car accident

How Is Negligence Proven in a Personal Injury Case?

You were involved in a car accident in Mobile. The other driver was cited by the police. The driver’s insurance company did not want to pay you a fair settlement and you have decided to file a personal injury lawsuit. You have been some research and know that you will have to prove that the other driver was negligent.  How does that work?

Elements of a Personal Injury Case

You may not believe it, but it takes more than being hurt to prove that the other driver is at fault. There are four basic elements that must be proven in order to have a successful personal injury case:

1. Duty

If you are filing a claim for negligence, the first thing that must be proven is duty. Every driver who gets behind the wheel has a duty to follow the rules of the road.

That means, for instance, a person operating a motor vehicle has the legal duty to follow the speed limits, stop at stop signs and not follow too close.

2. Breach of Duty

After the particular duty is established, you must then prove a breach of that duty. The other driver did something or failed to do something that a “reasonably prudent person” would or would not have done under similar circumstances.

A reasonably prudent person is a fictional person that a jury considers depending on the unique circumstances of each case. For example, driving the posted speed limit is generally evidence of reasonable prudence, but not if there is driving rain, high winds or a blizzard.  

A driver breaches his duty in a car accident when he runs a red light, follows too closely, or is texting instead of driving.

3. Causation

The third element that you will have to prove is that the other driver’s negligence directly caused your injury.  The mere act of running the stop sign or following too close is not enough. There has to be an injury.

4. Damages

The last element that you will have to prove is that you have suffered damages. In most cases, this is very simple to prove. Typical damages that can be recovered in an automobile wreck are physical pain and suffering, emotional distress, past and future lost wages and the effect of any permanent condition suffered.

The easier a particular element of damages can be quantified by a medical test, a picture or by expert testimony, the better the chance for a full recovery from a judge or jury.

One reason juries often award inadequate damages in a “soft tissue” injury case is that it is hard to show proof of the injury.  Unlike a broken arm that shows up on an x-ray or a bulging disc that clearly shows up on an MRI test, a soft tissue case requires more nuance and thought to develop.  

That being the case, whether your injuries or serious or just aggravating, it is always in your best interest to at least consult with an experienced personal injury attorney.

Elements of a Personal Injury Case

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Teen Drivers and Risk Factors

Billy Cunningham

Billy Cunningham

The following  article, about teen drivers and their risk factors was recently posted on the  TAOS Injury Layers website.  The lawyers at Burns, Cunningham & Mackey are members of TAOS Injury Lawyers along with lawyers all over the country.   It is copied here because addressing these issues is important for all of us.



Teen Drivers and Risk Factors


The risk of motor vehicle crashes is higher among 16 to 19-year-olds than among any other age group. According to the Centers for Disease Control and Prevention (CDC), six teens ages 16 to 19 died every day in 2014 from injuries sustained during a motor vehicle accident.15862-a-teen-girl-texting-while-driving-pv

Everyone that shares the road should be vigilant of risk factors that contribute to higher risk of injury. Parents especially should make it clear to teen drivers what those risk factors are. Discuss how to mitigate risk, and support prevention at every opportunity.

Teen Risk Factors 

If you have teen drivers, or know teen drivers, discuss these risk factors with them to help illustrate how they might mitigate these risks; not just for themselves, but also for the safety of other drivers on the road:

  1. .Underestimating Dangerous Situations –Bad weather conditions, roadway construction, or poor nighttime visibility are all good reasons to slow down and exercise more caution than usual. However, teen drivers regularly underestimate the safety of these hazards, and often make critical decision errors that would not have been made by a more experienced driver.
  2. Speeding – Teens are notorious for speeding and shortening the distance between themselves and the driver in front of them. According to one study, the presence of a teen male passenger increases the likelihood of this dangerous behavior.
  3. Late Nights and Weekends – In 2014, half of all teen deaths caused by car accidents occurred between 3:00 p.m. and midnight. More than half occurred on a Friday, Saturday, or Sunday.
  4. Distracted Driving – Cell phones are great for parents that want to keep better track of where their teens are, but cell phones also pose new driving challenges, particularly for young drivers. Distracted driving is commonly a result of cell phone use while driving and is hazardous for everyone on the road.
  5. Seat Belt Use – Only 61% of teens report always wearing their seatbelt. Seat belt use has been proven to reduce death and injury by as much as 50% when worn. Buckling up could save a teen’s life in a serious accident.
  6. Male Drivers and Drinking – Male drivers between the ages of 15 and 20 that were involved in a car crash in 2014 were speeding 35% of the time, and 24% had been drinking.

These are contributing risk factors for teen drivers and good talking points to discuss with them before they drive unsupervised.


One of the first things you should discuss with a teen driver is seat belt use. In 2014, of the teen passengers that died, more than half were not wearing their seatbelt.

Even in states without primary seat belt laws, parents and guardians should advocate for seat belt use among teens. Seat belt use has been proven to reduce serious crash-related injuries by as much as 50 percent.

Drinking and driving is another serious threat to teen drivers. Anyone less than 21 years of age is subject to a zero tolerance rule. It is illegal for teens to drink alcohol, but it’s worse when they get behind a wheel and drive.  This type of behavior should be prevented, even if it means admitting to illegal alcohol consumption.

Graduated driver licensing programs (GDL) are the best way for teen drivers to learn the skills they need to be successful on the road. All states have these programs, which provide more opportunities to practice driving. Limit teen drivers from driving during unsafe conditions, and promote greater involvement from parents.

By discussing risk factors with teen drivers and practicing prevention tactics, everyone can help increase safety for all who share the road.


Texting Equals Prison

We all know texting distract drivers. They are warnings everywhere. Here is one that should get your attention, keep your eyes on the road and away from texting: Jonathan Mikeal Raynes is going to spend 2 years in the Alabama State penitentiary because he was texting when his car struck another car killing its driver. He will then be on probation for two years and if he violates that probation, he will spend 8 years in jail.

You say it will not happen to me. Who is Mr. Raynes? From all reports, he is not a thug, a gang member, a hoodlum or bad guy. He wasn’t speeding, driving drunk or intentionally reckless. He was working – making deliveries for his father’s auto parts business when the wreck happened. The result of his texting is more than his prison time. He also has to live with the death of a 24 year old recent college graduate and the effect her death has on her family.

A fellow trial lawyer friend of mine, Mike Ferrara of New Jersey recently posted some interesting facts about the effects of texting in the United States. Distracted driving was linked to 1.4 million crashes in New Jersey between 2004-2013. These account for nearly half of all motor vehicle accidents during this period. At any given time on U.S. roads, there are 660,000 vehicles being driven by someone using a hand-held phone. In 2013, 10 percent of all drivers aged 15 to 19 involved in fatal crashes were reported as distracted at the time of the crash.

Texting while driving and has already been banned in 46 states. Alabama is one of those states. The ban on hand held cell phone conversations is not as strong. Talking on the cell phone is distracting as well. Research has shown that texting and driving is as dangerous as driving while intoxicated. Because texting is used regularly by younger people, drivers under 20 have the highest proportion of distraction-related fatal crashes.

You say “I don’t text. Why should I be worried?” It goes back to what my father taught me in the 60’s- defensive driving. Do not assume the other guy is going to do what is right. Do not assume that his blinker means he is really going to turn. Don’t assume he is going to stop at that stop sign. Don’t assume anything. Be wary. Keep a look out. The Raynes fatal wreck occurred when he swerved into oncoming traffic. Unexpected.

The National Safety Council observes April as Distracted Driving Awareness Month to draw attention to this epidemic. It urges us all to recognize this month, talk to others about distracted driving and practice safe driving techniques ourselves. It has a great webpage on what you can do to be safer It asks you take the Focused Driver Challenge and pledge to drive cell free.

I pledge to Take Back My Drive for my own safety and for others with whom I share the roads. I choose to not drive distracted in any way – I will not:

-Have a phone conversation – handheld, hands-free, or via Bluetooth
-Text or send Snapchats
-Use voice-to-text features in my vehicle’s dashboard system
-Update Facebook, Twitter, Instagram, Vimeo, Vine or other social media
-Check or send emails
-Take selfies or film videos
-Input destinations into GPS (while the vehicle is in motion)
-Call or message someone else when I know they are driving

Take the pledge to your children or other loved ones that you will be an attentive driver. Share your pledge on social media.

We all know distracted driving is a problem that is 100 percent preventable. Before you are tempted to send a text message, remember the dangers of distracted driving. Do what you can do to prevent tragedy from striking in your life! Don’t risk your life and others. Don’t spend part of your life behind bars. You do not have to live with a preventable error that cost another’s life. Don’t drive while texting or distracting. Pass it on- but not by texting when driving!.

Accidents Between Trains and Cars at Railroad Crossings

Alabama ranks among the top states in the nation in the number of railway incidents involving highway crossings. Why? Is it inattentiveness by drivers, speeding trains, difficult terrain blocking views or just bad luck? I performed a Google search to try to determine. Very little information. The National Safety Transportation Board issues railroad accident reports. Those reports are generally published years after a wreck. I found a website in Alabama for Alabama Operation Lifesaver. That organization has not posted any information since 2012. Here is what they reported regarding Alabama railroad crossing crashes involving motor vehicle with trains:


*apparently these were estimates as the report was issued before final tallies were in.

Nationally, it reported 1,431 crashes, 196 deaths and 760 injuries in 2011. All of those numbers are dangerously high. An Anniston Star article in May 2014 discussed several train wrecks that occurred in northeast Alabama.. Otherwise, there has been very little news in Alabama about these catastrophic wrecks – except when people die.

Locally, the stories of train collisions have been tragic.

  • In 2002, a train plowed into a Ford Mustang driven by 22-year-old Jacksonville resident Tonya Lena Southward at a crossing in Choccolocco, killing her as her vehicle sat on the tracks.
  • In 2010, a train struck and killed 46-year-old Oxford resident Kevin Lee McCullough as he walked down the tracks near his home around 5 a.m.
  • Earlier this year, a 35-year-old Oxford woman and her 7-year-old son were killed when a car driven by the woman’s daughter was struck by an oncoming freight train in Oxford.

    “We have 3,500 miles of track with over 6,000 crossings,” said Nancy Hudson, executive director of Operation Lifesaver Alabama, a non-profit organization focused on railway safety.

    “You’re onto something when you’re thinking about the size of the state and miles of track,” she said. “For the first time Alabama jumped into the top 15 for trespasser casualties.”

These wrecks can be prevented. Flashing lights and gates are the best warnings to keep vehicles off railroad tracks. Those are the responsibility of the railroad companies. Why aren’t there more warnings like this? Who decides what to put at these crossings? The railroad companies! That costs money and even though it has been shown in numerous settings that flashing lights and gates save lives, very few are used.

Instead of investing in those warnings, the train companies deny responsibility when one of these catastrophic car/train wrecks occur and turn to federal law to protect them from liability if they strike a car or truck. They say we took federal money to build these crossings and you cannot sue us because federal law says you can’t. This is not exactly true, but train companies have been very successful with this defense in Alabama.

We represented a passenger in a truck which was struck by a train. Due to his brain injuries, he does not remember the wreck. The truck driver stopped at the cross-buck warning and testified that because of a parked train on parallel tracks he could not see the train coming. By the time he saw the train coming it was too late. If there had been flashing lights and gates, the wreck would not have happened. We were able to overcome the use of federal money defense because the railroad was unable to prove federal funds were actually used at this particular crossing.

Even if you are as diligent as humanly possible, the wrecks can occur. They can be prevented by the use of flashing lights and gates at these intersections.