How to Dispute Fault for Car Accidents & ECMs

“I was badly injured in a car accident when another driver ran a red light, and the insurance company is saying the accident was my fault.”  As an Omaha attorney whose law practice is focused on representing people who have been injured in a car crash, this is something I hear often.  Many car accidents occur at intersections, and unfortunately, there are not always independent witnesses present to help determine who was at fault.  When there is dispute as to liability for a car accident, the dispute can often be resolved by preserving and analyzing the relevant pre-crash data that was stored by the involved vehicles’ crash data event recorders.

In Nebraska, in order to be successful on a personal injury or wrongful death claim, the party bringing the claim (the plaintiff) must prove the other party (defendant) was more than 50% at fault for the crash.  See Neb. Rev. Stat. §25-21,185.09.  In addition to the color of the traffic signal and right-of-way, other factors are also relevant in determining who was at fault for an intersection collision, such as speed and attentiveness.  Modern vehicles are equipped with Electronic Control Modules (ECM’s), also commonly referred to as Electronic Control Units (ECU’s), Crash Data Recorders, Airbag Control Modules, etc.  In addition to controlling the vehicle’s electrical systems, the ECM also contains the vehicle’s event data recorder, which stores data from a recent “event” or car crash.  The data preserved by the ECM can provide valuable information in determining liability such as speed, throttle position, braking and seat belt status.

If you have been injured in a car accident and speed and/or braking may be important to determining who was at fault, it’s important to make certain any relevant ECM’s are preserved in their post-accident condition until the data has been preserved.  Nebraska law places an obligation on parties to properly secure and preserve such important evidence.  See State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (Neb. 2002) and Trieweiler v. Sears, 268 Neb. 952, 992, 689 N.W.2d 807, 843 (Neb. 2004).  However, best practice is for your local injury attorney to make sure any adverse parties are on notice of this obligation by sending spoliation letters and making arrangements as soon as possible to have the data properly downloaded and secured.