Road Rage: Finding Ways Forward After A Hit and Run

It isn’t always necessary, at the time of an accident’s lawsuit, to know exactly what or who caused the harm or damage. There are also times where this basic idea gets even more complicated: take the example of an accident in a vehicular hit and run, where the driver remains unknown, but the consequences are devastating. Trial attorneys help start and monitor the process of identifying what happened and who was responsible. Experienced trial attorneys often feel the deep loss of these cases, and become somewhat lonely voices and fighting for a way forward for the victims and their families.

Here, we’re going to look at how “The Law” isn’t always a well-defined route, especially with a case involving a tragic hit and run. An unknown, hit and run driver had pretty apparently killed a man named Nerys Alexander Flores in 1994. It was late night, and Flores was walking in Forsyth County on the end of a spring day, when he was hit and killed. A Winston-Salem police officer investigated the accident. The dead man was found on the incline of a ditch right next to the road. Bits of broken glass littered the scene and Mr. Flores even had glass in his hair. It appeared, according to the police officer’s investigation, that some of the glass was both from a broken windshield and from a broken signal lamp lens. The coroner said the blunt force was consistent with a body being pulled onto a car hood and then against the windshield.

In terms of how courts approach this problem (of unknown hit and run drivers), common sense isn’t always common. This sense of unreality is pronounced when a loved one is callously harmed, literally out of the dark. This is why it is so very important to have a talented, experienced trial attorney working on a case such as this, and as soon as possible. Auto insurance attorneys have unique skills in knowing what obstacles, such as occurred here, may prevent justice. The problem? Our legal system is arranged so that cases that don’t meet a certain threshold, or basic likelihood of winning on a certain set of facts, even if given benefit of the doubt, don’t make it in the court. There’s sense in this basic idea. Especially, when a good trial attorney believes there may be a stricter type of liability worth fighting for (called per se, when a law protecting someone is broken). Cases such as the death of Mr. Flores, however, sometimes show how the system can appear to be quite unfairly unemotional as well as illogical. The trial court dismissed the lawsuit. The appellate court, in upholding the dismissal, may have indicated its own attitude with an early statement in the case: “evidence tends to show” that Nerys Flores was walking along the roadway. A non-lawyer would rightly wonder: “Only ‘tends’ to show?”  The road where they found Flores’s body is almost surely where he was struck and killed. The coroner’s evidence helped prove this. A qualified expert (the police officer) found what certainly seemed to be parts of the vehicle both at the scene and on the body. In a similarly incredible way, the appeals court observed “there is some tenuous evidence which suggests that the hit and run driver might have known he hit someone.” At that point, the court went on to dismiss the weight of both the police officer and the coroner as “hearsay” and not ‘dispositive.’

II. Good Arguments: Yes; Bad Law? Maybe.

It’s probably true, that hard cases make bad laws. Sometimes it’s just as true that bad laws, such as North Carolina’s hit-and-run laws, also make hard cases. Though the appeals court completely agreed with the trial court analysis, the way they arrive at that conclusion can seem tortured to the non-legal mind. In fact, at one point, the appeals court quoted a case that argued dismissing a claim is valid if “an element of the opposing parties claim is nonexistent.” While this legal principle is sound, the fact that Nerys Flores’s body was found in the condition it was, and described by a professional as a hit-and-run victim, means “evidence” certainly existed. This case hardly seemed to have ‘non-existent’ facts. It’s the way the law defined “elements” that required all the skill of an experienced auto accident lawyer to get at least a hearing.

III. Shared frustration: “Blame for tragedy”

Even this court of appeals, in dismissing the claim, seemed somewhat aware of the glare of a deeper injustice to Nerys Flores. At one point, the majority wrote: “(W)e are also aware of, and acknowledge, the visceral tendency of people to seek an assignment to blame for tragedies such as this one. However, the rules governing negligence exist precisely for the purpose of a portioning such a blame.” Unfortunately, neither the North Carolina trial or appeals courts acknowledged the tendency of hit and run drivers to flee, and the way harm is occasioned in fact, by this ‘visceral tendency’ to run.

After this observation about victim’s ‘viscera’ that the court, probably, most properly focused where the issue really is: is there a North Carolina statute that imposes duties on a hit-and-run driver in these kinds of circumstances? All members of the court repeatedly concluded that there was no “forecast of negligence” to be found. However, there are other legal scholars that disagree entirely with this analysis (see footnote 2, for example).

The problem in many ways was a battle of how to interpret North Carolina laws, such as there being no “duty” to stop in a hit and run.

Trial attorneys are often the most powerful, and lonely advocates, of what is right. At the conclusion of its analysis, the court’s dismissal of Flores’s claim could unfortunately be (as the court itself said) “simply put,” and that in the strictly legal analysis, “running over a person, and then leaving the scene, is not negligence in and of itself.”

For families seeking—deserving—some emotional closure and justice, there’s also much more than what the court called “portioning blame.” In this case, it is still not clear what happened in terms of finding Nerys Flores’s murderer. So often, it is a determined family (linked with their trial attorney’s passion) who help keep these cases from being ignored and then forgotten.[1]

If it’s hard to imagine the long odds of this case, it’s sadly easier to imagine the frustration of the victim’s family, friends, and associates. But, perhaps like the original trial attorney litigation against major corporations, which were dismissed and dismissed and dismissed: only to find eventual traction and then vindication[2]. Experienced trial attorneys know that sometimes the battle for justice is a long road. If you, a family member or a loved one have been hurt in a vehicle or accident related to a motor vehicle, or involving related claims or your legal rights or hearings, please contact us.  You will speak with an auto accident/ trial lawyer who can best answer your questions.  There is never a fee for this initial consultation.

[1] Curious if any progress had been made in the case, especially an arrest, I made a call to the Winston-Salem police records department, but the call yielded no specific results. This is in part due to the changes in records keeping practices and the shift from paper to electronic records since the death. A Google search for any update on identifying Mr. Flores’s killer also came up empty.

[2] For example, states have been trying to fix some of what goes wrong in their state hit-and-run statutes, by recognizing people do flee from aid: instead of faulting victims for trying to “apportion blame.” For example, Is a "Hit-and-Wait" Really Any Better Than a "Hit and-Run"? Plutchok, Samuel E. Maurice. A. Deane School of Law, Hofstra University (9-1-2016).