway, and you had to go onto the street to actually skateboard. Because the street was asphalt. But even then it was a patchwork of holes in the asphalt.

Jon:

I would go out there and I would all the time get a rock stuck in my skateboard wheels and then stop and then get flown, a hundred feet it seemed. Then get back up and do it again and then fly off again. So that’s my fear, is that these things will get stuck on some rock somewhere because we’re not on somebody’s sidewalk.

Mitch:

And you’re going a little bit faster than a skateboard.

Jon:

Yeah. Well certainly me on skateboard. I’m going faster than I was. Interesting. Yeah, someday. How do you use them? Do you just use a credit card and then you just go?

Mitch:

You have it through your phone. You have the application on your phone. You have the credit card entered into the application. It gives you a certain amount of time for the amount of money that you pay.

Jon:

Okay. So how does that work, then? This is a whole other conversation we should have. We should pull some jury instructions, ’cause this is interesting. How does that work with those Birds or the Limes, I guess scooters in general, if you’re on the sidewalk and you’re proceeding, but you’re going pretty fast. Who has the right of way, a pedestrian or the scooter? A scooter and a bicyclist? A scooter and a pedestrian?

Jon:

Of those three, which ones have, in essence, the right of way? Or does it turn into really like the road, where you have to stay on the right and oncoming traffic, quote unquote traffic, has to stay on the left? I don’t know.

Mitch:

Yeah.

Jon:

Now that’s on sidewalks, but what about if there are no sidewalks? Let’s say you’re out in the suburbs, it’s in Brookfield I’ll say, where there may not be some sidewalks around. And you’re on a Bird scooter, and there’s kids that are walking around, and a bicyclist, and a car. Who’s responsible to yield to whom? It’s a great question.

Mitch:

Yeah.

Jon:

Maybe we should one of the clerks on that. We can talk about that next time, ’cause that’s fascinating. I haven’t had any of those specific cases. I’m sure they’re out there. They have to be with all the Lime scooters and Bird scooters that are around.

Mitch:

Yeah. Definitely.

Jon:

I’ve had some Bird scooters that just were crossing the street, just like a common pedestrian versus car accident, but I haven’t had anything where it’s Bird scooter versus bicyclist versus pedestrian versus car, or whatever. It’s bound to happen. Interesting stuff.

Jon:

All right. Sorry. Now we’re going off on a tangent here. Thank you for dropping everything, Mitch, and talking about lookout. This is interesting, because we initially wanted to talk about car crashes and car wrecks and car accidents, and exactly how we should describe them as it relates to a rear-end car wreck, rear-end car crash.

Jon:

I think from now on, we just have to tell everybody we’re going to call them car crashes, and they’re rear-end car crashes, and make sure that we can at least do our part to change the way insurance companies have gotten into our brain and tried to make it an accident where nobody’s at fault.

Jon:

Let’s try to make it so we can do better by our clients, because most of the time somebody is at fault because they weren’t paying attention. All right.

Mitch:

Yeah.

Jon:

Thanks, Mitch.

Mitch:

Thank you.

Jon:

Have a good weekend.

Mitch:

You too.

Jon:

See you.

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