A car accident can change your life in an instant. In the blink of an eye, you could be left with a totaled car and suffer catastrophic injuries. If the other driver is at fault, you can file a lawsuit to recover compensation from them or their insurance company.
But what happens if the other driver was drunk? Can you still sue them?
The short answer is yes. Since drunk driving is illegal, your case could be a civil suit as well as a criminal case. These two processes – civil suits and criminal proceedings – are different. Both can be difficult and time consuming, and benefit from the help of a seasoned personal injury attorney.
Before you take action, it’s important you know the differences between these two case types and understand how they’re handled according to Nebraska law.
Civil Suits Against Drunk Drivers
When you file a civil suit against a drunk driver, you’re trying to recover compensation for things like:
- Medical bills
- Lost wages
- Property damage
- Loss of future earning ability
A driver with a DUI or DWI conviction stands very little chance of winning a civil suit. Even if the driver is not convicted, there should be enough evidence of negligence to help you win. Not only that, but the drunk driver’s insurance company may do everything they can to settle out of court.
Unfortunately, the amount of money you’re entitled to may be more than the at-fault driver’s insurance limits. If this is the case, you will have to bring a civil suit against the driver hoping they have enough assets to pay for damages.
There are two Nebraska laws that affect how much compensation you receive in a civil suit: the comparative negligence rule and dram shop laws.
Nebraska uses a modified comparative negligence rule when it comes to accidents. Under this law, a percentage of fault is assigned to each party involved. If you are less than 50 percent at fault, you can recover compensation for your damages. However, if you are more than 50 percent at fault, you won’t recover anything.
Compensation is based on the percentage of the at-fault party. Here’s an example: let’s say that you’re assigned 30 percent of the fault and the other driver is assigned 70 percent.
If the court rules that $100,000 should be awarded for the accident, you will receive $70,000 because that’s the portion you were not responsible for. In this example, the other driver would receive the remaining $30,000.
In Nebraska, unless you did something to cause the accident, it’s almost certain that the drunk driver will be found 100 percent at fault.
Dram Shop Laws
A dram shop is a place that sells alcohol. This includes restaurants, bars, liquor stores, and sometimes private individuals. Dram shop laws hold establishments responsible for selling alcohol to an individual who is obviously intoxicated. This is known as indirect strict liability.
While Nebraska has a dram shop law, it may not help you as much as you think. In our state, dram shop laws can only be used if the establishment served alcohol to an obviously intoxicated person who was under 21. The only way this law can help your case is if the drunk driver was under age.
Criminal Proceedings Against Drunk Drivers
Criminal proceedings are not used to secure compensation for the injured individual(s) but to protect the public by punishing the drunk driver for their negligent actions.
Drunk drivers face criminal charges regardless of whether they caused an accident or injury. In some states, punitive damages may be imposed on the drunk driver as punishment. Unfortunately, punitive damages are unavailable under Nebraska law.
A DUI or DWI charge against the at-fault driver may not result in financial compensation but can be a bargaining tool when negotiating your civil settlement. For a drunk driving charge to help, you need proof the driver was drunk. The best evidence would be a copy of the police report stating alcohol was a contributory factor in the accident.
If you think the driver who hit you was drunk, you should do the following at the accident scene:
- If the other driver talks to you, listen for slurred speech, incoherent sentences, or see if you smell alcohol on their breath. If you think the driver may have been drinking, ask the police to conduct a Breathalyzer and/or field sobriety test.
- If you see them using eye drops, let the police know. Eye drops could indicate the other driver is under the influence of illicit drugs.
- If the at-fault driver has passengers in the vehicle, make sure they don’t switch seats. This is a common trick drunk drivers try to get off the hook.
- While taking pictures, which is something you should do after any car accident, try to look inside the other driver’s car. If you see open containers, notify the police.
- Similarly, if you see the other driver throwing away cans or bottles of alcohol, you should tell the police. This is also true of drug paraphernalia.
Wrongful Death at the Hands of a Drunk Driver
A statute of limitations defines how long you have to file a lawsuit after a car accident. Nebraska’s statute of limitations for personal injury and property damage is four years from the date of the accident. This does not determine the amount of time you have to file a claim with your insurance company.
If someone died in the car accident, the statute of limitations is two years from the day the victim died. That person’s next of kin can file a civil suit for:
- Wrongful death
- Loss of consortium
- Compensatory damages
- Unearned income
While money can never replace a loved one, it can provide stability. Property damage, medical bills, and therapy costs can put enormous stress on you and your family.
If you were injured or a loved one was killed by a drunk driver, you need to seek compensation. Contact the personal injury attorneys at Hauptman, O’Brien, Wolf & Lathrop to schedule a free consultation at 402-281-9712.
SOURCESNebraska DUI, Omaha drunk driving accidents, Omaha injury attorney
This post was written by Hauptman, O'Brien, Wolf, & Lathrop