Car accidents: Proving fault

If you are in a car accident, the key to recovering payment for injuries or property damage may lie in your ability to help prove the fault of the other driver. Learn basic steps you can take to get the evidence you may need.

by Edward A. Haman, Esq.
updated May 11, 2023 ·  5min read

In most states, if you are involved in a car accident, you will need to seek compensation for injuries and property damage from the other driver’s insurance company. If the insurance company denies coverage, you will need to file a lawsuit against the other driver. This will involve proving that the other driver was at fault in both instances. 

Car accidents and the law

Auto accidents are typically covered by negligence law. You must prove that the other driver’s negligence (or carelessness) caused the accident. However, if you were also negligent, your damages may be reduced.

The District of Columbia, Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah have adopted no-fault laws, which are discussed more below.

The scene of the accident

Follow any instructions your insurance carrier provided you about what to do if you are in a car accident. Regardless of whether you are in an at-fault car accident state or one of the no-fault states, you should:

  • Call 911 to report the accident and request medical assistance. Do not provide medical treatment unless you are qualified to do so. However, if someone is in danger of death (such as from a vehicle fire or lying on the road), you may move the person out of danger.
  • Put on your vehicle’s four-way flashers, and set out warning devices if you have them.
  • Avoid making statements to anyone other than is necessary to exchange required information.
  • Exchange information with the other driver. Obtain the other driver’s name, address, driver’s license number, state of issue, make, model, and year of their vehicle, and their insurance company’s name, address, and policy number.
  • Take photographs of all sides of each vehicle; and of the scene from various angles, showing the location of vehicles, skid marks or broken glass on the roadway, and the location of any traffic signs or signals.
  • Draw a diagram of the scene. Note the direction each vehicle was traveling; the point of impact; the ending position of each vehicle; a road, traffic, and weather conditions; the speed you were traveling; the estimated speed of the other vehicle; any statements made by the other driver; and other facts that relate to how the accident occurred.   
  • Obtain the names and badge numbers of any law enforcement officers and ambulance or tow truck personnel (and the company name) that come to the scene. 
  • Obtain the names, addresses, and phone numbers of any witnesses, including passengers in the other vehicle.
  • Check for traffic cameras; your accident may have been filmed.

Police report

If the police came to the scene, there will be a police report. Ask the officer how and when you may obtain a copy of the police report or contact the law enforcement agency. The report may include the officer’s evaluation of who was at fault and whether any traffic citations were issued.

Sometimes police officers do not go to an accident unless someone is injured, in which case you will need to report the accident at the nearest police station, which may result in further police investigation.

Obtain a copy of the police report and provide a copy to the insurance company. If there is inaccurate information in the police report, there may be a procedure for you to object to the report, although there is no guarantee it will be changed.

Traffic laws

It will help if you can show that the other driver violated the law. Traffic laws are part of each state’s code or statutes. These laws are usually summarized in a booklet available in person or online from the state driver’s licensing agency. Check the table of contents or index for listings that may apply, such as “distracted driving,” “right-of-way,” “roadway markings, signs, and signals,” “rules of the road,” “speed limits,” “traffic laws,” “vehicle equipment,” etc.

If you find a rule that you believe was violated, obtain the code or statute number. If it is not in the booklet, ask the number's licensing agency. You may also get the information at your local library or a law library (usually at the local courthouse). Copy the statute or code number and the exact wording of the section.

Cell phone company records can show if the other driver was talking or texting at the time of the crash; however, you may need a car accident attorney's assistance to obtain such evidence.

Nature of the collision

In certain instances, an insurance company will rarely dispute which driver was at fault:

Rear-end collisions

A driver must keep a safe distance behind another vehicle and be attentive to stop safely – even if the car in front slams on the brakes. It is almost always the other driver’s fault if you were struck from behind. However, if you were also negligent (such as your brake lights were out, or you had a flat tire and didn’t pull off of the roadway), your recovery may be reduced. 

Left-turn collisions

A driver making a left turn must yield to oncoming traffic, so a driver making a left turn is negligent if struck by an oncoming vehicle. Exceptions are made if the oncoming car was significantly speeding or ran a red light. However, these circumstances can be difficult to prove.

What is no-fault insurance?

To simplify things and reduce court dockets, some states have adopted a no-fault auto accident system, which requires all drivers to have no-fault accident insurance. A no-fault state car accident claim is presented to your own insurance company, which pays for your injuries without regard to who was at fault. However, with a no-fault claim, you are usually limited to recovering medical expenses and loss of income. Depending upon the state, even if there is a no-fault car accident, you may still be able to file a lawsuit in certain circumstances (usually involving severe injuries). And the matter of property damage varies by state.

Following these tips can help you prove fault, if possible, when you are involved in a car accident.

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Edward A. Haman, Esq.

About the Author

Edward A. Haman, Esq.

Edward A. Haman is a freelance writer, who is the author of numerous self-help legal books. He has practiced law in Hawa… Read more

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.