Face the deer in the headlights


One day last month, our firm received three separate and unrelated subrogation claim files involving serious injuries, property damage and a death resulting from tractor-trailers whose drivers had lost control after being used to avoid a collision with a deer on the highway. In two of the losses, the 18-wheelers overturned and were struck by other vehicles shortly afterwards, resulting in further injuries and damage. The deer that started it all is presumably still alive, although uninsured. A passenger in one of the vehicles that hit the truck died.

Loss of control collisions resulting from the presence of deer on the roadway have become commonplace. The National Highway Safety Administration (NHSA) recently conducted a study analyzing the ever-increasing danger of deer-related vehicle crashes. These accidents have steadily increased over the years due to increasing deer populations and increased speed limits. There is a serious deer overpopulation problem in the United States due to deforestation (which actually helps the deer), limited hunting, and a lack of natural predators. In 1930, the white-tailed deer population hovered around 300,000. Today, it’s over 30 million, and none of them obey traffic signs or use crosswalks.

There are more than 1.5 million deer-related vehicular accidents each year, resulting in an average of 10,000 serious injuries, 200 deaths, and over $1 billion in property damage. The vast majority of them occur in the Midwest, especially in Wisconsin, Minnesota, Illinois, Iowa, Michigan, and Ohio. However, for the past 11 years, the state topping State Farm’s list of states with the highest likelihood of such accidents has been West Virginia, where the odds of hitting a deer are an astounding 1 in 41. Compare that with Hawai’i, where the odds are 1 in 6,823.

Gary L. Wickert

In many insurance claims involving deer collisions, the insured is hit by the swerving car or truck or they come across wreckage on the road that resulted from the collision. Subrogating the swerving vehicle to avoid the deer is often an afterthought, if not a thought at all. However, aggressive subrogation professionals should remember that careful drivers who react appropriately when confronted with a deer in the headlights can usually avoid the devastation and carnage resulting from the inappropriate action.

When claims professionals receive claims involving deer strikes, they should take the time to investigate a few miles downriver from the accident and look for signs of Deer Crossing. These signs are there for a reason and are placed in areas known for high deer traffic to warn motorists and truckers. These warning signs are usually ignored because they are ubiquitous; but it gives the plaintiff’s attorney something to talk to the jury about. Deer are most commonly affected at dusk and dawn. The real culprits in these collisions, however, are drivers who swerve to avoid hitting a deer. A swerve can cause vehicles to shift into oncoming traffic, crash into trees and other objects, or overturn at night. The safest and most prudent course of action when faced with a deer in the headlights is to slow down as much as possible and let your vehicle ram the deer.

Hitting a deer can ruin your day. But that’s nothing compared to the misery that could result if the driver swerves into a different lane or into oncoming traffic. Although deer can cause vehicle damage and even injury with smaller vehicles, there is a much higher risk of serious injury and damage if the driver swerves and hits a tree, telephone pole or other vehicle. This is especially true if a tractor-trailer or commercial truck is involved. Experts advise drivers to take their foot off the accelerator and maintain a straight path to reduce damage and avoid injury to themselves or others. The dmv.org website says succinctly, “It’s best to lock up the brakes, block the horn, and (weather permitting) duck behind the dash.” The Wisconsin Department of Transportation states, “…the safest option is to hit the brakes and deer…If you suddenly swerve, you may lose control and then risk a more serious collision with another vehicle or vehicle. stationary object such as a tree or utility pole. “Do not swerve” is the universal consensus regarding the safe course of action to take when a deer appears on the roadway.

The sudden emergency doctrine is a doctrine in tort law that states that a driver faced with a sudden and unexpected perilous situation that is not of his making and who acts as a reasonably prudent person would in the circumstances will not be held responsible even if later reflection shows that the wisest course has not been chosen. This defense will likely be used by a driver who swerves to avoid a deer and causes other serious damage, injury or death. However, evidence that the overwhelming consensus is that prudent action is not to deviate can help sway a jury and tort adjuster and convince them that the defendant driver’s actions were not the actions a reasonably prudent person would have taken. Facing this defense is better than no subrogation potential at all. In North Carolina, for example, the defense requires the driver to be “suddenly and unexpectedly confronted with imminent danger to self or others.” If you get a statement that the driver swerved to avoid hurting the poor deer, the defense might not apply. By comparison, the defense would never be available to a driver who swerved to avoid a squirrel. Therefore, simply by showing no appreciation or consideration of the danger to the driver, you can negate the doctrine of sudden urgency. This is easy to do in collisions involving lower speeds. Remember that the sudden emergency doctrine only applies when it is shown that a collision or accident has occurred as a result of a sudden emergency and not on a party’s own initiative. . White v. Taylor Distribution Co., Inc., 753 NW2d 591 (Michigan 2008).

Drivers who don’t see deer until the last minute often don’t pay attention. Deer Crossing signs are installed at great expense and for a very important reason. Traveling at 75 MPH for half a mile after passing such a sign is generally not the action of a reasonably careful driver. Deer are most active at dawn and dusk. They are most visible from July to September when the fields of alfalfa, soybeans and milo are ripe and food is plentiful. Sex sells and during the rut, which usually begins November 13 and lasts 10 days, when breeding activity is at its peak, deer are everywhere. When investigating these accidents, watch out for skid marks. If they start a short distance from the point of loss of control, the driver probably wasn’t paying attention. The absence of skid marks indicates that the driver did not even attempt to stop.

When animals other than a white-tailed deer enter the scene, the formula changes. Swerving to avoid a massive Chianina bull that weighs more than a mid-size car will likely be deemed reasonable, given that a collision with it can total the car and kill everyone inside. There are 22 million vehicles registered in Texas. There are also 13 million head of cattle, the most in the country and more than double the number in the state with the second largest, Nebraska. Collisions are inevitable. An excellent article on the law involved in vehicle/livestock collisions can be found HERE.

Surprisingly, other animals also regularly cause out-of-control crashes. Squirrels, opossums, raccoons, and domestic dogs and cats can also set off a chain reaction that ends in tragedy. But these small mammals change the dynamic, as hitting a squirrel or cat will likely cause no damage to the vehicle and is almost always the safest option. Facebook Posts Blasting Truck Drivers Mowing Down a Family of Geese Crossing the Road; unaware that swerving to avoid these creatures at 55 miles per hour could result in the death of a family of people. According to Capt. Bryan Niewind of the North Dakota State Highway Patrol, “It sounds very cruel, but what’s going to happen is if you slam on your brakes, the traffic around you is going to do the same and go. cause a collision…and that’s more dangerous than just hitting animals.Captain Niewind or someone like him will testify at trial about a collision involving a vehicle that swerved to avoid wildlife on the road.

When my dad taught me to drive, he talked about the “big picture” and deciding how I would react to something happening in front of you before it happened. He insisted that I should always anticipate the unexpected. Areas with high deer populations often cut back on the forest so drivers have the opportunity to see a deer or other creature scurrying towards the road. Reminding jurors that the “big picture” includes keeping an eye on the sides of the road ahead of the vehicle. Other factors that come into play include the type and size of vehicle being driven. A white-tailed deer is unlikely to injure the driver of a tractor-trailer. How big is the animal? Smaller does and fawns may evoke fond memories of the Disney classic “Bambi,” but that doesn’t make it wise to endanger others around you to save wildlife. PETA members make good defendants.

About Gary Wickert


Wickert is an insurance litigator and partner of Matthiesen, Wickert & Lehrer, SC, and is considered one of the world’s leading experts in insurance subrogation. He is the author of several books and legal treatises on subrogation and is a national and international lecturer and lecturer on subrogation and motivational topics. He can be contacted at [email protected]

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