Just because you have been hurt in an accident, don't expect the other driver or his insurance company to whip out their checkbooks and compensate you for injuries. In some cases, such as a rear-end collision caused by an inattentive or intoxicated driver, the question of who is at fault is readily resolved. But, in many cases, the other side may deny liability altogether on one or more of the following grounds:
Unfortunately for accident victims, Maryland and the District of Columbia are two of only four jurisdictions in the nation that totally preclude the recovery of damages by those who contributed to the accident. Even if the other driver was 99% at fault, this harsh rule could totally eliminate that person's liability to someone who played even a tiny role in the cause of the incident. The wrong trial strategy could unwittingly assist the defense in establishing contributory negligence, so it is vitally important to seek the counsel of experienced trial counsel.
Assumption of Risk
If you know your friend has had too much to drink, or presents other risks on the road, you may encounter this defense when you try to recover for your subsequent injuries. Accident victims cannot recover if they assumed the risk of their injuries. So if you knew or should have known about a specific risk, but decided to take a chance anyway, you are risking later tort recovery as well.
Last Clear Chance
Normally, an injured person that is partly to blame for her accident is barred from recovery. But such contributory negligence hardly entitles another driver to slam into her anyway. Even if the plaintiff's negligence put her in harms way, she may still recover from a driver that had the "last clear chance" to avoid the accident anyway.
When the driver of a car is faced with a sudden and real emergency, which was not created by the driver's own conduct, the driver must exercise reasonable care for his or her own safety and for the safety of others. The reasonableness of the driver's actions must be measured by the standard of the acts of other drivers of ordinary skill and judgment faced with the same situation. The driver need not use the same coolness or accuracy of judgment which is required of a person who has an ample opportunity fully to exercise judgment.
A person is negligent who knows or should know of any unsafe condition in a vehicle and who drives or permits another person to drive the vehicle. Car owners must see that they are a reasonably safe condition before putting them on the road. If they fail to properly maintain and inspect the vehicle, they may be held liable for a defective condition that causes an accident -- even if they were unaware of the condition before the accident itself. So if the brakes failed and caused a collision, this failure is evidence of negligence. But if the owner can produce service records to show that the failure was sudden and unexpected, this may provide a sufficient defense.
A person must take reasonable actions to be sure that he or she can safely operate a car. But a driver may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate.
An unavoidable accident is an inevitable occurrence that is not to be foreseen or prevented by vigilance, care, and attention and not occasioned by or contributed to in any manner by an act or omission of the party claiming the accident was unavoidable. Once thought to be a defense to a negligence action, it is really just another way of saying, "I wasn't negligent" in the first place.