On September 17, 2013 there was a serious motor vehicle accident on Brittain Road in Akron, Ohio where 49-year-old Dwayne Hammond was killed in the crash. According to reports, Mr. Hammond was an innocent passenger when the at-fault driver drove the car off the road and into a utility pole. As a result of the car accident, Mr. Hammond did not survive.
The family members will unquestionably be entitled to make a wrongful death claim for damages to compensate them for the loss that they have sustained as a result of this accident.
In this case, the at-fault driver is likely liable for negligence. Negligence is legally defined as the failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances (or taking action which such a reasonable person would not). Negligence is accidental as distinguished from “intentional torts” (such as assault or battery) or from crimes, but a crime can also constitute negligence, such as reckless driving. Negligence can result in all types of accidents causing physical and/or property damage. In making a claim for wrongful death damages based upon the negligence of an at-fault driver, the representative for the victim’s estate (the plaintiff) must prove: (a) that the at-fault driver (the defendant) had a duty to the victim, (b) that the defendant’s action (or failure to act) was a breach of the duty, and (c) that the damages were proximately caused by the defendant’s breach of the duty.
Legal Issues Arising From This Accident
Several questions arise from accidents such as this single-car accident involving the death of an innocent passenger.
First, the at-fault driver’s insurance company will want to protect itself from paying out a lot of damages and will often do everything that it can to blame anyone else (or anything else) for the accident other than the at-fault driver. Their claims adjusters, lawyers, and accident reconstructionists are on the job from day 1 – all in an effort to assign blame to anyone other than the at-fault driver. This is why it is critical for the victim’s family to obtain a lawyer to protect their interests immediately.
Second, the issue of the potential for punitive damages arises. Oftentimes in these types of single car accidents, the at-fault driver turns out to have been impaired. When such a driver causes an injury or death, the harmed parties may be entitled to recover punitive damages above and beyond any award of standard compensatory damages. These damages are awarded to punish and deter the driver (and other drivers) from making the same senseless mistake. Therefore, even if the at-fault driver was negligent per se, investigation as to whether the driver was impaired is still important, because these factors may open up the door to the victim’s family being able to recover punitive damages.
Third, no statements should be given to any insurance companies until after the victim’s family has spoken with an attorney. Insurance company representatives will sound sympathetic, polite, helpful, and friendly on the phone, but they are not an advocate for the families of those killed in an accident. In fact, the adjuster’s goal is to use written or recorded statements concerning the accident in an effort to pay the least amount of money possible. Some insurance companies even give adjusters bonuses based on how little money they pay out on claims – especially potential high value wrongful death claims.
Fourth, the victim’s family should not sign any authorization for any insurance company until after speaking with an attorney. Signing authorizations will give the insurance company a “free pass” to obtain any and all information regarding the deceased’s confidential and private past medical records as well as other information that they should not be entitled to. They will then attempt to use this information to minimize the value of any legal claim.
Fifth, in the event of settlement money to be held in trust for a child, the estate representative will have to navigate the probate court process. (Ohio law requires that the probate court approve any settlement entered into on behalf of a minor in the state of Ohio.) Allocating the amount of money to be set aside for the child upon his or her eighteenth birthday versus the amount of money to be given to the adult caregivers is often a point of contention. An attorney can help guide the process through the court to an acceptable resolution.
These are just some of the legal issues that arise when there is an accident of this type. Unfortunately there are many more, and the situation can often seem hopelessly complicated and be a huge burden on a grieving family. This is where a knowledgeable and experienced attorney can make all the difference and lighten the load for a family who has just experienced a catastrophic loss.
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If you have questions about any of the legal issues raised in this blog, contact Dodosh Law Offices, LLC at (440) 298-2344. Or, you can fill out a contact form and Attorney Dodosh will get in touch with you.