I was struck by a car that ran a red light. No one was injured. I received a letter from an attorney saying this older gentleman is making a claim for injuries. How can he make a claim? The older man was clearly suffering from some kind of memory loss. He had no idea what happened in the accident when he spoke to police.

When you are involved in a car accident, the legal framework for determining who is at fault is typically straightforward. Did a driver fail to act as a reasonably prudent person would under the circumstances? But what happens when the driver who caused your injuries suffers from a severe cognitive or physical deficit, such as dementia, Alzheimer’s, advanced age, or sudden memory loss?

In New York, personal injury claims involving drivers with mental or physical disabilities are not governed by standard, one-size-fits-all negligence rules. Instead, New York courts apply highly specialized standards.

The Baseline Standard for Driver with a Memory Loss

This is similar to prior posts covering the issue of disabled plaintiffs in a lawsuit. A disabled driver might have a relaxed burden of proof to show a negligence claim against you. Having a driver with memory loss or a confused story presents a highly similar legal circumstance. The driver could have a reduced burden of proof depending upon what happened.

Under New York law, a defendant is generally held to an objective standard of care—meaning they must act as a “reasonably prudent person” would. However, when a party’s physical or mental capacity is compromised, there are two standards depending if the disability is mental or physical.

Mental Incapacity

New York courts historically apply a subjective standard to plaintiffs with mental deficiencies on issues of comparative negligence, as seen in foundational cases like Padula v. State, 48 NY2d 366 (1979). However, there is a massive caveat for defendants who cause crashes. The rule pertaining to severe mental deficiency of a party is strictly limited.

Under New York law, a driver who operates a motor vehicle on public roads cannot escape liability simply because they suffer from dementia or memory loss. If a driver chooses to operate a vehicle, they Court generally holds to the standard of a reasonably prudent driver, regardless of their cognitive baseline.

The driver that struck you will still have to prove that you were negligent by a “preponderance of the evidence.” In your case, if the other driver has no memory at all from the accident, it would not be possible for him to argue that you caused the accident. But a jury might be given a charge that it might consider the plaintiff’s age. Listoken v Gagolewski, 17 AD2d 637 (2d Dept 1962).

Despite your zeal to defend yourself, most experienced trial counsel would advise you not to beat up someone with dementia in front of a jury. Your attorney would ask one or two questions proving that the driver has no memory of the accident. The court could then dismiss claims against you.

Plaintiff with Amnesia

A common hurdle in car accident cases occurs when a driver claims they “cannot remember” how the accident happened due to retrograde amnesia, dementia, or head trauma sustained during the crash.

There is an exception to the rule regarding the burden of proof, if the plaintiff shows that the memory loss he suffered was due to your negligence. First, the plaintiff must establish, by clear and convincing evidence, that the plaintiff suffers from amnesia caused by the accident. Schechter v Klanfer, 28 NY2d 228, 321 NYS2d 99 (1971); Nahvi v Urban, 259 AD2d 740, 687 NYS2d 398 (2d Dept 1999).

The second part of this rule still requires that the driver shows some other evidence that you were at fault for the accident. So if there are no eyewitnesses, the older driver would have to produce some evidence that you were at fault for the accident.

Secondary Sources

Sometimes, litigants use an accident reconstruction expert to testify what they believed happened in the accident. Your lawyer can reconstruct the accident using objective evidence other than testimony:

  • Black Box Data. Modern vehicles contain Event Data Recorders (EDRs) that record speed, braking, and steering inputs in the seconds leading up to a crash. This data objectively proves what the driver was doing, regardless of their memory.

  • Medical Records. Subpoenaing the driver’s medical history can reveal whether they had a pre-existing diagnosis of dementia or cognitive decline.

  • Eyewitness and Video Evidence. Surveillance footage from traffic cameras or nearby business security systems are everywhere. Dashboard cameras and other surveillance can reconstruct the erratic driving behavior prior to the impact.

Since you said the other driver ran the red light, it is unlikely the older driver can overcome these two hurdles.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.