Car Accidents Caused by Brake Checking in Florida
September 7, 2022 | Sagi Shaked
Driving in Florida can feel frustrating. According to the Urban Mobility Report, the Miami metropolitan area was the seventh-most congested large city in the U.S. in 2020. Each commuter wasted 27 hours in traffic in 2020. Amazingly, 2020’s number was actually down due to COVID-19 restrictions. In 2019, Miami commuters wasted 74 hours in traffic.
Heavy traffic almost always leads to tailgating. And tailgating frequently triggers brake checking. But the liability for car accidents caused by brake checking could depend on many factors, including what happened before the accident.
Read on to learn about some of the consequences of brake checking and who may bear liability for car accidents that result from brake checking in Florida.
Brake Checking Accidents
Brake checking happens when you suddenly stop with a car following you. Under the broadest definition, brake checking can happen any time you brake suddenly. For example, if a car follows you too closely, you might brake to let the other driver pass.
But in a narrower definition, brake checking happens in response to tailgating and with the intent to cause the trailing driver to brake. In other words, a brake check happens when you “check” the other driver’s braking ability by hitting your brakes.
Under this definition, brake checking excludes braking suddenly for other reasons, like avoiding an object on the road.
Consequences of Brake Checking
Under the narrow definition, brake checking is dangerous. It also risks causing an accident for which you could bear criminal and civil liability.
In both negligence law and criminal law, the circumstances surrounding the accident will determine the liability of the driver who brake checked.
Negligence does not require that the negligent party have any specific intent. Instead, a person can bear liability for a negligent act if they knew or should have known their actions failed to meet the standard expected of a reasonably prudent person.
Criminal offenses usually require intent. With the exception of a few strict liability offenses like DUI, prosecutors need to prove you understood the risks of your actions and proceeded in spite of those risks.
This means the consequences of a brake checking accident will depend on the facts leading up to the accident and your intent in braking.
Injuries from Brake Checking
Apart from any legal penalties you might face, you could suffer serious injuries in a brake checking accident.
Brake checking accidents almost always involve a rear-end crash. These crashes happen when a trailing vehicle collides with the rear end of the leading vehicle.
Rear-end crashes happen frequently. According to Florida’s Traffic Crash Facts report, over 52,000 rear-end crashes happened in Florida in 2020.
Fortunately, rear-end crashes rarely cause fatalities. In the 2020 report, rear-end collisions only caused six deaths. The death rate is low because both vehicles are traveling in the same direction, so the collision energy is lower compared to head-on or angle collisions.
But these accidents still cause injuries. Rear-end crashes were the fifth leading cause of non-incapacitating injuries and the second leading cause of complaints of pain.
The most common injuries from rear-end collisions involve the chest, neck, and back. During a rear-end collision, the front driver will get pushed into their seat as their vehicle gets hit from behind. The driver then jerks forward as the vehicles come to a stop. In the rear vehicle, the driver whips forward into their seat belt, then falls back into their seat.
As the drivers hit their seat belts, they will bruise their chests. They might even fracture a rib or strain a chest muscle.
The back-and-forth whipping motion can hyperextend the neck, leading to a neck injury called whiplash. In whiplash, the muscles, tendons, or ligaments of the neck are stretched or torn. In serious accidents, whiplash can lead to nerve damage and spinal cord injuries.
Criminal Penalties for Brake Checking
The police can issue a traffic ticket for tailgating. But they have much more limited options for brake checking because Florida has no law specifically outlawing brake checking.
Prosecutors could pursue a case for aggressive driving. Under Florida’s aggressive careless driving law, a prosecutor must prove a driver performed two dangerous actions.
Brake checking is not one of the actions listed in the statute. This means a prosecutor must prove two actions beyond brake checking to get a conviction for aggressive careless driving.
Prosecutors could also try to charge a driver with reckless driving after a brake checking accident. Reckless driving involves driving with wanton or reckless disregard for the safety of others. “Wanton or reckless disregard” means that you understood the risks of brake checking but recklessly disregarded those risks.
As a result, brake checking constitutes reckless driving only if the leading driver intended to cause the trailing driver to brake, despite knowing the danger involved. If the driver had some other intention when braking, like avoiding a pedestrian, reckless driving probably does not apply.
Liability for Brake Checking
Florida uses a no-fault insurance system. This means your insurance company pays for your injuries regardless of who caused the accident. After a minor accident, insurers must reimburse the policyholder for their expenses, even if they caused the accident.
But in some situations, fault becomes relevant. If an injured person’s losses exceed their policy limits, they can pursue the at-fault driver for any unreimbursed losses. And when someone suffers a significant permanent injury, they can seek both unreimbursed losses and pain and suffering damages from the at-fault driver.
Civil liability for brake checking relies on negligence law. As a result, you do not need to prove the leading driver knew of the risks involved. You only need to prove the leading driver should have known the dangers of brake checking.
Recovering Compensation for Brake Checking
Under Florida law, every driver who contributes to an accident shares in the liability. To recover compensation for a brake checking accident, you must show the other driver was negligent. The other driver will try to show you contributed to the accident.
If the other driver succeeds, a judge reduces your damages by your share of the fault. Thus, if you bear 40% of the fault for a brake checking accident due to tailgating, you can only recover 60% of your damages.
Because of Florida’s comparative fault law, you should avoid both tailgating and brake checking. Either behavior will expose you to physical harm and legal risk.