Is the Second Driver Always Liable in a Rear-End Collision?

Fact or Fiction?

Some people say:

“When there’s a rear-end collision, the driver in the second vehicle is always the one who’s going to be held liable.”

Fact or Fiction?

Clarification: When we say “first vehicle,” we mean the one that’s in front.  When we say “second vehicle,” we mean the one that’s behind the first vehicle.

So is it fact or fiction?

Short answer: Mostly fact

Medium answer: Mostly fact, because the driver in the second vehicle is usually held to be the one at fault. But he is not always the one at fault.

Long answer: A rear-end collision goes through the same legal analysis as any other kind of motor vehicle accident.  (It’s not the case that head-on collisions go in one category of legal analysis and rear-end collisions go in another; the same law applies to all motor vehicle collisions.)  To determine whether a driver (let’s call him “Mr. Smith”) has been negligent in causing a collision with another person (let’s call her “Ms. Jones”) the law asks: did Mr. Smith have a duty to Ms. Jones? If so, did Mr. Smith breach or violate that duty? If so, did Mr. Smith’s breach or violation of his duty cause the accident? And if so, was Ms. Jones actually injured?

So there are four elements that must all be present for a court to find negligence and hold a driver (Mr. Smith) responsible to another person (Ms. Jones): 1) duty, 2) breach of duty, 3) causation, and 4) damages.

One of the duties that drivers have is to keep a safe distance between their vehicles and the other vehicles on the road.  When one driver violates this duty and tailgates another, then a rear-end collision may occur.  When this happens, a court is likely to find the second driver was negligent.  Why? Because the second driver had a duty (to keep a safe distance between himself and the first driver). Then he breached the duty (drove too close to be able to brake in time). Then the breach caused the rear-end collision. Then the first driver had damages (a dent in his fender, whiplash injuries after the impact, etc.).

However, not all rear-end collisions are caused by tailgating – and this is why not all rear-end collisions are the responsibility of the second driver.  Consider, for example, how an accident could happen if:

  • both drivers are sitting still in a line of traffic, and the first driver decides to back up in order to swerve out of the line.  The first driver misjudges the distance and backs into the second driver.
  • the first driver passes the second driver and then enters the second driver’s lane and abruptly slows (“cutting the second driver off”).
  • the second driver unexpectedly skids on black ice while slowing for a red light behind the first driver.
  • the second driver swerves to avoid a child who rushes into the street and veers into the first driver’s lane.

In these situations, the second driver might be able to make a successful argument that he did nothing wrong and did not violate any duty he owed to the first driver. Of course, the first driver may still claim the second driver violated a duty — just not by tailgating. For example, a driver who skids on ice might be held at fault for not having driven more slowly and cautiously when he knew ice was on the road. Such a case may go to a jury so that the jurors can decide how an ordinary prudent driver should have behaved under the road conditions that existed at the time. While the jury may still believe the second driver is at fault, it is not an automatic conclusion that they will do so.

Also, there may be situations in which both drivers are at fault.

However, if the question is whether the second driver is always at fault and obliged to pay the first driver’s damages, the answer is no – in some situations, the second driver may be held not liable for the damages he causes by rear-ending the first driver’s vehicle.

Some links to outside sources that cover the topic of rear-end collisions where the second driver is not necessarily at fault:


Nolo again