Houston Winter Weather Week 2018 was all hot cocoa under a warm blanket while binging on that Netflix series about a psychopath teenager and his intended-target girlfriend. It was all making tiny snowmen with the kids in the backyard, when you were able to pull them away from that Netflix series about a psychopath teenager and his intended-target girlfriend. In other words, it was all fun and games until you were shivering on the freeway shoulder, waiting for the tow truck to haul off the mangled remains of your car.
By many accounts there were hundreds of car crashes last week on Houston roadways because ice is as foreign a substance to Houstonians as transformium (you know, the stuff that made wrecked heaps of cars transform into badass robo-fighting machines and something you could really use now to avoid a huge body shop bill). Since you were out attempting to navigate the roadway while it was covered in ice, you probably have no right to assert a claim against the driver whose car skated into you with Tonya Harding-like force, right?
Wrong! According to some friendly plaintiff’s counsel we chatted with, assuming the risk of attempting to drive under these admittedly hazardous conditions does not bar you from recovery for property or (God forbid) bodily injury damages caused by another unfortunate soul whose vehicle slid right into yours. In a multi-vehicle auto accident, someone is in the right and someone else is getting a claim or a lawsuit filed against them. Ice as an “act of God” or assuming the risk arguments don’t work. Just as if it’s raining, the road conditions may be a peripheral factor to the claim but someone who didn’t navigate the risky scenario properly is going to have to pay.
Just to be certain, I went to my go-to guy in such instances, Jim Tucker. Jim’s a legal assistant and personal injury negotiator with 30 years experience on both sides of the docket. These days, he’s stationed at Lewis Law Group on Detering, where he assists Ms. U.A. Lewis, Esq. in plaintiff personal injury and civil rights cases. In a former lifetime, he and I worked together and bonded over our combined efforts to make the insurance companies pay dearly. We also share a love of music. (I’ve previously drawn up articles on Jim attending a Houston concert where the rising star, Johnny Ace, shot himself to death during the show and chronicled Jim’s own foray into music promotion, the 1970’s Woodstock-comes-to-Houston festival, A Day of Joy). Jim was quick to alert folks that they definitely have recourse in these icy road accidents, though they can assuredly expect insurance companies to fight their claims.
“(The) best case is if you are stopped and the other car loses control and slides into you. Failure to control speed, failure to timely apply brakes or apply them too hard causing the slide, failure to lookout,” Tucker said all are factors the insurance company will have to consider when making a liability determination.
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Noticeably absent: ice on the roadway.
Jim said if more than two vehicles were involved or if your vehicle also was slip slidin’ away at the time of the collision, your case becomes more difficult to win. He detailed some of the additional defense arguments, which are, he said: “unavoidable accident, you put yourself in harm's way by speed and/or failure to control, causing you to be in a position to be hit; such as, sliding yourself and blocking the roadway, thus causing the accident; assumption of risk by getting out on the road during dangerous icy conditions; and comparative negligence.”
Tucker said all those defenses probably will not hold up in the hands of a good attorney.
“If you take ice out of the equation,” he said, “then it is just like a regular case where the other driver is guilty as set out before.”
So, if you were at home last week, banged up and inconsolable after your icy roadway accident, fear not, potential claimants. You may have a payable claim and still plenty of time (two years’ worth, per the Texas statute of limitations) to make Flo, the gecko or your good neighbors at State Farm give up the dough.