If a Car Cuts Me Off and I Hit it, Am I Liable?

Rear-end accidents can happen for a variety of reasons. Sometimes, a driver following another vehicle has a lapse of attention and does not see it in time when the vehicle ahead hits the brakes. Or sometimes drivers can become aggressive and engage in dangerous displays of one-upmanship, like tailgating or brake-checking, that can lead to a miscalculation and a collision.

In other situations, a driver seeking to commit insurance fraud might deliberately cut in front of your vehicle in a way that makes a rear-end collision impossible for you to avoid, then seek to blame you for the crash.

If you hit another vehicle from behind because of the way the other driver was acting behind the wheel, and injury or property damage results from it, then the circumstances of how the accident happened can make a big difference in your ability to recover compensation from the other driver. In this post, we consider what can happen in terms of your ability to make a legal claim when another driver cuts you off and you end up hitting that person’s vehicle from behind.

The presumption of fault in rear-end collisions

In Delaware, the rear-end driver is often found to be the at-fault party in rear-end crashes. The reason for this is based on general principles of negligence, which assume that, as the following driver, you owe the driver in front of you a duty of reasonable care not to follow too closely and to be diligent in paying attention to traffic ahead of you.

This is why, for example, a favorite tactic of automobile insurance scammers is to try to force you into a rear-end collision with them by suddenly cutting you off. The idea behind the scam is that your insurance company is apt to settle the matter quickly because of the presumption that you would be found liable, especially if no one else is available to testify on your behalf as a witness to what really happened.

“Road rage” is another way that rear-end collisions can happen. Another driver who is for any reason upset with you can cut you off and then suddenly hit the brakes. The intention here is often not to cause a collision but to cause you annoyance, but the road rage driver will often believe that if you do hit that person from behind, you will nonetheless be the one held legally responsible.

How to defend yourself if you hit another car from behind

The general rule of following driver liability is not absolute. If you are involved in a rear-end collision as the following driver, and you believe the other driver was the true at-fault party in causing the accident, then you may have legal defenses available to you. Much depends on the circumstances leading up to the accident, and what you do in its aftermath.

Understand that the driver ahead of you can be liable in a rear-end crash

To begin with, all drivers owe other drivers a duty of reasonable care. This includes a duty of the driver ahead of you not to engage in negligent, reckless, or even intentional driving behaviors.

For example, what if the other driver did not take care to properly maintain that person’s vehicle so that its brake lights were in working order? This can be taken as negligent behavior that can work to tip the presumption of negligence away from you and toward the other driver.

Or, as we have seen above, sometimes the other driver will intentionally or inadvertently drive in a way that makes it hard for you to avoid a collision even when you are driving prudently and reasonably. In either of these situations, your best defenses to avoid being held responsible for a rear-end car accident take three main forms: engage in defensive driving, carefully gather as much evidence as you can if you cannot avoid a collision, and engage an experienced car accident attorney to represent you.

Carefully gather evidence in the aftermath of a rear-end accident

If you get into a rear-end crash with a driver who cuts you off, immediately after the collision, stop at the scene or as close to it as you can without blocking traffic or creating a hazardous condition. Exchange your required information with the other driver or drivers involved in the accident.

Delaware law requires that if anyone is injured or killed or if damage is estimated to be $2,000 or more, call the police and report the accident. Also report the accident if a driver’s physical ability is impaired due to drugs or alcohol. Wait for a police officer to arrive to take a report. Keep in mind, if anyone needs medical attention, call 911; if that is not possible, and the other injured person requests you to take that person to medical care, then do so.

Take photos of the accident scene, including the vehicles involved and any damage to them, the accident scene in general, and any skid marks that may be on the road that may have resulted from the crash.

If there are any witnesses to the crash, get their contact information so they can provide a statement to your attorney later.

If the accident occurred in an inhabited area, and if you are physically and safely able to do so, consider contacting the occupants of nearby buildings who may have surveillance cameras in use to preserve the recordings those cameras may have made of the accident. Many such surveillance systems automatically re-record over old video input after a period, so it is important to preserve this evidence if possible.

Be prepared to make a statement to any police officer who arrives to investigate the accident. Keep your answers to any questions direct and do not volunteer unnecessary information. If the police make a report, obtain a copy of it. If you have the option to make a report of your own to law enforcement, do so.

Seek medical attention as soon as possible after the accident

Seeking medical attention is good practice after any motor vehicle collision, not just a rear-end one. Even if you do not feel any pain or other symptoms after the crash, see a doctor anyway. Sometimes soft tissue damage, like a whiplash injury, does not manifest symptoms right away. Also, the longer you wait to see a doctor after a collision, the more likely it becomes that an insurance company you negotiate a settlement with will try to use that against you to minimize the severity of your injury and to try to low-ball any settlement offer to you.

Hire an experienced Delaware car accident attorney

An experienced Delaware car accident law firm can help you gather evidence to support your side in a rear-end collision. They’ll know what evidence to look for in the aftermath of a rear-end collision, and how to get it. This includes gathering photographic and video evidence, contacting witnesses and interviewing them to get their statements, collecting available material evidence from the scene, and obtaining police reports.

Consider consulting with an experienced car accident attorney before speaking with insurance company adjusters, even from your own insurance company. Insurance adjusters may be looking for ways to avoid policy payouts or to minimize them by trying in subtle ways to get you to say things that they can hold against you later. An experienced attorney can help you avoid these traps for you.

An attorney for the other driver will often attempt to do the same thing with you, contacting you and asking you questions in the hope that you will say things against your own interest without knowing it. If you have an attorney representing you, these defense attorneys cannot contact you directly.

An experienced attorney can also make sure you file your personal injury claim in court in a timely way, so you are not barred from recovery by the Delaware two-year statute of limitations for personal injury cases.

Furthermore, during pretrial preparation, it will often be necessary to engage in pretrial legal discovery to get statements from the other side in the matter. A good car accident lawyer will know what questions to ask the other driver and can counsel you on how to respond to the other driver’s attorneys’ requests for information in discovery.

Remember as well that most personal injury legal claims, including car accident cases, settle out of court. Insurance claim adjusters and defense lawyers are skilled negotiators whom you should not underestimate. Having your own skilled negotiator as your attorney will make sure you do not unwittingly find your settlement being rejected or receive a settlement payout that is for less compensation than you deserve.

The importance of having a skilled personal injury attorney to represent you is hard to overstate. This is in part because of how Delaware courts treat the issue of comparative negligence. Delaware uses a modified comparative negligence system under 10 DE Code § 8132 (2024), commonly referred to as the “51% rule.” Under this rule, you can recover damages even if you were partially at fault if your share of fault is 50% or less. Your compensation will be reduced by your percentage of fault.

But if you are 51% or more at fault for the harm you suffer in a rear-end collision, then under Delaware law, you will be barred from recovering any damages. Because rear-end accidents are often presumed to be the fault of the following driver, if this is the situation you are in, then it is critical that your attorney look for ways to avoid you being found to be mostly to blame.

Have you been involved in a rear-end collision in Delaware?

As we have shown above, being involved in a rear-end accident as the following driver can feel like a precarious legal situation for you because of the initial presumption that you must be at fault. If this is the situation you find yourself in because another driver’s behavior led to the accident, then do not lose hope.

Call Silverman, McDonald & Friedman today or fill out our contact form to schedule a free consultation with one of our Delaware personal injury lawyers. We provide our clients with more than aggressive advocacy. We offer you hope for a better future, even if at first it seems that the odds are against you. Our Delaware car accident attorneys serve clients throughout the state, with offices in Seaford, Newark, and Wilmington.