A Guide to Recovery What to Do If You're Hit by a Drunk Driver

Proving Negligence After Hit by a Drunk Driver

The sudden and harrowing experience of being hit by a drunk driver can leave victims in a state of shock. Grappling with both physical injuries and emotional trauma. In these moments, knowing the right steps to take is crucial for safeguarding your well-being and ensuring a path to compensation. In every automobile collision case, you must prove the other driver was negligent.  You may see this in a host of ways, such as:

  • The driver exceeded the posted speed limit;
  • The driver drove his vehicle at a high rate of speed, unsafe for the conditions;
  • The driver failed to yield the right of way;
  • The driver failed to stop at the traffic light or sign;
  • The driver crossed the center line.

Any of these acts could have been precipitated or aggravated by someone driving under the influence of alcohol or drugs.  In both Missouri and Kansas, an operator of a motor vehicle is breaking the law if he or she does so with a blood alcohol content of 0.08%.  Any alcohol content, even amounts less than 0.08%, can impair operation of a vehicle. Though, the law deems someone who tests over the legal limit under the influence.

In most instances, intoxication or impairment may explain why someone failed to exercise due care in the operation of a vehicle.  Failing to yield the right of way, for example, may be the negligent act that produced the car accident. In this instance, the negligence was aggravated by the operator’s use of intoxicants.  In short, some basic negligent act or omission committed by a driver will be the basis for the automobile negligence claim. Intoxication may explain the failure to exercise due care. In many situations, an assignment of negligence may also include it.

At The Scene

In any collision in which you suffer personal injury or property damage, you should always call the police.  Gather as much information at the scene as you can but pay attention to your own injuries.  If you suffer an injury and someone else is able to collect information about the collision, assign it to them. Such as the names of witnesses, photographs of the scene, and the name and identifying information of the other driver, including insurance information.  Take a photograph of the other driver’s insurance card and license, if possible.

Do not undertake any activity at the scene that is inconsistent with your injury, or which aggravates any pain you are experiencing. 

The insurance company will likely contact you soon after the collision before you fully know the nature and extent of your injury and try to settle your case.  The game plan is to settle your case quickly before you can retain an attorney.  Studies demonstrate that claims a car accident attorney pursues result in significantly better outcomes than claims the injured party handles. Even after paying the attorney fees.  The insurer will ask to take your recorded statement.  They will later compare and contrast that statement with any later testimony you provide if your case proceeds to litigation.  In most situations, it is ill-advised to provide a statement to the insurance company when you suffer an injury.

How a Car Accident Lawyer Can Help

Rather, at least consult with a car accident attorney before making any decisions about how to proceed with your claim.  Nearly any good and experienced attorney will permit a consultation free of charge. If the attorney accepts the case, they will pursue your case under a contingent fee or percentage fee arrangement.  There is no reason to ever pay a consultation fee to an attorney for a potential personal injury case.  Any attorney who requests a consultation fee or seeks a retainer to pay for costs of litigation is likely inexperienced in the field of automobile collision, drunk driver litigation.

In your drunk driver collision, the claims process and litigation are pursued like nearly any other automobile collision case.  There is special attention to obtain blood alcohol reports or sobriety tests from the scene of the collision.  In some cases, there may be delay on the blood draw for a BAC. This could make the BAC look lower than it likely was at the time of the collision.  In such situations, an experienced car accident attorney will frequently hire a toxicologist to extrapolate the likely BAC at the time of the crash.  The size (height and weight) of the intoxicated driver, the time the last beverage was ingested, and the time that has passed since the collision will all be used to estimate the likely BAC at the time of the collision.

What to Expect if You File a Lawsuit

If you are hit by a drunk driver and the claim is denied, or the insurance company simply fails to offer fair value for your case, your attorney will help you file and litigate a lawsuit. Your attorney will develop evidence and testimony of your injuries, as your medical records and consultations with your doctors demonstrate. Lost income, if applicable, will be demonstrated through employment records. In cases of future disability, lost earnings potential can be established with the assistance of vocational experts and economists.

They will need your assistance to answer questions in discovery. Discovery involves written questions seeking basic information about your injuries, witnesses, past medical conditions, employment history, and lost wages.  The defendant may also seek medical records and lost wage information. The defendant’s attorney will take your deposition, but your attorney will be present assisting you every step of the way.  Most cases go through “mediation”, which is a formalized settlement discussion. The courts frequently order it to help resolve cases without a trial.  If they do not settle the case, and statistically most cases settle without a trial, they will hold a trial.  You must participate in each stage, but your attorney will help direct you through each stage.

Can Third Parties be Legally Responsible for Injuries a Drunk Driver Causes?

Missouri has a statute that governs the relatively rare circumstances of when a person “licensed to sell intoxicating liquor by the drink for consumption on the premises” sells liquor to “visibly intoxicated” individual.

Assume, for example, that “Bill” sits at a bar for an evening and is continually served alcohol to the point that he is visibly intoxicated and beyond.  Bill leaves the bar, drives his vehicle a few blocks and strikes Jill, a pedestrian, while she is proceeding through a crosswalk.  Certainly, Bill is responsible for Jill’s injuries, but what if Bill only has $25,000 in insurance limits, and Jill has a catastrophic brain injury from being hit by a drunk driver?  In such circumstances, your attorney may investigate whether Section 537.053 R.S.Mo. offers any assistance to help Jill get fair compensation from the institution that facilitated Bill’s intoxication.

Such cases are rare because the proof is often difficult.  Did Bill consume alcohol at any other establishments?  Did he have a six-pack at home that he had purchased at a liquor store, not an establishment selling “liquor by the drink”?  Moreover, one must prove the elements of a claim by “clear and convincing evidence”.  This is a higher standard of proof that is required in most cases which require a “preponderance of the evidence”.  A preponderance of the evidence merely requires the plaintiff to cause the jury to believe his case is more likely true than not.  Clear and convincing evidence, for lack of better terminology, requires the jury to be really sure. 

It is somewhat easier to prove such a case when the seller served alcohol to a person under the age of 21.  However, even in such cases, the seller must have “known or should have known” the person was underage.

Hire an Experienced Attorney

There are no simple lawsuits.  While many people think it is easy to prove a case involving injuries when a drunk driver causes a collision, there are many details only an experienced attorney knows how to navigate. Contact our office today to speak with an attorney.