When “Accidents" Aren’t Accidents

Words have power.  This obvious fact is often forgotten, even by judges and lawyers.  And they should know better.  The use of a single word can set the wrong tone, falsely frame the issue, destroy the presumption of innocence, and absolve the guilty.

To demonstrate, here are some words with alternate phrasing:

Gulag…….Vocational rehabilitation camp

Belly fat ……portable modular food storage system

Garbage collector ….sanitation engineer

Torture…..enhanced interrogation, polka music….

In criminal law, there is the perpetrator and the victim.  At some stages of the proceedings, the “victim” word does no harm.

At others, it can steal the right of fair trial.

In CASE 1, I was representing a fellow charged with murder.  During the voir dire process in which prospective members of the jury are screened, the judge mad the usual inquiry: Did any of them know the prosecutors, the defense attorney, or “the victim”.  I asked to approach the bench.  Puzzled, the judge waived the lawyers up to his seat, out of earshot of the jury pool.

The conversation went something like this:

Me:  Judge, please stop referring to the decedent as “the victim”.

Judge:  Well, she’s dead, isn’t she?

Me:   Yes, Your Honor, she is.  But how she died…accident or murder…is one of the questions this jury is going to have to resolve.  If they find she was murdered   then she can be called a victim.  If you call her a victim now, you are telling them you…the judge…the person in this courtroom whose lead they want to follow, has already decided she was murdered.  The presumption of innocence is lost and so is the right to a fair trial.

To his credit, the judge did a “hrumphh” followed by an agreeable “fair point”. He just wasn’t thinking when he use the “V” word.

In civil law, there are personal injuries due to car crashes, dog bites, and slip and falls.

In CASE 2, a man driving a pick-up ran a stop sign, striking my client who was on a motorcycle.  He severed her leg above the knee.  He just wasn’t paying attention.

In CASE 3, my client’s car was hit broadside by a fellow looking at a newspaper on his seat while driving thru an intersection.   My client was lucky, sustaining relatively minor injuries.

In CASE 4, my client was badly injured when the airbag in her car failed to deploy. Her husband drove off the road and hit a tree trying to avoid a car which had their way.  My client’s car had been purchased used.  In the examination of the car, my expert found the sensor controlling the airbag had been removed.  The car dealership who had sold the vehicle in that condition was inspired to rapidly settle.

In CASE 5 my client was bitten in the face by a friend’s dog.  Just two weeks prior, the dog had attacked and chomped the mailman.  The owners knew the dog was aggressive and violent, but continued to allow him to access to guests who came up their front walk.  The following month, the dog bit a utility worker.

In all of these cases, the word “accident” was used by the insurance companies or their lawyers.  The word didn’t apply in any of them.  In many personal injury cases, “accident” deserves no place in the discussion.  It is used only to minimize negligence and fault.

The definition of “accident” can vary slightly, but many sources and the common use of the term infer no one is to blame.  For example, read the definition at this site and count the number of times “chance” is used.  http://legal-dictionary.thefreedictionary.com/accident

If a tire blows out and you crash, it could be called an accident.  If you crash because you took your eyes off the road to text, it is not an accident.  It was crash caused by negligence.

Allowing such a crash to be called an accident goes a long way to absolving the negligent person of fault.  This one word…accident…sends the message there is no fault.  It invokes the famous bumper sticker, “S—t happens”.   OK…but if someone made it happen, it wasn’t an accident.
Lawyers and judges keep letting the “A” word trespass into the conversation.  Just look at how many lawyers advertise as “Accident Attorneys”. The police are just as guilty.  The document they prepare after a crash is entitled, “ACCIDENT REPORT”.   If these events were really only accidents, there would be nothing for lawyers to do.  It would be “S—t happens” and that would be the end of it.  When someone has done something wrong, or failed to do what is right, fault needs to be determined and the injured party made as whole as possible.

If you are hurt in a car or motorcycle collision, fall on property not properly maintained, a pedestrian hit by a car, bit by a dog known for being vicious, don’t let the person responsible (and their insurance company) shrug it off as an accident.  If the harm could have been prevented by reasonable precaution or attention, and those measures weren’t taken, it was negligence and not chance which caused the harm.  You are entitled to be compensated for injuries and pain caused by another’s negligence.

If anything nasty along these lines happens to you, I’ll be happy to tell the wrongdoer’s insurance company it was not an accident and fight for as much compensation as you deserve.