A mediator must be aware of the law as it pertains to the type of case before him. The most common cases involve personal injury litigation. Of these, the most prevalent are auto accident cases. Some recent decisions involving the “hit in the rear” fact pattern will aid the mediator in understanding the position of plaintiff and defendant.
Where plaintiff’s car is lawfully stopped and struck in the rear by defendant’s car, there is a presumption of negligence against defendant. Unless the presumption is rebutted, the beneficiary of the presumption (plaintiff) is entitled to judgment as a matter of law. This presumption arises out of necessity because the front driver is usually in a poor position to observe the conduct of the rear driver, and thus introduce evidence as to the cause of the collision. Often plaintiff can offer no evidence against defendant, and the latter refuses to do so.
There are conflicting decisions as to what constitutes a rebuttal of the presumption. In one case, defendant/front driver was talking on a cell phone at 45 mph, came to an abrupt stop over a blind hill. Plaintiff/rear driver following 4 car lengths behind at 35 mph slowed approaching the hill but was unable to avoid the collision. Rear driver’s damage claim was barred unless he can establish a complete absence of negligence on his part. In another case (decided by a different Court of Appeals) a front driver going 35 mph stopped in traffic for no apparent reason. It was held that a jury could find that the front driver’s actions were unreasonable and his negligence was at least one of the proximate causes of the collision. This confusion was resolved when the Fla. Supreme Court held that the rearward driver need not establish complete lack of negligence on his part in order to rebut the presumption. It is sufficient to show some degree of negligence attributable to the front driver.
Thus, the mediator must understand that rear end collision cases must be governed by principles of comparative fault. Where a jury could conclude that the front driver was negligent and comparatively at fault, the presumption is rebutted. The case will go to the jury without the aid of the presumption.