By Adler Giersch PS
In 2007, there were 128,000 reported car collisions in Washington state, with 568 fatalities and 58,065 “minor and serious” injuries.1 These numbers have stayed relatively constant in the last five (5) years.2 The number of unreported collisions resulting in injury is unknown.
If the collision is investigated by a law enforcement agency, the police officer is required to complete and file a Police Traffic Collision Report (PTCR).3 If the collision is not investigated, then the drivers are required by law to complete a Motor Vehicle Collision Report (MVCR).4 The two reports are primarily for data collection by the state. However, the PTCR is a rich source of information as to the identity of the drivers, their insurance companies,5 the collision facts as stated by the investigating officers, the identity of witnesses, as well as much other information regarding vehicle condition, road conditions, weather conditions, etc. Attorneys for the injured parties and for the insurance company always and routinely obtain the PTCR.
The PTCR will also most often have information as to whether one of the drivers was cited for violation of the Rules of the Road6 and will contain the investigating officer’s opinion as to the actions of the drivers that “contributed” to the collision. More often than not, one of the driver’s actions is noted for causing the collision and with some lesser frequency, the selected “at-fault” driver is given a traffic ticket by the officer. Of course, there can also be entries on the PTCR which state both drivers contributed to the cause of the collision.
Many individuals think that the police report, the issuing of traffic citation, or the traffic judge’s decision on fault will lay to rest all issues of liability. They can be in for a rude awakening to realize that none of the these actions are binding on the insurance company or on the at-fault driver in a personal injury case.
It is the common belief of attorneys and lay persons that issuance of a traffic citation is evidence of the liability of the cited driver. It is also commonly believed that payment of the civil fine and/or a finding of “guilt” for the traffic infraction in traffic court is also conclusive of liability. However, traffic citations are not crimes; but are designated as “civil infractions” (but for those designated as crimes; i.e., driving under the influence, reckless driving, etc.). As a result, receipt of a citation for a traffic infraction, the payment of the fine alone, or a finding of “infraction committed” are not evidence in a court of law as to the negligence of the cited party or the cause of the collision. Billington, v. Schall, 42 Wash.2d 878, 259 P.2d 634 (1953). This because traffic tickets are the unsupported opinion of the police officer that an infraction occurred.7
And because the citation by itself is an “out-of-court statement” of opinion by the officer, it is also hearsay8 and generally not admissible in a court regarding a personal injury case. However, when the investigating police officer can testify as to the “factual foundation” for his opinion on liability, then his opinion is admissible as evidence of liability.9 Further, if the officer overhears the cited driver acknowledge liability or make a statement against his own interest, or if the officer actually witnesses the collision, he is allowed to testify to those facts.
Also, short of an admission by the driver of having “committed” the infraction, the mere paying of the infraction fine is not admissible evidence of liability. Further, the fact the cited driver has contested the ticket and has been found by the traffic court to have “committed the infraction” is also not competent evidence of liability. This is because the court process of contesting a traffic infraction is not sufficiently thorough to be considered reliable or conclusive in a civil proceeding for damages. Hadley v. Maxwell, 144 Wash.2d 306, 27 P.3d 600 (2001).
However, if the driver contests the ticket and states under oath his/her version of the facts indicating liability or makes admissions of facts indicating liability, those statements are later admissible evidence to establish liability in the civil proceeding for damages.10
In short, the Evidence Rules, the Washington statutes, and Washington court decisions in greatest part continue to require live and competent testimony to establish liability in proceedings for civil damages arising from auto collisions.
We think it is necessary and critical for any attorney representing a person with traumatic injuries to never assume or take for granted the issue of liability in a case. It is important for the attorney to proactively confirm the facts of liability by :
- Obtaining and closely reviewing the official and completed Police Traffic Collision Report;
- Contacting witnesses to the collision and obtaining written statements under oath about what they saw and heard;
- Obtaining photographs of the collision scene and the vehicles;
- Pressing the at-fault driver’s insurer to stipulate to the liability of their insured; and,
- Hiring a private investigator, when appropriate, to obtain other information as needed.
Not every injured person needs to RETAIN an attorney to represent them. However, all those with traumatic injury should consult with an experienced personal injury attorney to learn about many of the unwritten rules, and better understand their legal rights and insurance benefits.
If your patient has been injured by the actions of another, simply have them call Adler Giersch ps for a free consultation.
1Washington State Collision Data Summary 2007.
2 The reliability of the data as to “minor and serious” injuries is debatable because the sources of this information are often not complete or accurate. Very often injuries across the spectrum of seriousness are not detected or reported until after the collision is officially reported.
3 RCW 46.52.070; copies of a PTCR can be obtained at http://www.wsp.wa.gov/publications/collision.htm and at and http://www.wsp.wa.gov/publications/forms/ptcrordr.pdf.
4 RCW 46.52.030; copies of MVCR can be obtained at http://www.wsp.wa.gov/publications/collision.htm.
5 RCW 46.30.020 and 46.30.030; requires a driver in Washington to be able to provide proof of liability insurance, i.e., an ‘insurance identification card’
6 RCW 46.61 et seq.
7 ER 705 (Evidence Rule), Disclosure of Facts or Data Underlying Expert Opinion.
8 ER 801(c) states, “‘Hearsay’ is a statement, other than one made by the declarant while testifying at trial or in hearing, offered in evidence to prove the truth of the matter asserted.”
9 ER 705.
10 ER 801(d)(1) and (2), Prior Statement by Witness and Statement by Party Opponent and ER 804(b)(1) and (3), Former Testimony and Statement Against Interest.