I was involved in an auto accident hit head on via drunk driver that left the scene do I have a case against him or the sherriff dept?

UPDATED: Jun 15, 2009

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I was involved in an auto accident hit head on via drunk driver that left the scene do I have a case against him or the sherriff dept?

I was hit head on via drunk driver on 5-29-09 which totaled my vehicle. However he did not have ins and empty alcohol containers found in his car. He left the scene and was found down the street in the woods along with other laws he broke but he did not go to jail. My vehicle was totaled but ins did not pay it off. Do I have a case to try and sue him or the sherriff’s dept?

Asked on June 15, 2009 under Accident Law, Mississippi


M.S., Member, Connecticut Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

In order for a plaintiff to file a lawsuit against a defendant, the plaintiff must demonstrate that the defendant acted below the appropriate standard of care (with recklessness or negligence, for example) and as a result of that conduct the plaintiff suffered injuries.  In this instance, it is clear that the drunk driver operated his car negligently; however, you are not likely to recover any money from him if he does not have insurance unless he has significant personal assets.  Usually, although not always, people that do not have insurance also lack personal assets.  On the other hand, failure to arrest is not a basis to file suit against the police officers who decided, for whatever reason, not to arrest him.  While you can file a complaint with the department, you cannot recover damages on this basis. 

However, you may have something called a "Dram-Shop Claim" which is a lawsuit against an establishment that serves alcohol to someone that gets into an accident while driving over the influence.  If you can demonstrate that the establishment that the drunk driver purchased alcohol from knew or should have known that he was intoxicated, yet served him anyway, you may have grounds for brining a dram-shop claim.  Moreover, it is also likely that the establishment will have something with respect to insurance or assets that permit recovery.

Therefore, I suggest that you consult with a personal injury attorney to discuss the merits of your case and discuss the best way to proceed forward.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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