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By Kevin R. Culhane

Model Interrogatories

Excerpted from Model Interrogatories

The vast majority of tort cases arise out of motor vehicle/car accidents and allege vehicular negligence. These cases are so commonplace as to become routine, and yet it is important to remember that in order for plaintiff to prevail, he or she must prove each of the traditional elements of negligence. Interrogatory discovery can help to develop the facts and identify the witnesses necessary to prove each element.

As in other negligence cases, the plaintiff in an automobile negligence case must establish that defendant’s conduct constituted a breach of a legal duty that was the cause in fact and the proximate cause of actual damages to plaintiff. Each of these elements is discussed in turn below.

Elements

Duty

Legal duties ordinarily arise from affirmative conduct that the defendant undertakes, and in vehicle negligence cases, the duty of due care arises from defendant’s affirmative conduct in operating a motor vehicle. A plaintiff must establish that defendant engaged in this affirmative conduct or was legally liable for the acts of another person under the substantive law. Many of the interrogatories in this chapter seek to discover and establish the facts necessary to prove the affirmative conduct requirement.

Breach of Duty

The defendant breaches his or her obligation to exercise due care when defendant fails to act as would a reasonably prudent person under similar circumstances. Interrogatories directed toward defendant’s conduct seek information necessary to establish plaintiff’s contention that the defendant failed to act as would a reasonably prudent person under the circumstances.

Cause in Fact

Under modern analysis, defendant’s breach of duty is the cause in fact of plaintiff’s damages when the breach is a substantial factor and a material element in bringing about the harm. A plaintiff is thus required to establish that defendant’s negligence met these tests; plaintiff cannot prevail if the injuries would have occurred even without defendant’s negligence. This chapter includes numerous interrogatories pertaining to any person, event, or condition that is alleged by defendant to have contributed to plaintiff’s injuries. Responses to these interrogatories will be directly probative on the issue of whether defendant’s negligence was the cause in fact of plaintiff’s damages.

Proximate Cause

While the matter has been the subject of continuous academic debate, trial courts tend to identify the issue of “proximate cause” with so-called “intervening forces” and “unforeseeable results.” In practice, the existence of additional forces which combine with defendant’s negligence to cause injury will require the jury to affirmatively determine that defendant’s conduct was the proximate cause of plaintiff’s damages. Similarly, the jury will be instructed on proximate cause when defendant’s negligence, unaccompanied by any intervening forces, causes a result or damage which is arguably “unforeseeable.” You may use the questions in this chapter to elicit information pertaining to these proximate cause issues.

Damages

Finally, the plaintiff must establish that the defendant’s negligence caused the plaintiff to suffer legally cognizable damages. Traditional damage analysis divides the recoverable compensatory damages into (1) special damages, which may be calculated with some precision and which ordinarily represent past or future out-of-pocket losses; and (2) general damages, which are ordinarily awarded for intangible losses such as pain, suffering and humiliation. Specific interrogatories are designed to identify defendant’s contentions regarding general and special damages and to ascertain the known facts regarding these damages.

§410   Definitions

All interrogatories in this book utilize the standard definitions. These definitions are set forth in §102.

§420   Interrogatories Relating to Accident Facts

The sections that follow include interrogatories designed to ascertain the basic facts about the accident. These interrogatories will elicit information known to your opponent, as well as any contentions that he or she will advance. Since these interrogatories deal with most of the issues that arise in accident litigation, they will form the core of your interrogatory set in most cases.

§421      Plaintiff to Defendant

§421.1    Involvement in Accident

  1. Please state whether YOU were involved in an automobile accident that occurred on __________.

  2. If your answer to interrogatory number 1 was yes, please state whether YOU were the driver of an automobile that was involved in an accident that occurred on __________.

  3. If your answer to interrogatory number 1 was yes, please state whether YOU were the owner of an automobile that was involved in an accident that occurred on __________.

§421.2    Location

  1. Please set forth the location of the INCIDENT.

  2. Please set forth the time of the INCIDENT.

  3. Please set forth the date of the INCIDENT.

§421.3    Defendant’s Contentions re Accident Cause

These interrogatories are designed to reveal whether the defendant will contend that the accident was caused by a third party, a vehicle defect, a weather condition, or other cause. The interrogatories will also reveal any claim of contributory or comparative fault on the part of plaintiff, together with all facts and circumstances that bear on these contentions. Interrogatories based on these questions should ordinarily be included so that any exculpatory facts regarding defendant’s conduct will be identified at an early stage. Occasionally a plaintiff should consider restricting the scope of these questions, because their use might suggest a defensive position that has not occurred to the defendant.

  1. Do YOU contend that negligence of any otherPERSON caused the INCIDENT?*

  2. Do YOU contend that negligence of any otherPERSON contributed to any injuries sustained as a result of the INCIDENT?*

  3. Do YOU contend that any negligence on the part of plaintiff caused the INCIDENT?*

  4. Do YOU contend that any negligence on the part of plaintiff contributed to any injuries arising from the INCIDENT?*

  5. Do YOU contend that negligence on the part of anyone not a party to this lawsuit caused the INCIDENT?*

  6. Do YOU contend that negligence on the part of anyone not a party to this lawsuit caused any injuries arising from the INCIDENT?*

  7. Do YOU contend that any defect in any vehicle contributed to the happening of this INCIDENT?*

  8. Do YOU contend that any defect in any vehicle contributed to any injuries arising from the INCIDENT?*

  9. Do YOU contend that negligent maintenance of any vehicle involved in the INCIDENT caused the INCIDENT?*

  10. Do YOU contend that negligent repair of any vehicle involved in the INCIDENT caused the INCIDENT?*

  11. Do YOU contend that negligent servicing of any vehicle involved in the INCIDENT caused the INCIDENT?*

  12. Do YOU contend that negligent maintenance of any vehicle involved in the INCIDENT contributed to any injuries sustained as a result of the INCIDENT?*

  13. Do YOU contend that negligent repair of any vehicle involved in the INCIDENT contributed to any injuries sustained as a result of the INCIDENT?*

  14. Do YOU contend that negligent service of any vehicle involved in the INCIDENT contributed to any injuries sustained as a result of the INCIDENT?*

  15. Do YOU contend that negligent operation of any vehicle involved in the INCIDENT caused the INCIDENT?*

  16. Do YOU contend that negligent operation of any vehicle involved in the INCIDENT contributed to any injuries sustained as a result of the INCIDENT?*

  17. Do YOU contend that weather conditions contributed to the happening of the INCIDENT?*

  18. Do YOU contend that weather conditions contributed to any injuries sustained as a result of the INCIDENT?*

§421.4    General Details Regarding Accident

These questions require a general recitation of the facts surrounding the motor vehicle accident, including speed estimates for both vehicles, facts relating to the parties’ alertness and perception and the parties’ reactions once the danger became known. The physical facts will be revealed by the responses, which will then often be used by experts to formulate a hypothesis as to the factual cause of the accident.

  1. Please set forth your estimate of the speed of your vehicle at the time of the INCIDENT.

  2. Please set forth each fact upon which YOU base your estimate of the speed of your vehicle at the time of theINCIDENT.

  3. Please set forth your estimate of the speed at which each of the other vehicle(s) involved in the INCIDENT was traveling at the time of impact.

  4. Please set forth each fact upon which YOU base your estimate of the speed at which each of the other vehicle(s) involved in the INCIDENT was traveling at the time of impact.

  5. Please set forth the speed limit applicable to the section of road on which your vehicle was traveling immediately prior to the INCIDENT.

  6. Please set forth the amount of time that elapsed between the time YOU first noticed the other vehicle(s) and the moment of impact.

  7. Please set forth the manner in which YOU became aware of the presence of the other vehicle(s) involved in theINCIDENT.

  8. Please state whether YOU applied the brakes on your vehicle prior to impact.

  9. Please set forth the amount of time that elapsed between the time YOU applied your brakes and the moment of impact.

  10. Please set forth your estimate of the speed of your vehicle just before YOU applied the brakes.

  11. Please set forth each fact upon which YOU base your estimate of the speed of your vehicle just before YOU applied your brakes.

§421.5    Defendant’s Activities on Day of Accident

These questions track the defendant’s activities on the day of the accident and seek to identify any witnesses to defendant’s conduct on that date. This discovery may be extremely important, because witnesses to the defendant’s activities might establish that the defendant was in a hurry, was consuming alcoholic beverages, etc.

  1. Please state the approximate time YOU woke up on the day of the INCIDENT.

  2. Please state in chronological order each place to which YOU traveled on the day of the INCIDENT.

  3. Please IDENTIFY each business to which YOU traveled on the day of the INCIDENT.

  4. Please IDENTIFY the owner of any residence to which YOU traveled on the day of the INCIDENT.

  5. For each place to which YOU traveled on the date of the INCIDENT, please set forth your approximate arrival time.

  6. For each place to which YOU traveled on the date of the INCIDENT, please set forth your approximate departure time.

  7. Please IDENTIFY each PERSON with whomYOU spoke on the date of the INCIDENT.

  8. Please IDENTIFY each occupant of your vehicle at the time of the INCIDENT.

  9. Please state where each occupant of your vehicle was sitting at the time of the INCIDENT.

  10. Please IDENTIFY each PERSON who rode in your vehicle on the day of the INCIDENT.

§421.6    Defendant’s Contentions re Plaintiff’s Speed

These interrogatories, together with those pertaining to defendant’s speed which immediately follow, are used to obtain speed estimates from the participants in the accident. The follow-up interrogatories are designed to inquire as to the applicable speed limit at the accident scene, and the answers to these questions will reveal the party’s awareness or lack of awareness as to the applicable speed limit at the time that the interrogatories are answered.

  1. Please set forth your estimate of the speed at which the plaintiff’s vehicle was traveling at the time of impact.

  2. Please set forth each fact upon which YOU base your estimate of plaintiff’s speed set forth in your answer to interrogatory number 1.

  3. Please set forth your estimate of the speed at which each vehicle involved in the INCIDENT was traveling at the time of impact.

  4. Please set forth each fact upon which YOU base the estimate set in your answer to interrogatory number 3.

  5. Please set forth the speed limit applicable to the section of road upon which plaintiff’s vehicle was traveling immediately prior to the accident.

§421.7    Defendant’s Contentions re Defendant’s Speed

  1. Please set forth your estimate of the speed at which your vehicle was traveling at the time of the INCIDENT.

  2. Please set forth each fact upon which YOU base the estimate of your speed set forth in your answer to interrogatory number 1.

§421.8    Defendant’s Contentions re Unavoidable Accident

Every trial lawyer appreciates that occasional accidents occur with no negligence on the part of anyone. One example is the case in which the accident occurs after one driver suffers an unforeseeable heart attack or stroke. The interrogatories that follow are designed to elicit the facts relating to defendant’s claim that the collision was the result of an unavoidable accident rather than operator negligence.

  1. Please state whether YOU contend that the injuries alleged in plaintiff’s complaint were caused by events which could not have been avoided with the use of ordinary caution.*

§421.9    Defendant’s Contentions re Visibility

It is always important to know whether the parties contend that their vision was obstructed or impaired in any manner. Bear in mind that the identification of obstructions to vision may indicate that the party was traveling too fast for existing circumstances.

  1. Please describe the weather conditions at the time of the INCIDENT.

  2. Please describe all sources of illumination at the scene of the INCIDENT.

  3. Please state whether there existed any obstruction to your vision at the time of the INCIDENT.

  4. If your answer to interrogatory number 3 was yes, please describe the nature of the obstructions to your vision.

  5. Please set forth your best estimate of the distance that YOU had an unobstructed view of the roadway in front of your vehicle.

§421.10  Defendant’s Vision and Hearing

These questions are designed to identify whether the defendant suffered from any impairment to his or her vision or hearing. The responses may indicate a physical impairment precluding the safe operation of the motor vehicle or delayed cognition and response time.

  1. At the time of the INCIDENT did YOU have any impairment of vision in either eye?

  2. If your answer to interrogatory number 1 was yes, please describe the impairment.

  3. Please set forth whether YOU wearing glasses or contact lenses at the time of the INCIDENT?

  4. If your answer to interrogatory number 3 was yes, please state whether the glasses or contact lens were tinted or colored.

  5. If your answer to interrogatory number 3 was yes, please state whether your glasses or contact lens were bifocal.

  6. Please IDENTIFY any health care provider who examined your eyesight within the last five years.

  7. Do YOU regularly wear glasses or contact lenses?

  8. If your answer to interrogatory number 7 was yes, please set forth whether the glasses or contact lens are tinted or colored.

  9. If your answer to interrogatory number 7 was yes, please IDENTIFY any health care provider who examined your eyesight within the last five years.

  10. Please state whether glasses have ever been prescribed for YOU.

  11. If your answer to interrogatory number 10 was yes, please IDENTIFY the health care provider who prescribed glasses for YOU.

  12. Are YOU color blind?

  13. Have YOU ever had a cataract in either eye?

  14. Are YOU blind in either eye?

  15. If your answer to interrogatory number 14 was yes, please state which eye.

  16. Are YOU now or have YOU ever had surgery performed on either eye?

  17. If your answer to interrogatory number 16 was yes, please IDENTIFY the doctor who performed the surgery.

  18. If your answer to interrogatory number 16 was yes, please set forth the nature of the surgery.

  19. At the time of this accident did YOU have any impairment to your hearing in either ear?

  20. If your answer to interrogatory number 19 was yes, please set forth which ear.

  21. If your answer to interrogatory number 19 was yes, please describe the impairment.

  22. If your answer to interrogatory number 19 was yes, please state whether YOU were wearing a hearing aid at the time of the INCIDENT.

  23. If your answer to interrogatory number 22 was yes, please IDENTIFY the health care provider who prescribed the hearing aid.

  24. Please state whether a hearing aid has ever been prescribed for YOU.

  25. If your answer to interrogatory number 24 was yes, please IDENTIFY the health care provider who prescribed the hearing aid.

  26. Are YOU now deaf in either ear?

  27. If your answer to interrogatory number 26 was yes, please set forth which ear.

  28. Have YOU ever had surgery performed on either ear?

  29. If your answer to interrogatory number 28 was yes, please IDENTIFY the doctor who performed the surgery.

  30. If your answer to interrogatory number 28 was yes, please set forth the date of the surgery.

  31. If your answer to interrogatory number 28 was yes, please set forth the nature of the surgery.

§421.11  Defendant’s Contentions re Roadway Details

The information required here may be helpful in formulating a theory of how the accident occurred, and may also indicate that the opposing vehicle was operated too fast for existing circumstances. Occasionally, roadway detail information may be used to substantiate a claim against a public entity owning, designing, or maintaining the roadway surface.

  1. Please state whether the roadway surface was wet at the time of the INCIDENT.

  2. Please state whether the roadway surface was slippery at the time of the INCIDENT.

  3. Please state whether the roadway surface was straight or curved the time of the INCIDENT.

  4. Please describe the composition of the roadway surface at the time of the INCIDENT.

§421.12  Defendant’s Contentions re Traffic Regulations, Traffic Lights and Stop Signs

  1. Please state whether the intersection where the INCIDENT occurred was controlled by traffic lights.

  2. If your answer to interrogatory number 1 was yes, please state the location of the traffic light(s).

  3. If your answer to interrogatory number 1 was yes, please set forth the color of the light immediately prior to the time YOU entered the intersection.

  4. If your answer to interrogatory number 1 was yes, please set forth the color of the light when YOU entered the intersection.

  5. If your answer to interrogatory number 1 was yes, please set forth the color of the traffic light immediately following the INCIDENT.

  6. Please state whether the intersection where the INCIDENT occurred was controlled by stop signs.

  7. If your answer to interrogatory number 6 was yes, please state the location of each stop sign.

  8. If your answer to interrogatory number 6 was yes, please state whether YOU came to a complete stop at the stop sign prior to entering the intersection.

  9. If your answer to interrogatory number 8 was yes, please state whether YOU looked to your left and right before entering into the intersection.

  10. Please state whether YOU observed plaintiff’s vehicle prior to the subject INCIDENT.

§421.13  Defendant’s Contentions re Fatigue

The existence of fatigue may contribute to inattentiveness, delayed cognition and decision making, and impaired reaction time. It is important to know whether the driver of the opposing vehicle was suffering from fatigue. These questions attempt to elicit that information. The question on the number of miles driven is included to elicit circumstantial evidence of fatigue.

  1. For the last time YOU slept prior to the INCIDENT, please set forth the time YOU went to sleep.

  2. For the last time YOU slept prior to the INCIDENT, set forth the time that YOU awoke.

  3. Please set forth the number of hours YOU had been awake prior to the INCIDENT.

  4. Please set forth how many miles YOU drove on the date of the INCIDENT.

  5. Please set forth how many miles YOU drove on the day before the INCIDENT.

  6. How many hours did YOU sleep in the 24 hours immediately preceding the INCIDENT?

§421.14          Alcohol and Drug Use by Defendant

These questions should be included in virtually every interrogatory set. The extent to which the use of alcohol and drugs contribute to motor vehicle accidents is widely known, and evidence of this consumption can reveal negligence in what otherwise appears to have been a chance event. In addition, the interrogatories identify witnesses to alcohol or drug consumption, and this may help direct future discovery.

  1. Please state whether YOU consumed any alcoholic beverage within 24 hours before the INCIDENT.

  2. If your answer to interrogatory number 1 was yes, please set forth the type of beverage consumed.

  3. If your answer to interrogatory number 1 was yes, please set forth the quantity consumed.

  4. If your answer to interrogatory number 1 was yes, please set forth the time the beverage was consumed.

  5. If your answer to interrogatory number 1 was yes, please set forth the place the beverage was consumed.

  6. If your answer to interrogatory number 1 was yes, please identify each PERSON who witnessed the consumption.

  7. Please state whether YOU took any medication within 48 hours before this incident.

  8. If your answer to the interrogatory number 7 was yes, please set forth the type of each medication YOU took.

  9. If your answer to interrogatory number 7 was yes, please further set forth the quantity of the medication YOU took.

  10. If your answer to interrogatory number 7 was yes, please further set forth the time you took the medication.

  11. If your answer to interrogatory number 7 was yes, please further set forth where YOU took the medication.

  12. If your answer to interrogatory number 7 was yes, please IDENTIFY each PERSON who witnessed YOU taking the medication.

§421.15  Defendant’s Driving Experience and License Status

Jurisdictions differ on whether a defendant’s failure to possess a valid operator’s license is admissible to establish negligence. The evidence may be discoverable for other reasons, however, as when a license revocation has occurred due to similar prior accidents. Further, a person’s driving experience is usually directly relevant to his or her ability to safely operate the vehicle. This section contains interrogatories directed to the party’s license status and driving experience.

  1. Please state whether YOU possessed a valid operator’s license at the time of the INCIDENT.

  2. If your answer to interrogatory number 1 was yes, please IDENTIFY the state that issued the license.

  3. If your answer to interrogatory number 1 was yes, please set forth all restrictions on the license.

  4. If your answer to interrogatory number 1 was yes, please set forth the date that the license was issued.

  5. If your answer to interrogatory number 1 was yes, please set forth the date of expiration of the license.

  6. Please state whether your driver’s license had ever been revoked prior to the INCIDENT.

  7. If your answer to interrogatory number 6 was yes, please IDENTIFY the state that revoked your license.

  8. If your answer to interrogatory number 6 was yes, please set forth the reason for each revocation.

  9. Please state whether your driver’s license had ever been suspended prior to the INCIDENT.

  10. If your answer to interrogatory number 9 was yes, please IDENTIFY the state that suspended your  license.

  11. If your answer to interrogatory number 9 was yes, please further set forth the reason for each suspension.

  12. Please state the year in which YOU first received an operator’s license.

  13. Please state whether anyone else signed the application for your driver’s license.

  14. If your answer to interrogatory number 13 was yes, please IDENTIFY each such PERSON.

  15. Please state whether YOU were familiar with the operating characteristics of the vehicle YOU were driving at the time of the INCIDENT.

  16. Please state the approximate number of miles YOU had driven your vehicle in the six months immediately preceding theINCIDENT.

  17. Please state whether YOU were familiar with the roadway where the INCIDENT occurred.

§421.16  Defendant Supplying Alcohol to Vehicle Driver

The interrogatories that follow may be used when the provision of alcohol to an offending driver is alleged as a causal factor in bringing about the incident. The laws pertaining to “dramshop” liability differ widely from state to state; liability generally depends on whether the provider is a licensed dispenser or a social host and whether the consumer is an adult or a minor. These interrogatories focus on the facts and circumstances surrounding the supplying of alcoholic beverages to a driver, and may be modified according to the parameters of dramshop liability in each state.

  1. Did YOU supply alcoholic beverages to __________ on the date of the INCIDENT?

  2. If your answer to interrogatory number 1 was yes, please further set forth the time of day that YOU supplied the alcoholic beverage.

  3. If your answer to interrogatory number 1 was yes, please set forth the type of alcoholic beverage YOU supplied.

  4. If your answer to interrogatory number 1 was yes, please set forth the the quantity of alcoholic beverage YOU supplied.

  5. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON that possesses knowledge of any fact relating to the provision of alcoholic beverages to __________.

  6. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to the provision of the alcoholic beverage to __________.

  7. If your answer to interrogatory number 1 was yes, please IDENTIFY the present CUSTODIAN of any WRITING relating to the provision of the alcoholic beverage.

  8. Did YOU sell any type of alcoholic beverage to __________ on the date of the INCIDENT?

  9. If your answer to interrogatory number 8 was yes, please set forth the time of day at which YOU sold the alcoholic beverage to _________.

  10. If your answer to interrogatory number 8 was yes, please set forth the type of alcoholic beverage sold.

  11. If your answer to interrogatory number 8 was yes, please set forth the quantity sold.

  12. If your answer to interrogatory number 8 was yes, please set forth whether YOU possessed a valid permit to engage in the sale of alcoholic beverages.

  13. If your answer to interrogatory number 12 was yes, please IDENTIFY the jurisdiction that issued the permit.

  14. If your answer to interrogatory number 8 was yes, IDENTIFY each PERSON who has knowledge of any fact relating to your sale of the alcoholic beverage to _________,

  15. If your answer to interrogatory number 8 was yes, please IDENTIFY each WRITING relating to your sale of the alcohol beverage to _________.

  16. Please IDENTIFY the present CUSTODIAN of any WRITING identified in your answer to interrogatory number 15.

  17. Please set forth what steps YOU took to ascertain the sobriety of __________ before YOU provided alcoholic beverages to _________.

  18. Please set forth what steps YOU took to ascertain whether __________ had attained the legal age of majority prior to the time YOU provided alcoholic beverages to _________.

  19. Please IDENTIFY each PERSON who has knowledge of any fact relating to the state of sobriety of __________ as of the time YOU provided alcoholic beverages to _________.

  20. Please IDENTIFY each PERSON who has knowledge of any fact relating to whether __________ had attained the legal age of majority as of the date that YOU provided alcoholic beverages to _________.

  21. Please IDENTIFY each WRITING relating to the provision of alcoholic beverages to _________.

  22. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 21.

  23. Do YOU contend that at the time YOU provided alcoholic beverages to __________, [he/she] was not intoxicated?*

  24. Do YOU contend that, on the date that YOU provided alcoholic beverages to _________, YOU were in any manner misled as to __________’s age?*


Kevin R. Culhane is a partner with a law firm of Hansen, Boyd, Culhane & Watson in Sacramento, California. His practice consists primarily of professional liability and appellate law. He has been faculty member at Hastings Centerfor Trial and Appellate Advocacy in San Francisco, and frequently lectures on discovery and trial matters for California’s Continuing Education of the Bar. Following a one-year term as Vice-President of the State Bar of California, Mr. Culhane was appointed to two successive terms as a member of the Judicial Council of California.  Mr. Culhane is the author of Model Interrogatories, from which this article is excerpted.

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