Whenever a car accident occurs in which a vehicle hits a pedestrian, the result is often fatal, and if not fatal, results in serious personal injury that has lifelong damage. There are a variety of ways a pedestrian can be hit by a car, but some accidents do not involve pedestrians in the typical sense of the word.
A recent news article from the CBS Local Boston describes one of these accidents that unfortunately proved fatal for a 10-year-old girl. In that accident, which occurred on the Massachusetts Turnpike (Mass Pike) outside of Boston, two cars had been traveling together to New York and were trying to stay close to each other, as people often do when they are driving in more than one vehicle.One of the vehicles was a 2011 Toyota Camry, and the other was a 1999 Jeep Wrangler. The Jeep driver realized he had a flat tire and pulled over to the side of the road. The Toyota driver pulled over as well, in front of the Jeep, so that he could offer any assistance that was needed in changing the tire. The 10-year-old daughter of the of the Toyota driver also got out of the vehicle to stand with her father.
As our Boston car accident lawyers can explain, being on the side of a highway is extremely dangerous. Any police officer or state trooper knows they are likely to be killed by another car when doing a routine traffic stop than they are from being shot by a suspect. In fact, when law enforcement officers are at their respective police academies and training centers, they are taught that the area in between two cars that are pulled over on the side of a highway is known as the kill zone.
In this instance, the young girl was standing behind her father’s car when two vehicles approached in the rightmost lane of travel next to the breakdown lane. A 2001 Chevrolet Tahoe was the second vehicle in the line of two when the front car slowed down abruptly. The Tahoe driver swerved out of the way to avoid crashing into the front vehicle and pulled into the space between the Toyota and Jeep at the end of this evasive maneuver. Unfortunately, because of the Jeep, the Tahoe driver said he did not see the Toyota and hit the child.
First responders were immediately called the scene of this horrific accident, but there was nothing they could do except try to stabilize her before rushing her to a level-one trauma center. There was also nothing doctors could do, as her injuries proved too severe, and she was soon pronounced dead.
The Massachusetts State Police (MSP) have said they will continue to investigate this fatal accident and will use their specialized accident reconstruction team. Even if this accident occurred outside of exclusive MSP jurisdiction, they would have that special unit assist with the investigation, because they will do this whenever there is a fatal traffic accident. It should be noted that there have not been any charges filed against anyone in this fatal Boston area car accident, and there have been no formal accusations of negligence as of this time.
An accident such as this one brings up several legal matters with which you could speak with an experienced Boston car accident lawyer. One issue deals with what is known as comparative negligence. In some accidents, the plaintiff will argue that the defendant was at fault in the accident, but the defendant may affirmatively defend the action by claiming the plaintiff was also at fault. An affirmative defense is a defense in which the defendant argues that even if everything the plaintiff says is correct, defendant is still not liable because of the plaintiff’s own negligence.
In a similar case in which a child was injured or killed when on the side of a major highway, the defendant might try to argue that the plaintiff would not have been killed had he not been on the side of the highway, and that was due to the parent’s negligence. At common law, if this were true, all it would take for the defendant to prevail would be to show that the plaintiff was in any way negligent. It would not matter how negligent the plaintiff was, because only one percent negligence would be enough to get the case dismissed. This was known as a pure contributory negligence system and only exists in a handful of states, with most of them being in the mid-Atlantic region of the United States.
In our system of Contributory negligence, which has been codified in Section 85 of Chapter 231 of the Massachusetts General Laws (MGL), as long as the plaintiff is not more negligent than the defendant, the plaintiff can still recover. However, the jury will determine the amount of negligence attributed to the plaintiff, and the plaintiff’s recovery will be reduced by that amount. For example, if the plaintiff was determined to be 20 percent responsible for the accident, and the jury determined that plaintiff should be awarded $100,000, that award would be reduced by 20 percent, or $20,000, and the plaintiff would receive an $80,000 award.
This is not the only issue that a fact pattern such as this brings up. Another issue deals with there being more than one car. If one car had to swerve out of the way to avoid another driver that jammed on his or her brakes, it is possible that one could argue the front car was also partially responsible for an accident. In cases like this, it is possible the driver of the car that hit a victim would file a claim against the owner of the front car, seeking what is known as indemnification. However, it is likely that this would just be a fight among the insurance companies, so it would not be of much concern to the plaintiff, as it doesn’t necessarily matter which insurance company ultimately pays the damages. That being said, it is likely the rear car would still need to keep an assured cleared distance ahead, so he or she would not be tailgating.
If you are injured in an accident in Massachusetts, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Massachusetts Division of Insurance Regulations
More Blog Entries:
Girl, 10, Struck And Killed While Standing Outside Broken-Down Car, July 23, 2017, CBS Boston