In the midst of another “winter storm” striking the heart of Oklahoma this week, I thought it might be a good time to discuss a time honored “defense tactic” that we typically see in automobile and/or trucking accidents. The defense is a legal doctrine called the “unavoidable accident defense.”
An unavoidable accident is one that “is brought about by some ‘agency’ over which the motorist has no control and is rendered ‘inevitable’ thereby, while using the customary modes of controlling his car.” Athey v. Bingham, 823 P.2d 347, 1991 OK 82 (1991); See also Shoopman v. Travelers Ins. Co., 518 P.2d 1108 (Okla.1974). “An unavoidable accident is one which could not have been foreseen or prevented.” Video Independent Theatres, Inc. v. Cooper, 421 P.2d 833, 835 (Okla.1967).
In examining this issue as it related to jury instructions (which is important for us personal injury lawyers and our injured clients), the Oklahoma Supreme Court held in Ankney v. Hall, 764 P.2d 153 (Okla. 1988) that an “unavoidable accident instruction should rarely be given.” Id. at 156. The court further held that this instruction should be restricted to those instances where the evidence indicates the occurrence was caused by unforeseen conditions and not by the negligence of either party. Id. (emphasis added). In the absence of a showing of some factor over which the parties had no control or could not have predicted, the defense should be rejected. If evidence at trial indicates negligence of either driver, an unavoidable accident instruction should not be given, for an unavoidable accident is one which occurs without negligence on the part of either party. Id. at 155.
Given the above, it is our view that any argument of the insurance adjuster or defense attorney that a collision falls under the “unavoidable accident” caveat should be carefully scrutinized. First, as stated above the parties must have “had no control or could not have predicted.” The later aspect is directly applicable to our current weather situation. It is reasonable to expect that every motorist should recognize the inherent dangers found in driving in winter weather. From slick roads to iced bridges, any accident occurring in this weather should not fall under this doctrine.
If you or a loved one has been injured during these icy conditions, be wary of any comments by the insurance company stating that it was “unavoidable.” This is a ploy to get you to take less for your claim. Accordingly, you need a strong advocate on your side fighting these ridiculous defense tactics.
If you or loved one has been injured or a loved one killed in an auto accident, McIntyre Law, P.C. has the experience and knowledge needed to successfully handle your auto accident case. Contact us immediately after an auto accident and we will discuss the situation with you and come up with a plan of action to help you get compensation for your injuries, property damage or a loved one’s wrongful death. Visit www.mcintyrelaw.com or call toll free 1-866-917-5200 to discuss your case and find out the best course of action to ensure that you get the compensation you deserve.