Absolute Duty Not Lost in Translation

Absolute Duty Not Lost in Translation

Absolute Duty Not Lost in Translation: Bridging Cultural Divides to Establish Fulfillment of  Obligations to Use Ordinary Care

Smith, Freed & Eberhard Partner Gordon Klug recently achieved a favorable settlement via mediation by taking advantage of Washington’s Joint and Several Liability Statute as well as Washington’s Following Car Doctrine to shift the focus of the dispute onto the duties of the other defendants and redistributing liability among multiple parties.

The Background Story

Gordon’s client, an Indian national on a trip with her son, stopped her vehicle on a highway on the Washington coast after a period of erratic driving, resulting in a four-car pileup and initiating a lawsuit involving three plaintiffs who claimed negligence on the part of three of the key defendant drivers. When one of the other drivers approached her vehicle after the accident, Gordon’s client switched seats with her son and fled the scene. In deposition, Gordon’s client explained that the distinctions between driving in the United States and India account for her behavior. For example, her fear of cars overtaking others around blind turns in the wrong lane, a common practice in India, led her to take extra care around turns – maneuvering that appeared erratic to the American drivers. She then stopped her vehicle only when a small animal darted across the road because her religious beliefs require her to avoid causing injury to any living being. Further, she swapped seats and fled the scene when another driver, a large American man, approached her car because, according to her account, police officers rarely show up at accident scenes in India, where the possibility of retaliatory violence for driving disputes is common. By facilitating this understanding of cultural distinctions, Gordon was able to mitigate the argument alleging wrongdoing on the part of his client and shifted the focus of the dispute to the legally established absolute duty of the other drivers to follow all vehicles at a safe enough distance behind so as to avoid rear-end collisions.

Strategy

Initially, Gordon moved for summary judgment but the court denied his motion Judgment based on the trial judge’s conclusion that there was a question of fact as to whether Gordon’s client’s erratic driving and stopping on the highway constituted a breach of her obligation to use ordinary care. As such, the case moved to mediation where Gordon successfully argued that Washington’s Following Car Doctrine places the responsibility to avoid the accident on the other defendants by requiring that all drivers keep a safe distance between their vehicles and those in front of them.

The Outcome

Because the value of all three plaintiffs’ claims surpassed the $25,000 policy limit of the driver who initially rear-ended his client, Gordon utilized an aggressive negotiation strategy to settle with all three plaintiffs: two at a nominal sum and the third at only 35% of the value of her claim. Further, in citing Washington’s Joint and Several Liability Statute, which dictates that liability will be deemed joint and several against the remaining defendants against whom judgment is entered, Gordon achieved a favorable result for his client while the remaining defendants paid out their policy limits to cover the rest of the plaintiffs’ damages.