Tag Archives: comparative fault

Motorists Waiving On May Assume a Portion of Responsibility for Your Safety in Auto, Motorcycle and Trucking Accidents Involving Wave-On’s

Courteous Motorists Accept Responsibility for your Safety When Waiving-OnCall Charlie Ward at 317-639-9501

Midwesterners are generally known for their friendliness and hospitality. Drive the rural roads of Indiana and you’ll witness acts of courtesy as oncoming drivers waive and greet you with a friendly eye. During harvesting season, farmers operating their double-wide combines on county roads will pull off the berm waiving you on out of consideration for motorists. How often have you yourself waived on another driver who was trying to cross multiple lanes of stopped traffic near a congested intersection? At one time or another we’ve all extended this courtesy to the other driver. But did you know you were accepting some portion of responsibility for the other driver’s safety?

Motorists Duties of Care

Indiana law imposes several duties of care on motorists. They include:

  • 1. Maintaining a lookout while traveling;
  • 2. Keeping the vehicle under reasonable control; and
  • 3. Using care to avoid a collision.

 Indiana has no duty to “waive on”

There is no duty under Indiana law for a driver to conduct instructions to proceed, commonly referred to as “waiving on.”  Yet if a driver chooses to motion another driver on, the waiving actor accepts the duty and responsibility to exercise care and skill in the undertaking.   In 1924 the Indiana Court of Appeals found for the plaintiff after she was hit by a train at a railroad crossing where she relied upon a brakeman’s “waive-on” implying that she was safe to cross the tracks and out of harm’s way. Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Cioffi.   In the case of Claxton v. Hutton, the Court of Appeals noted that “[a] duty of care exists when a party assumes such a duty, either gratuitously or voluntarily.”   Under Indiana’s Comparative Fault Law, each party involved in an auto, motorcycle or trucking accident is assigned a percentage of fault by a judge or jury. In that case, if the actor motioning another driver to proceed leaves the scene of an accident, he/she becomes a “non-party” to the lawsuit and can be assigned a portion of fault thereby reducing the defendant’s damages to the plaintiff.

 Our lawyers understand the law

If you or someone you know has been involved in an accident as a pedestrian, bicyclist, or while driving an automobile, motorcycle or truck, an experienced personal injury lawyer will investigate and sort out the facts of the case. The personal injury law firm of Ward & Ward has over eighty years of combined experience in personal injury law. Call Charlie Ward for a FREE consultation or visit our website at www.wardlawfirm.com. We are here to help you 24 hours a day.   Charlie Ward   317-639-9501   www.wardlawfirm.com

Black Box Technology Determines Fault in Auto and Truck Accident Claims

Black box technology serves up evidence

If you are currently driving a car or truck with factory installed airbags, you may already be driving with a Black Box or Event Data Recorder (EDR) under your seat or center console. General Motors has been installing event data recorders in all of their air-bag factory-equipped vehicles since the early 90’s. Their main job is to serve data to other systems, such as air bags, traction control and supplemental seat belt systems.

History of event data recorders

The National Highway Traffic Safety Administration (NHTSA) has been using EDR technology for decades to collect and study system data and vehicle safety. In an interview with Wired, GM’s senior manager of field incidents, stated: ‘In the early nineties we could get diagnostic data, seatbelt use and crash severity.’ Currently, we can get crash severity, buckle status, pre-crash data related to how many events the vehicle may have been in and brake application. The newest vehicles also can determine steering input and whether lane departure warning systems were turned on.

Regulation of event data recorders

NHTSAs ruling—NHTSA-2006-25666; 49 CFR Part 563 entitled: Event Data Recorders—will regulate the type of information recorded and the method in which it is stored. This ruling will affect all vehicles manufactured for North American consumers after September 1st, 2012 and will require all manufacturers make their EDR data available to the public. The rule further requires disclosure to new car buyers if an event data recorder has been installed, beginning with model year 2011 cars. The NHTSA ruling, however, permits states to determine how black box data may be used:

“This rule does not address certain other issues generally within the realm of State law, such as whether the vehicle owner owns the EDR data, how EDR data can be used/discovered in civil litigation, how EDR data may be used in criminal proceedings, whether EDR data may be obtained by the police without a warrant, whether EDR data may be developed into a driver-monitoring tool, and the nature and extent that private parties (including insurance companies, car rental companies, and automobile manufacturers) will have or may contract for access to EDR data. These issues are instead being addressed by State legislatures.”

Privacy concerns and legislation

Privacy groups have serious concerns about the use of black box information, i.e. who will be able to access the information and what purposes will that information serve? The National Motorist Association states: “… as is often the case, the personal, legal, and economic ramifications spawned by technological innovations far exceed superficial public explanations.”

In 2004, California became the first state to enact legislation prohibiting the download of data without the owner’s permission or court order. Several other states since have followed suit by addressing issues of ownership.

Data mining

Event data recorder information has consistently been used and evaluated by reconstruction experts in criminal prosecutions and accident-related litigation when the Court has so ordered. But the most concerning aspect of EDRs is data ownership. In an effort to minimize company losses, insurance companies are eager to mine this information and have been downloading the data to determine the degree of comparative fault in accident cases across the country by taking title to totaled vehicles and thereby establishing ownership via claims of property damage.

Future concerns will address how insurance companies will use this proprietary information. Will they require access to the data as a condition of coverage? Or will they use black box technology in conjunction with GPS systems for purposes of tracking driving habits and assessing risk? As with all developing technologies, the ownership and utilization of information will be determined. Ultimately, the Courts will decide these issues and  constitutionality will be challenged.

Personal injury attorneys experienced in accident reconstruction

Charlie Ward is a personal injury attorney with experience using black box data as evidence in wrongful death and personal injury claims.  Call Charlie at 317-639-9501 today if you have been injured or know someone who has died from fatal injuries in an accident caused by a semi tractor-trailer.

By Charlie Ward

[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225


What is Comparative Fault?

A jury must assign a percentage of fault, if any, to each person involved in the accident

If you are injured by another party, for example, in an auto, trucking, bicycle or motorcycle accident—even as a pedestrian or when acting as a Good Samaritan—under Indiana Code §§ 34-51-2-6; 34-51-2-7; 34-52-2-14, the judge is required to instruct the jury that part of their duty must be to determine which party or parties to the incident bear responsibility for the Plaintiff’s injuries and assign to each, a percentage or degree of their fault. The percentage of liability determines the percentage of the resulting damages each party must pay.

Parties responsible may include the Defendant(s). In some cases, a portion of responsibility can even be assigned to non-parties to the action, i.e. someone unnamed in Plaintiff’s civil suit. Even Plaintiff(s) can bear fault. Under Indiana’s ‘modified’ Comparative Fault law, a claimant’s responsibility cannot exceed 50% of the sum total of all other responsible parties. If the claimant is deemed to be more than 50% responsible for his or her injuries, then that claimant is barred from recovery in a negligence case. The Comparative Fault chapter may vary when applied to medical malpractice, governmental entities or public employees.

Experienced personal injury attorneys help you navigate legislation and the law

It’s challenging for most people to stay knowledgeable of every statute that may affect them at some point in time. That’s why it’s important to seek advice from an attorney who deals with liability issues on a daily basis. Every case is different. Ward & Ward will look at the facts of an issue, dissect them and give you an honest assessment in their free consultation with you. Call Charlie Ward today for a consultation with an experienced personal injury attorney.

By Charlie Ward

[email protected]

Ward & Ward Law Firm
728 S Meridian St
Indianapolis, IN 46225