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Duties of the Motorist
The operator of a motor vehicle is required to
exercise
reasonable care for the safety of others. Since it would be
impossible in all circumstances to state what the motorist must do to
exercise reasonable care, the concept of the reasonably
prudent person standard was adopted. The motorist must
exercise that degree of care while operating his vehicle which the
reasonably prudent person would exercise under the same or similar
circumstances. The reasonably prudent person would exercise under the
same or similar circumstances. The reasonably prudent person will:
- Maintain his vehicle in a safe condition,
- Will obey the rules of the road,
- Will conform to the various highway regulation,
- Will observe and obey traffic control signs and
signals,
- Will keep his car under control,
- And will do everything possible to avoid an
accident.
A motorist does not have the exclusive right to use
the road. The motorist must reasonably anticipate dangers. The rule of
common law is that a person must use his own property so as not to
cause damage or injury to others. The duty of care will vary with each
circumstance and the degree of danger involved.
The basic premise which must be kept in mind is that
there is no liability merely because someone is hurt or property
damaged. The motorist would not be liable if he was exercise of due
care. A violation of the rules of the road which results in injury or
damage to others is negligence. The violator in his case will be
subject to liability. However, the motorist who is in compliance with
the rules of the road will not necessarily be free from exercise care
for the safety of others. Even though the motorist has not violated
any of the rules of the road, he can be deemed to be negligent if he
fails to meet his duty of care.
For example, if the road is covered with ice and a
safe speed under these particular weather conditions would not be in
excess of 20-25 miles per hour. The motorist who drives at 45 miles
per hour, well within the speed limit, and has an accident, would be
operating his vehicle in a negligent manner. The motorist will be
subject to liability if his negligence is the proximate cause of the
accident.
The motorist is also charged with knowledge of the
rules of the road and knowledge of the speed limit applicable to the
road he is traveling. If the motorist is not familiar with either one
of the above, this not excuse his violation. For example: Assume the
speed limit is 35 miles per hour on a particular street. The motorist
does not know the speed limit and did not observe the posted speed
limit. If the motorist exceeds the speed limit, knowingly or
unknowingly, he is charged with operating his vehicle in a negligent
manner and he is subject to liability if his negligence is the
proximate cause of the accident.
The rights granted by the rules of the road are not
absolute. The rights granted are subject to the motorist's overall
duty to exercise care for a red light and the light turns green, the
motorist does not have to proceed. If traffic or pedestrians are in
the intersection, he must wait before proceeding.
In the final analysis, whether or not there was a
violation of a rule of the road (even though enacted into a statute),
the reasonably prudent person standard must be applied to determine
the presence of negligence.
Automobile
The automobile does have a potential for danger. The
auto however, is not a dangerous instrumentality. This is one of the
circumstances which the reasonable prudent person must recognize in
determining what care is to be taken to avoid foreseeable harm.
The operator of a motor vehicle must be a fit
driver, operate a safe vehicle, keep his vehicle under
control and look out for others.
Fit Driver
-
If a motorist is not physically or mentally fit to drive an
automobile, it is negligent for him to drive an automobile. If a
person has a condition or disease which may cause him to become
unconscious he is liable for any harm which he causes.
If a motorist is blinded by the sun and continues to
drive his automobile at the same speed and strikes a child, he will be
negligent as a matter of law.
If a motorist falls asleep and is unable to show any
justification for falling asleep at the wheel, he would be negligent
as a matter of law. This should not be confused with fainting, shocks
or heart attacks which occur at the wheel. The motorist would not be
negligent if he has no reason to know that he might be subject to such
incapacity.
For example, a motorist suffers a heart attack at
the wheel. The car goes out of control and injures two pedestrians on
the sidewalk. The motorist had no previous knowledge of his heart
condition nor had this manifested itself in any way. The risk of harm
to the pedestrians could not have been foreseen and the motorist would
have no liability to them.
Intoxication does not necessarily charge a driver
with liability for an accident. If a motorist is driving his car
properly, observing the law of the road, and a collision occurs
without any fault or negligence on his part, there can be no recovery
against him even though he may be intoxicated.
Obviously, his intoxication furnishes no excuse for
his negligent operation of an automobile. An intoxicated person is
held to the same degree of care as a sober person in the same
circumstances and is liable for injuries resulting from a collision
proximately caused by his negligence.
Safe Vehicle -The
motorist must maintain his vehicle in a reasonable safe condition. He
is negligent if he travels on a public highway in a vehicle which he
knows or has reason to know is unsafe. For example, a person is
negligent if he drives on a public highway with brakes which are
defective. A reasonable prudent person would recognize that he may be
required to stop while driving at a substantial speed. If he could not
stop his car within the shorter range of a properly-equipped car, he
would be exposing other people traveling on the highway to a greater
risk.
The concept of maintaining a safe vehicle is not
limited to traveling on the highway. For example, an automobile
operator parked his vehicle in the parking lot of a trailer park which
was regularly used by pedestrians. A radio antenna of dull texture was
bent and extended sideways beyond the fender of the vehicle at
approximately eye level. A 15 year old girl playing in the lot ran
into the antenna. The court held that the operator should have
reasonably foreseen the presence and possible danger of the antenna
that could cause injury to others.
Vehicle Under Control
- The motorist must maintain his vehicle under control at all times.
He must be able to avoid collision with pedestrians and other vehicles
properly using the highways. This rule requires that the driver keep
his car under such control that he can stop within the distance which
he can clearly see such distance varying under different conditions.
At night the distance would be measured by the range of the driver's
headlights. During the day his range of vision would be much greater
depending upon the weather conditions. The amount of control which
must be exercised will vary depending upon the range of the driver's
vision. The extent of the driver's vision will govern the permissible
speed and control of the vehicle which must be exercised to slow down
or stop.
When applying this rule there are two elements which
must be taken into consideration -- visibility and opportunity.
Visibility -The
dangerous condition or object must be large enough or of such a nature
to be visible to someone with average eyesight or there must be
adequate warning of its existence. For example, if there is
construction in progress in a particular area, and everything is
clearly marked (signs, blinkers, flares etc.) the motorist is guilty
of negligence if he is unable to avoid striking the objects by
reducing his speed or stopping his vehicle. The motorist should have
seen the object, and did have adequate warning of their distance.
If the motorists vision is impaired or obstructed,
he is required to slow down or stop depending upon the condition. For
example, if a driver is temporarily blinded by street lights, the
headlights of an approaching automobile, or by smoke or dust, he must
stop his vehicle and not proceed until .his vision is clear. If he
should proceed before his vision is clear, he guilty of negligence.
Even though it may be negligent for a driver of an automobile to
permit the bright lights on his car to obstruct the vision of a driver
of another car, the driver of the other vehicle is not relieved of the
duty to exercise due care required by the circumstances.
Opportunity
-The
driver must have had the opportunity to slow down or stop. The driver
is not charged with knowledge of ordinary eye sight where he has
received no warning of their existence. For example, if a hole in the
road is not visible at a greater distance than 5 feet, the motorist
will not be deemed to be negligent if he cannot prevent an accident.
He is not negligent if he cannot prevent an accident. He is not
negligent if he did not have a reasonable opportunity to avoid it.
However, the motorist is guilty of negligence if he had an opportunity
to slow down or stop and fails to take advantage of that opportunity .
The fact that a driver runs into a car ahead does
not establish that the driver was negligent. (It may be very difficult
to convince a jury otherwise.) For example, if a dog jumps out
in front of Car A, the driver stopped suddenly to avoid hitting the
dog. Car A was then struck in the rear by Car B. Car B in this
situation was not negligent since there was no reason to foresee that
Car A would stop suddenly to avoid hitting the dog.
Lookout for Others
-The motorist does have the right to assume that others on the highway
will exercise car for his safety as well as their own. He can assume
that others will obey the rules of the road, the highway regulations
and traffic controls. Once it becomes clear however, that the other
person will not act with reasonable care he can no longer rely on his
assumption. For example, if a motorist sees a vehicle approaching him
on the wrong side of the road, he can assume that the driver will
return to the other side of the road. It will be a question of fact
for the jury to decide how long the motorist can rely upon this
assumption.
The reasonable person will maintain a lookout (1)
determine the presence of those who might be on the road and (2) to
determine the presence of those whom he realizes will be on the
road.
The presence of persons and vehicles should be
anticipated at:
- Bus and trolley stops;
- School zones;
- Theaters, etc.
Obedience to Traffic Signs
The rules of the road, in most jurisdictions,
require that the motorist observe and obey all traffic signs. The
traffic signs must be (1) lawful and (2) displayed.
For a sign to be lawful it must be erected pursuant
to a statute, ordinance or regulation and duly passed by the state. If
the erection of a traffic sign is not lawful, the motorist is not
bound to obey it.
In addition to the sign being lawful it must be
displayed in order to require compliance. The motorist must be able to
see the sign. It must be (1) readable and (2) visible.
If the sign is rusted from exposure to the weather
and cannot be read or if the sign is not visible because of bushes or
trees the motorist is not charged with knowledge of its existence so
as to require compliance. If a sign has been knocked down, fallen down
or been stolen, it is not displayed. The failure of a motorist to see
and comply with a traffic control sign which is lawful and displayed
is negligence.
Entering Highway From Private Driver
A motorist entering the highway from a private
driveway, alley, or garage is required to exercise that degree of care
and caution that the hazards of the situation demand. If the entrance
to the driveway is obscured from the vision of motorists already on
the highway because of the presence of foliage or other obstructions
to vision, the care to be exercised is that much greater. The motorist
already on the highway is not bound to anticipate that vehicles will
enter the highway between intersections. He or she is required to
exercise the usual care in having the vehicle under control as to
speed and stopping ability. The driver is not held to the same degree
of care as would be the case when approaching an intersection. The
entering motorist's conduct will be judged by the facts and
circumstances of the occurrence, the weather conditions, the density
of traffic, and the kind and type of driveway involved.
Pedestrian
The term "pedestrian" is generally
understood to be a person who travels on foot. However, if a person is
on roller skates or ice skates, it should be kept in mind that his
status is that of a pedestrian. It does not change.
The general rule is that all users of the highway
have equal rights. This applies whether a motorist or pedestrian is
the user. This applies whether a motorist or pedestrian is the user.
The rule applies only in the absence of statutes modifying their
rights and duties. The motorist and the pedestrian must exercise care
and due regard for the corresponding rights of the other. The
pedestrian has certain rights and duties when he is:
- on the sidewalk;
- crossing the street at a controlled intersection;
- crossing at an uncontrolled intersection;
- crossing between intersections; and
- walking on the highway.
Sidewalk -The
pedestrian has the clear statutory right of way. The motorist must
yield to this right. If a pedestrian is struck while on the sidewalk
there is a presumption of negligence on the operator of the vehicle.
It also makes no difference if the wheels of the vehicle are on the
road. The motorist is under a duty to drive his vehicle in such a
manner that his vehicle or any part of it does not project over the
sidewalk.
Controlled Intersection
-The pedestrian has a clear right-of-way when crossing on a crosswalk
with a green light in his favor. The turning motorist must yield the
right-of-way. Should the light change, the motorist must permit the
pedestrian to cross before proceeding.
Uncontrolled Intersection
-The pedestrian must exercise greater care for his safety in this
situation than at a controlled intersection. The pedestrian is on
notice of the possible danger and he is required to look before
crossing. The pedestrian is not bound to anticipate that a motorist
will approach the intersection at a high rate of speed.
The motorist, as such, owes no special duty of care,
except to exercise reasonable care. The motorist can assume that the
pedestrian will not dart out into his path. The duty of the motorist
is governed by whether he saw or should have seen the pedestrian in
the road. The motorist can assume that the pedestrian will exercise
care for his safety .
Between Intersections
-The pedestrian is not negligent merely because he crosses the street
between intersections. (Exceptions: statute or ordinance prohibiting
jaywalking) The pedestrian is required to exercise a greater degree of
care and caution. If there is a statute or ordinance which forbids
crossing between intersections, the pedestrian is contributorily
negligent as a matter of law.
Walking on the Highway
-The pedestrian on the open highway is required to walk on the left
side of the road and face oncoming traffic. If his failure to do so is
the proximate cause of contributing cause of the accident, he will be
contributorily negligent.
Children -A child
has the same right as any adult or owner of an automobile on the
highway. A child is also under a duty to exercise reasonable care for
his own safety. However, the child's duty to exercise care is subject
to the same variations. The child's age, experience, and ability to
apprehend danger will measure the extent of care he is obligated to
exercise.
A child under the age of seven (7) is presumed to be
incapable of negligence. There are two (2) prevailing views in this
regard:
- A conclusive presumption that he is incapable of
negligence.
- A rebuttable presumption that he is incapable of
negligence.
In the second case, evidence can be introduced. It
then becomes a jury question as to the child's capability to commit
negligence. If a child is seven (7) or older neither presumption is
applied.
It is not negligence in itself for a child to play
in the street. A child playing in the street is usually charged with
knowledge of the danger in using the street as a playground. The
child's failure to exercise care for his own safety may constitute
contributory negligence.
The care to be exercised by a motorist will vary
depending upon the circumstances. If a motorist is passing a school or
a playground, he must anticipate the presence of children playing in
the street or on the highway. The motorist must exercise more
vigilance in this situation than if he were passing through a
commercial area. The motorist must realize that the child will not
manifest the judgment of an adult. The motorist cannot assume that the
child in the street will get out of the way. Sounding his horn will
not exonerate him from liability if it can be established that the
child could not understand or appreciate the warning. The mere fact
that a motorist strikes a child does not in and of itself establish
negligence on the part of the motorist. The general rule is the
younger the child the greater the duty on the part of the motorist.
Passengers -A
passenger is required to exercise reasonable care for his safety .A
passenger may not:
- interfere with the operation of the vehicle;
- distract the driver's attention;
- attempt to get out of the car while it is in
motion;
- do any other act which will involve a risk of
injury.
The passenger is not required to watch the road and
warn the driver of impending dangers.
No Contact Cases
It is fundamental that, where negligence of the
motorist is the proximate cause of an accident, the motorist is
answerable. This is true whether there is any contact between the
offending vehicle and the injured pedestrian or not. For example, if a
motorist drives the car on the sidewalk, and, to avoid being struck, a
pedestrian jumps out of the way and is injured in so doing, the
proximate cause of the injury is the negligence of the motorist in
driving on the sidewalk. While there was no actual contact between the
offending vehicle and the pedestrian, nevertheless the motorist is
answerable in damages.
In another case, assume that the offending motorist
ran through a red traffic light into the path of another vehicle
proceeding on the green. The vehicle stops short and there is no
contact with the offending vehicle. Because of the sudden stop,
vehicles behind are unable to stop and crash into the stopped vehicle.
The proximate cause of the accident is the negligence of the motorist
who ran through the red light, and he or she is liable for all the
damage caused thereby, whether to the vehicle into whose path the
motorist drove or to the other vehicles which were following. The
motorist who stopped suddenly in order to avoid an accident is not to
blame for the accident which followed; the responsibility is entirely
that of the motorist who ran the red light.
The difficulties attending these no-contact cases do
not lie in the direction of the law governing the situation, but in
the matter of proof. What usually happens is that the motorist who
caused the accident escapes and unidentified. When it is alleged that
the motorist who stopped suddenly was negligent, he or she can be
absolved of negligence only by showing the necessity for the action.
If there was no other vehicle involved, then a sudden stop without
warning could be considered a negligent act. Therefore the plaintiff
is interested in establishing that there was no other car involved
since, in that way, the plaintiff can recover from the defendant.
Otherwise, if the defendant was not negligent, and the accident was
caused by the other car, which is unidentified, the plaintiff will
have to find and identify the other driver before a recovery can be
had. Where a defense such as this is interposed, plaintiffs like to
refer to the unidentified vehicle as the "phantom car,"
which tends to raise some question as to its existence.
Emergency Vehicles
Emergency vehicles, for the most part, are police,
ambulances and fire apparatus. In many states, statutes regulate the
question of liability of the emergency vehicle. Their provisions are
variously interpreted in the different states.
Police Cars -Police
cars can exceed their speed limit and disregard traffic controls. This
privilege is for the limited purpose of police duty. Example: pursuing
a criminal. The driver of the police car must exercise whatever due
care the hazards of the situation requires.
Ambulance -
Ambulances are subject to the same traffic rules as any other vehicle.
They must obey the speed laws, traffic signals, and traffic control
signs. In any emergency situation, the ambulance driver can rely on
the assumption that all vehicles in the vicinity will yield the
right-of-way. The required warning must have been given.
Where statutes confer rights and privileges to
ambulances, the ambulance driver must comply with the statute as to
the use of a siren, flashing lights, etc. The driver must also be
responding to an emergency. It should be established that an emergency
existed and its character was such as to justify the speed at which
the ambulance was being driven.
Where the statute requires that the motorist torn
out of the way of an ambulance, the motorist who fails to do so, after
receiving warning of the approach of the ambulance, is chargeable with
contributory negligence if an accident should ensue.
Fire Apparatus -The
same rules as apply to the ambulances govern the operation of fire
apparatus. The driver must sound the proper warning and allow the
vehicles on the highway to move out of the way.
State Motor Vehicle Codes
The highway and traffic regulations of a state
constitute the rules of the road for that particular state. It is
impossible for an adjuster to handle automobile claims without having
access to the motor vehicle codes for the state in which the accident
happened. In all of the respective states, there is a State Motor
Vehicle Code book. The code book will list the particular statutes
governing the rules of the road.
These codes determine how travelers may use the
highway, which vehicle has the right-of-way, and the conditions under
which the right-of-way is acquired, as well as the rights and duties
of the vehicles which do not have the superior right-of- way. They
also fix the maximum sped and the conditions under which motor
vehicles may be driven on the public roads. The rights granted by the
rules of the road are not absolute in that they may be exercised under
all circumstances; they are subject to the qualification that the
motorist exercise care for the safety of others. For example, if a
motorist is stopped at a controlled intersection, and the light
changes to green in his favor, he must allow the traffic and the
pedestrians already in the intersection to clear before he proceeds.
Since they are designed to promote safety and to restrict extreme
action by any individual, there is a general uniformity among the laws
of the various states.
Violating Rules of the Road
When a motorist is confronted with an emergency, he
is required to take such action as a reasonably prudent person would
take. This action may involve a violation of the rules of the road.
A violation of the rules of the road will not
constitute negligence if the following evidence is available:
- The violation of the rules was justifiable under
the circumstances.
- The motorist's own failure to exercise due care
did not create the emergency.
- The motorist exercised reasonable care in facing
the emergency.
Family Purpose Doctrine
This doctrine creates a fictional relationship of
principal and agent with regard to the use of a family automobile,
whereby the member of the family driving the car is considered to be
the agent of the owner, whether there is any agency in fact or not. If
an automobile devoted to family purposes is purchased, then any member
of the family driving the automobile with the owner's consent is
acting as the agent of the owner.
This doctrine is applied even where the member of
the family driving the car solely for his or her own purposes. The
doctrine is a rule of expediency since it is applied solely for the
purpose of permitting an action against a financially responsible
person (the owner) rather than limiting the plaintiff to a recourse
against another member of the family who may not be able to respond in
damages.
Only about half of the states which have considered
the doctrine have adopted it, either by specific statute or by
judicial determination. The others have specifically rejected the
doctrine and refuse to apply it. The purpose of the family purpose
doctrine is achieved through compulsory insurance laws. In some states
having compulsory insurance laws, it is questionable whether the
family purpose doctrine any longer serves a useful purpose.
Financial Responsibility Acts
As one of the conditions of the granting of the
privilege to operate a motor vehicle, most states have imposed the
condition of a financial responsibility law. These acts generally
provide that where the motorist has been involved in an accident for
which he is responsible, and for which he is unable to respond in
damages, his license to operate a motor vehicle is revokes unless he
can furnish proof of future financial responsibility .This proof can
take the form of an insurance policy containing the liability limits
required by law, or he can qualify as a self-insurer by a deposit of
security with the state. When an insurance policy is certified as
proof of financial security, the insurance carrier must agree to abide
by the conditions of the act as to cancellation and disclaimer. Some
acts provide that, if the motorist presents to the state proof that
the claim against him has been settled by him, the provisions of the
act are not applicable, arid he is not required to file proof of
future financial responsibility.
As a means of enforcement, some states require that
all drivers submit proof of insurance either concurrently with or
within a short time after filing the state motor vehicle report of
accident. Forms for this purpose are supplied (usually called SR
21's), and the insurance carrier certifies by submission of this form
to the state that insurance is carried. This system is the means by
which the state can ascertain who is subject to financial
responsibility and who is not. If the insurance form is not submitted
within the time required by the act, the state assumes that no
insurance is carried and that the operator is therefore subject to
financial responsibility .The fact that insurance is carried is an
indication that the operator can respond in damages if they are
awarded, and thus he or she is not subject to the act.
Compulsory Automobile Insurance
Some states felt that the problem of the financially
irresponsible motorist could be solved by compelling all motorists to
II carry automobile liability insurance with certain minimum limits.
Therefore, compulsory insurance laws were passed requiring, as a
condition precedent to the renewal of a license, that the motorist
present proof of insurance in the form of a policy or certificate from
an insurance carrier. Clearly, this type of legislation would require
insurance on all cars licensed within the state, but it falls short of
the objective of having insurance available in every case involving an
automobile accident. No insurance would be available in the case of a
stolen car, an out-of-state vehicle, or an unregistered vehicle.
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