You were on the highway.

Minding your own business.

There was traffic ahead and you slowed down.

Next thing you know, a careless driver plows right into the back of your car.

Your car goes flying into the car in front of you.

Your car is crushed like an accordion and you suffer horrible and painful injuries.

The careless driver says "It wasn't my fault! The brakes didn't work!"

You're stuck in the hospital having had emergency surgery and both of your legs are in casts.

You know that the driver who hit you was careless. 

He was speeding. He wasn't paying attention.

You wind up bringing a lawsuit against him for being careless. For being negligent.

When his attorney answers the claims you are making he raises this defense again claiming that there was a defect with the car. If true, that can present some significant problems. There is really only one way to determine whether the defense's argument is true.

That's to test the car. Test the brakes.

Have a mechanical engineer inspect and evaluate the car in whatever condition it's in.

What happens though if the driver of the other car, the one who caused the accident claims that the car was totaled and destroyed? What happens if the car was sold to someone else? What happens if the car is no longer available? Can the defense still continued to maintain that  it was really the defective brakes that failed and not a careless driver that cause this accident?

Evidence Destroyed...What happens then?

When there is a critical piece of evidence that will help establish or rule out whether someone was responsible for causing and contributing to a horrific car crash, the courts tend not to take kindly to destroying of evidence. Someone who is involved in a serious car accident who is in touch with their insurance company as well as attorneys, should know that if they are going to raise this type of defense, they must do everything in their power to preserve and protect this critical piece of evidence.

In this case, it would be preserving the entire car so that it can be inspected at a later time.

If the defense argues that it was not driver error and carelessness that caused the accident, but rather a mechanical defect with the car, if they fail to produce the car for inspection that is often known as “spoliation of evidence.”

That is a fancy legal term meaning that someone has destroyed a critical piece of evidence.

This was evidence maintained exclusively in their control and that they knew or should have known that this piece of evidence would be critical for this particular claim or lawsuit.

There have been instances where a court has determined that the person or company in charge of that critical piece of evidence was careless and knew or should have known that that was going to be a very important part of any litigation in the future. Failing to preserve and protect that evidence means that the opposing side no longer has the ability to test that theory.

In some cases, the courts have turned around and told the defense

“Listen, since you did not preserve and protect this critical piece of evidence, you no longer get the benefit of claiming that this is why the incident happened and we have no choice but to dismiss your defense where you claim that the brakes somehow failed."

That's why any time there is a suspicion that there is a mechanical piece of evidence that will be needed to be inspected, it is critical for your attorney to send out a letter to the owner of that equipment putting them on notice that they should do everything in their power to preserve and protect that particular piece of equipment. Failing to do so could have serious repercussions later on when a lawsuit is actually brought.

To learn even more about spoliation of evidence and how it applies in a car accident matter, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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