Rear end collisions have been around since cars were invented. (Funny, but I have never seen a pelican in formation fly into another one: Why not?)  I was asked recently by a client whether she had any legal rights when she rear ended the car in front of her. This raises the legal issue of what happens when a driver may only  be partly at fault (negligent).

I learned  the lead car was going 50 mph in broad daylight, and accelerating on a three lane entrance ramp to the interstate, when it suddenly and abruptly stopped for no apparent reason.  There was no stop sign, traffic signal, road construction,  sinkhole, no other cars ahead of them merging into their lane, no road debris, no pedestrians or animals on the ramp, and the lead car  just suddenly stopped!!!  My client was not expecting that. She tried to stop but could not.  She crashed into the back of the lead car.

  • Florida has the “Gotcha” rule which applies to rear end collisions like this one.  The rule comes up rarely. It means that the rebuttable presumption of negligence which usually applies when the rear car hits a lead car, disappears when the lead driver makes a sudden, abrupt stop at a time and place where such a stop would be totally unexpected.  The presumption is said to have been “rebutted.” (The law of “presumptions” is  discussed in this blog. )
  • In such cases, the rear driver, acting as a reasonably prudent person driving a car or truck, has a good reason to not expect the lead car to make a sudden stop.  So, if the rear car driver gets sued, the jury can consider all of the circumstance, and conclude she was only partly at fault or maybe entirely at fault, but it is not a foregone conclusion that the rear driver was the only one at fault.  This makes insurance companies for the rear drivers happy.
  • The lead driver is not entitled to a court ordered directed verdict, and the judge does not tell a  jury  they MUST find the rear driver to be negligent (at fault.)
  • The rear driver, if the Jury so finds, may be entitled to recover her damages if the Jury believes she was hurt due to the negligence of the lead driver. IN most cases the lead driver will sue the rear end driver.  The rear end driver will report the case to their insurance company which will appoint a Defense attorney to handle the defense. However, the rear driver must file a mandatory counter-claim or it will be barred.  The insurance company defense attorney should advise the rear ending driver to consider whether to make such a claim so their rights to make a claim will not be waived.  Another attorney, who can handle the personal injury claim as a counter-plaintiff should be consulted by the rear end driver.
  • Gotcha stops are rare.  They may be a result of road rage situations or other strange driving behavior.  It’s almost like the lead driver invites the rear end crash. Sudden stops in “stop and go” traffic are not “Gotcha” stops because they are expected, since everyone else is doing it too.  Typically they come up when the lead car at a light starts up when the light turns green, then goes a few feet and stops suddenly even though there is no reason to.  This  often results in a chain of rear end collisions.

One would think that the combination of a sudden stop, and the ensuing chain of rear end collisions would result in a finding that the first lead driver was presumed to be negligent , but the courts have  so far refused to hold that way.

Florida also has a “comparative” negligence law, which combined with the “Gotcha” rule allows a jury to apportion fault in all negligence cases, including rear end cases like this one.  Bottom line: just because she was the rear end driver and crashed into the lead driver, doesn’t mean she is 100% at fault with no right of recovery for her own damages.  A jury could reasonably conclude the lead driver was also to some degree negligent for the sudden, unexpected abrupt stop at a time and place where no one would reasonably stop.

In my experience the rear driver always says the lead driver was making a “sudden” stop or a “sudden” left turn.  Why? Because the rear drivers  have been day dreaming, distracted, either on a cell-phone or worse, texting.  When they look back to the road they are always startled.  To them it is sudden,  Duh! If they were watching carefully they would have had time to react.

And what if the rear driver, was herself rear ended? In the leading case in Florida on rear end collisions and the “Gotcha Rule” the supreme court clearly recognized that motorists should be on the look out for accidents ahead.  Just because a driver ahead has negligently failed to stop and was in an accident, does not mean their following driver has a built in excuse because of their sudden stop.

  In other words, the negligent driver who is himself rear-ended may have a valid case when he gets rear ended. It almost sounds like he is getting rewarded for bad behavior.  But that is for the jury to decide.

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