As frustrating as it is to be tailgated, it is illegal in Virginia to respond by brake checking. If you do, you could face a reckless driving charge, usually a Class 1 misdemeanor, with penalties including license points, fines, and jail time. You could also be liable for an ensuing accident.
What If the Rear Driver Was Tailgating?
Under Virginia state law, it’s illegal to follow someone too closely, given the traffic conditions. That might seem to justify a brake check to get the driver in the rear to back off. However, that is not the case. One illegal act does not justify another. In fact, if the driver in front brake checks a driver tailgating them and a crash occurs, both drivers could face criminal charges.
If another driver is tailgating you, let them pass you. Change lanes to let them pass by, and if you can’t, indicate that the tailgating driver may overtake you. Do not do anything aggressive or dangerous that could cause a collision.
What Are the Dangers of Brake Checking?
The first significant risk of brake checking is the rear-end collision. When a driver slams on the brakes, the driver behind them might not have time to stop before colliding with the vehicle in front of them. Rear-end collisions can cause serious injuries and extensive property damage.
The second significant risk of brake checking is that it can lead to aggressive driving and road rage incidents. Tailgating is already an aggressive maneuver, and brake checking a tailgater might make them angrier, leading to aggressive or confrontational behavior that might cause a brake-checking accident. In extreme cases, road rage can cause violent confrontations between drivers that result in severe injuries or even death. Contact our Virginia car accident lawyer today.
Who Can Be Held Liable in a Brake Checking Accident?
Brake checking accidents involve complicated issues of liability. Brake checking is illegal, which would suggest the driver in front is liable for a crash. However, tailgating is also illegal, which might indicate that the driver in the rear is liable for a collision.
The liability question becomes even more complicated because of Virginia’s contributory negligence law. This rule says that if someone who files a personal injury claim contributed to an accident in any way, they could lose their right to compensation for their injuries. Because of this strict law, the driver who files a brake check accident claim must show that the other driver is fully responsible for the crash. Otherwise, they will likely lose their case.
An exception to this rule exists in the “last clear chance” doctrine, which comes into play when both parties to a lawsuit were negligent—such as when a tailgating driver collides with a brake checking driver. When determining whether to award compensation, the courts will consider who had the final opportunity to avoid an accident. Depending on the circumstances, a court might decide that the brake checking driver had the last clear chance since they did not need to apply the brakes as they did. Alternatively, a court might hold that the tailgating driver would have been able to avoid a sudden slowdown had they not been following so closely. A lawyer can review your case and explain how the “last clear chance” rule might apply to it.
What Do You Have to Establish in a Brake Checking Accident Claim?
As with most Virginia car accident claims, the key to winning a brake checking accident case is to show that the other driver caused the crash through their negligence. In other words, the driver who filed the claim must prove that the other driver caused the accident and their injuries by failing to take reasonable steps to avoid a crash.
How Do You Prove Brake Checking?
You’ll need extensive evidence of what happened to prove brake checking and win your case. To that end, an attorney can gather and review items like the following:
- Dashcam footage: Video footage from a car dashcam could show the other driver’s dangerous actions as they occurred.
- Witness statements: Other drivers or passengers who saw the incident can back up your story.
- Police reports: Officers at the scene will write down what happened and may note if they think the lead driver slammed on their brakes without due cause.
- Skid marks: These marks on the road can show how suddenly a car stopped.
- Damage patterns: Collision experts can review the damage the cars sustained in the crash for clues about how they collided with each other and at what speed.
- Traffic camera footage: Nearby traffic cameras might have caught the incident as it unfolded.
What Should You Do If You Are Involved in a Brake Checking Accident?
If you’ve been in a brake checking accident, taking the following steps can help you protect your health and start building a solid case for compensation:
- Call the police: If you haven’t already, report the accident. Ask for a copy of the police report when it’s ready.
- Seek medical attention: Get checked out by a doctor, even if you feel fine. Prompt treatment is crucial to your prognosis, and it also creates a causal link between the accident and any injuries you suffered.
- Gather information: Write down everything you remember about the crash. Include the other driver’s behavior, road conditions, and any witnesses.
- Take photos: If you can, return to the accident scene and take pictures of any skid marks, road signs, or damage to the area. If your injuries prevent you from doing this, ask your lawyer or someone you trust to do so for you.
- Keep records: Save all documents related to your medical care and any costs from the accident.
- Talk to your insurance provider: Let your insurance company know about the accident, but don’t say anything to suggest you were to blame.
- Be careful what you say: Don’t post about the crash on social media or admit fault to anyone.
- Get legal help: Talk to an experienced personal injury attorney who knows about car accidents. They can advise you on your rights and pursue compensation on your behalf.
Contact a Virginia Car Accident Lawyer
It’s tough to win a brake check accident claim without help from an attorney with experience handling motor vehicle accidents. The Virginia car accident lawyers of Marks & Harrison have spent decades handling cases like these and can help you demand fair compensation. Call us today or complete our contact form for a free case review with an experienced Virginia car accident attorney.
