Visitor Question

Killed while changing a flat tire…

Submitted By: Beth (Mesa, AZ,USA)

I have a question about my daughter’s father who was killed in a traffic accident in Alabama. The decedent was changing a flat tire when he was hit by a motorist and thrown from the immediate scene. He was pronounced dead upon arrival at the hospital. The driver was only 18, and a year prior had hit a semi-truck.

A witness claims the decedent did not use any flashers and he was not pulled all the way off the road. The witness also placed another vehicle approaching opposite the driving car, preventing a lane change to avoid the accident (this was not present in police report or accident diagram). All this info from the witness was noted from her rear view mirror.

No blood or alcohol testing was performed. In fact, police were not present at the scene until 45 mins after the wreck. No other obstructions were noted on the rural four lane roadway. Google earth shows the road in a straight path. It was approximately 3pm on a clear day. Nonetheless, the decedent was named at fault.

An attorney declined this case. With AL following the contributory negligence rule, is there any other recourse? There was no will. His status was single. We never married, but have a 24yr old daughter, who is the next of kin. We both live in AZ.

I also want to know if the auto insurance pays regardless of who was at fault? What if both parties are at fault? Thank you for any information you can give.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.

Answer

Dear Beth,

Unfortunately, the State of Alabama is a “Pure Contributory Negligence” State. This means if the victim is found to have contributed even in the slightest amount to his or her injury, that victim is not entitled to ANY compensation from the party who caused the injury.

Pure contributory negligence is the most harsh of the comparative and contributory laws. It differs from other contributory negligence state laws which follow the 50% and 51% rules. Under those rules, a victim may be entitled to an amount of compensation as long as his or her contribution to the injury was not over 50% or 51%, depending upon the state.

Arizona has a 2 year statute of limitations for personal injury and wrongful death claims. If the death occurred within the last 2 years, the decedent’s family still has time to file a lawsuit. To do so, you or the decedent’s family will have to find conclusive evidence showing the decedent did not contribute to his own death in any way.

Hire a private investigator. Let the investigator track down the driver and the witnesses. There may be more witnesses you aren’t aware of. If the investigator secures proof the decedent didn’t contribute to his death, an attorney will be much more likely to accept the case.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: October 16, 2014

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