If you are a subrogation professional sending out demand letters and attempting to recover property damage, medical payments, or PIP benefits from a tortfeasor who is obviously at fault in an automobile collision, your worldview is one in which 50% of vehicle brakes in America are seemingly defective. It isn’t possible to go a week, or even a day, during which you do not receive a liability claim denial advising that the tortfeasor’s brakes just happened to fail at the instant prior to striking your insured. It’s a tale as old as automobiles themselves. Therefore, subrogation professionals should be aware of how the defense of failed brakes works, how states each approach the defense differently, and how to combat a claim defense as overused and frequently fabricated as, “The dog ate my homework.”
In fact, according to a report by the Federal Motor Carrier Safety Administration (FMCSA), nearly 30% of fatal and injury crashes involving large trucks are the result of truck brake problems. Brake problems can refer to part or component issues, brake defects, brakes that are out of adjustment, brake pads that need to be replaced, and total brake failure.
When a defendant claims brake failure as a defense to a rear-end collision or other types of vehicle collision accidents, a Pandora’s Box of issues is opened, magnified by the fact that every state handles this defense a little differently. When brake failure is raised, some of the issues that should come to mind for subrogation professionals are:
- Brake and Vehicle Maintenance: The defendant is responsible for maintaining his or her vehicle, including its brakes. Regular maintenance and inspections can often prevent brake failure. If it can be shown that the defendant neglected this responsibility and that led to the brake failure, the defendant could be found liable for the accident.
- Sudden and Unforeseeable Brake Failure: If the defendant can prove that the brake failure was sudden and unforeseeable and can prove that he had maintained his vehicle properly, he might not be held at fault. The defense is similar to claiming that the driver suffered a passed out or suffered a sudden medical emergency. Every state handles the defense of “Sudden Emergency” a little differently, and a chart showing the sudden medical emergency laws of all 51 jurisdictions can be found HERE. Courts often consider whether the driver reacted to the brake failure prudently and took appropriate action during the emergency.
- Manufacturing Defect: In some cases, brake failure might be due to a manufacturing defect or even recent, negligent brake repairs or other mechanical work done to the vehicle. If this is proven, the liability might shift partly or entirely to the manufacturer or the brake repair service entity.
- Contributory Negligence: Some jurisdictions have laws regarding contributory negligence. This means if you are found partially at fault (e.g., for poor vehicle maintenance), your compensation could be reduced accordingly. In some states, contributory negligence can affect the defendant’s ability to blame the accident on failed brakes.
- Evidence and Investigation: It’s crucial to gather evidence, conduct an investigation, and secure documentation. This includes maintenance records, vehicle inspection reports, and even expert testimony about the brake system. This evidence can significantly influence the determination of fault. If the defendant claims that his brakes failed, resulting in an accident, he may or may not have the burden of proof, depending on the state involved and the nature of the failure being asserted.
There are different approaches to asserting and defendant against a defective brake defense. In many states, the defendant must prove that (1) the vehicle’s brakes failed, (2) the failure caused a collision, and (3) the cause of the failure. In other states, a defendant’s assertion of sudden brake failure as the cause of an accident is a “denial of negligence”, not an affirmative defense. In those jurisdictions, the defendant does not have the burden of proving that brake failure caused accident, making it all the more difficult to prove that not only did the dog not eat the student’s homework, but the student didn’t even own a dog. This explains why this defense is so frequently encountered.
As with all aspects of American civil litigation and subrogation law, mastering the law is quite difficult because (1) there are 51 different jurisdictions to keep track of, and (2) the law is constantly changing. The laws regarding the allegation of brake failure is no different. It is forever a moving target—and a complicated one.
In New Hampshire, for example, the leading brake failure case is the Supreme Court decision in Meaney v. Rubega.[1] Plaintiff, John Meaney was exiting his State Police cruiser at a construction site when a vehicle operated by the defendant, Alfred Rubega, struck the cruiser, injuring the plaintiff. Meaney sued the defendant for negligence and the defendant denied liability “on the basis of the failing of his brakes, which were presumed to be in good working order.” At trial, the plaintiff requested that the trial court instruct the jury that brake failure is an affirmative defense, requiring the defendant to prove by a preponderance of the evidence that brake failure was the cause of the accident. The trial court denied the request. The jury returned a verdict for the defendant and the plaintiff appealed. The Supreme Court affirmed the trial court ruling, by making a rather obtuse distinction between an “affirmative defense” and a “denial.”
(1) An “affirmative defense”, which it described as a “matter asserted by [the] defendant which, assuming the complaint to be true, constitutes a defense to it.” With an affirmative defense, the defendant admits the plaintiff’s allegations but provides an excuse or justification or otherwise defeats the plaintiff’s cause of action. The defendant has the burden of proof with an affirmative defense.
(2) A “general denial”, on the other hand, was described by the Supreme Court as “a traverse of the facts alleged in the plaintiff’s pleading.” Rather than accept the plaintiff’s characterization of the facts, a general denial goes to the root of the cause of action and permits the introduction of any proper evidence tending to controvert the facts which the plaintiff must establish to sustain his case. But the plaintiff still maintains the burden of proof and must show that the defendant was negligent, even in light of the claim of brake failure.
The Supreme Court in Meaney v. Rubega ruled that the defendant’s assertion of brake failure as the cause of the accident was a denial of negligence, not an affirmative defense. The plaintiffs alleged that the defendant “failed and neglected to keep a proper lookout and to operate his vehicle in a safe, reasonable, lawful and prudent manner.” Rather than agreeing with the plaintiffs’ characterization, the defendant contested the plaintiffs’ assertion that he operated his vehicle in a negligent manner. The cause of the accident, the defendant maintained, was brake failure, not his negligence. Although brake failure “sounds like a defense, the court said it reflects nothing more than a denial by the defendant of negligence.”[2] Notably, the dissent in that case accurately pointed out the following:
The defendant urges us to characterize “sudden brake failure” as a denial of negligence and not as an affirmative defense. A denial is evidence of any matter that directly controverts the fact of the defendant having committed the complained of acts. See Fuller v. Rounceville, 29 N.H. 554, 558-59 (1854). Here, the defendant admits that the car he was driving struck the rear of the stationary cruiser, which then struck and injured the plaintiff. On these facts, the plaintiff has established a prima facie case of negligence. The substance and effect of the defendant’s assertion of a “sudden brake failure” proffers an excuse or justification: his brakes, presumptively in good working order, failed. Accordingly, I would conclude that the defendant’s excuse or justification of “sudden brake failure” constitutes an affirmative defense.[3]
In Missouri, the issue has been handled similarly. In McVey v. St. Louis Public Service Company, the Missouri Supreme Court held that an allegation of brake failure is not an affirmative defense, but rather, evidence from which the jury could have found that defendant was not negligent.[4] Missouri courts maintain that a defendant sued for negligence may show himself free of the alleged negligence by “evidence of a sudden brake failure.” Such evidence does not present an affirmative defense but goes to show that the sudden brake failure, and not the defendant’s negligence, was the proximate cause of the injury. Sudden brake failure in Missouri, like New Hampshire, is merely a denial of the plaintiff’s cause of action and is properly received as a general denial. The “risk of non-persuasion on the issue of defendant’s negligence” remains with the plaintiff. That is an onerous burden when the instrumentality of the proof necessary to maintain your cause of action in a simple auto accident case is owned by and under the exclusive control of the defendant who is using the “throw-down” brake failure excuse. Again, it becomes obvious why it is a defense we see and hear so frequently. It’s easy to allege and very difficult for the plaintiff to counter in jurisdictions where such a claim is considered to be a general denial and not an affirmative defense.
Other states which apply traditional negligence concepts to brake failure cases, also require the plaintiff to prove a negative (i.e., “the absence of a brake failure”). This includes Nebraska.[5] In Bourke v. Watts, the defendant’s vehicle suddenly veered in front of the plaintiff, killing the defendant. The defendant claimed that the right rear brake failed, and there was evidence that the vehicle had been worked on by a dealership seven months before the accident. A work order did not give details on the exact work done to the brake which allegedly failed. An expert for the plaintiff testified that a loose washer and spring within the subject brake were loosened as a result of the collision and they were not the cause of it. A defense expert testified that the loosened condition occurred just before the accident. With two experts contradicting each other, the issue of who had the burden of proof became paramount. The Nebraska Supreme Court ruled that he burden was on the plaintiff to show that the defendant was negligent by act or omission, and not on the defendant to prove that the brake failure caused the collision. Ruling for the defendant, the court also noted that he operator of a motor vehicle is only liable for the defects in the vehicle of which he is aware or, in the exercise of due care, should have been aware.
Courts in Florida, Mississippi, and New Jersey have considered “sudden brake failure” to be an affirmative defense.[6] In Ironman v. Rhoades, the Florida Court of Appeals noted that although there were no Florida cases on point, sudden brake failure is an avoidance or affirmative defense that must be specially plead. The Michigan Supreme Court in Bridwell v. Segel ruled for the plaintiff because the record did not contain evidence from the defendant from which the jury could have found that the defendant successfully bore the burden of proof on his affirmative defense. In Roberts v. Hooper, the New Jersey Superior Court ruled for the plaintiff, stating that the trial judge disproportionately emphasized the Sudden Emergency Doctrine in the jury charge by stating that, if the defendant was confronted with a sudden emergency over which he had no control, he should not be found guilty of negligence if he exercised reasonable prudence. The New Jersey appellate court also held that the trial court should have advised the jury that the defendant could be exonerated of negligence only if he met the burden of proof that his brakes suddenly failed without knowledge or reason to know on his part of any condition or defect which might result in brake failure.
In Ohio, the Supreme Court in Bird v. Hart, faced the brake failure defense when the defendant rear-ended the plaintiff while stopped at a red light.[7] At trial, the defendant argued that the collision was not due to negligence but was the result of an “unavoidable accident”, the failure of her brakes. She introduced evidence tending to show that due to a complete loss of brake fluid the foot brake was rendered useless, and that the brake failure was sudden and unexpected. Defendant claimed that an emergency was created by the brake failure, and that afterwards she acted as a reasonably prudent person would have done under the circumstances.
The New Jersey Superior Court has melded the affirmative defenses of brake failure and the Sudden Emergency Doctrine, holding that defendant has the burden of proving his affirmative defense that his brakes suddenly failed and that the condition or defect causing such failure was not known to him or reasonably discoverable by him prior. A defendant would be entitled to a verdict in his favor if the jury so found and also found that, when confronted with brake failure as a sudden emergency, he exercised reasonable prudence in pursuing the course of action which he pursued rather than some alternative course of action such as veering to the left or right.[8]
New York took a unique approach in Suitor v. Boivon, when the Supreme Court concluded that plaintiffs met their initial burden of showing entitlement to partial summary judgment because, absent some excuse, “it is negligence as a matter of law if a stopped car is hit in the rear.”[9] Thus, a rear-end collision “ ‘is sufficient to create a prima facie case of liability’ with respect to the operator of the moving vehicle and “imposes a duty of explanation on the operator of the moving vehicle.”[10]
In California, a defendant alleging failed brakes has the burden of proof to establish the exact cause of the brake failure and an instruction to the jury that the defendant was required to show the cause of the brake failure in order to rebut a presumption of negligence was proper.[11]
In Maryland, the appellate court went even further and noted that there is a duty to test the brakes before driving.[12] Defective brakes are obvious, because they can be detected by the simple pressure of a foot. The court noted that the test is so simple that anyone can perform it. If such a test shows the brakes in working order, and then they suddenly fail, the driver may not be liable for negligence in driving with them. If no test is made, if the brakes are not even tried, the driver cannot rely upon a presumption that the machine is safe. The Court of Appeals noted that the defendant will not then be excused from liability because he did not know his brakes were bad.
The state of Washington requires evidence of a brake defect to be offered by the defendant in order to allow the defense of sudden brake failure.[13] In Goldfarb v. Wright, the court noted that in all cases in Washington where the defense of sudden brake failure has gone to a jury, there has been physical evidence of some defect in the brake or braking mechanism. In the absence of such evidence, this defense is not tenable.
Inattentive drivers frequently step on the gas instead of the brake or slam their foot down on the floorboard thinking they are slamming on the brakes; when in reality, they are not. The maintenance records, physical custody of the vehicle, etc., are all in the exclusive care, custody, and control of the defendant. It’s his or her vehicle. Therefore, it is patently unfair to require the plaintiff to prove a negative by overcoming all of these evidential obstacles and showing that the brakes, in fact, did fail.
For questions relating to automobile subrogation and the defense of brake failure, contact Lee Wickert at leewickert@mwl-law.com.
[1] Meaney v. Rubega, 703 A.2d 1384 (N.H. 1997).
[2] See Dyer v. Herb Prout & Co., 498 A.2d 715, 717 (N.H. 1985).
[3] Meaney, 703 A.2d 1384 at 1386.
[4] McVey v. St. Louis Public Service Company, 336 S.W.2d 524 (Mo.1960).
[5] Bourke v. Watts, 391 N.W.2d 552 (Neb. 1986)
[6] Ironman v. Rhoades, 493 So.2d 1097 (Fla. App.1986); Bridwell v. Segel, 106 N.W.2d 386 (Mich. 1960); Bullock v. Sim Ramsey, Jr. Trucking Co., 207 So.2d 628, 631 (Miss.1968); Roberts v. Hooper, 438 A.2d 351 (N.J. App..1981).
[7] Bird v. Hart, 205 N.E.2d 887 (Ohio 1965).
[8] Roberts v. Hooper, 438 A.2d 351 (N.J. App..1981).
[9] Suitor v. Boiven, 631 N.Y.S.2d 960 (1995); Cohen v. Terranella, 491 N.Y.S.2d 711 (N.Y. 1095); Countermine v. Galka, 189 A.D.2d 1043, 1044, 593 N.Y.S.2d 113 (1993); DeAngelis v. Kirschner, 171 A.D.2d 593, 567 N.Y.S.2d 457 (1991)).
[10] Edney v. Metropolitan Suburban Bus Auth., 178 A.D.2d 398, 577 N.Y.S.2d 102 (1991).
[11] Harris v. Irish Truck Lines, Inc., 521 P.2d 481 (Cal. 1974).
[12] Miller v. Reilly, 319 A.2d 553 (Md. App. 1974).