We’ve all been there.
We’re driving, and someone is following closely… a little too closely. There’s nothing like being tailgated to raise our blood pressure. The fact that the driver behind you is actually creating a dangerous situation—not to mention illegal in Florida– can also make the driver being tailgated feel a little, well, self-righteous.
And that driver might be tempted to slam on the brakes in hopes of scaring the tailgater and causing them to back off.
But that’s a bad idea. In fact, make that a very bad idea.
Because while Florida Statute 316.0895, regarding “Following too closely,”
specifically says that:
(1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway.
The statute also says a violation of this law is a “noncriminal traffic infraction, punishable as a moving violation…”
Whereas if you slam on your brakes to the back of a tailgater, you might find yourself subject to both civil and criminal assault charges. What’s more—if you should become injured in an accident caused by your braking action, you may be blocked from making an injury recover.
Let’s consider for a moment how ‘brake-checking’ could be viewed in the eyes of the law:
- Was it intentional?
- Was it threatening?
- Could it create fear in the other person?
If you agree that all the above is true, then look at Florida statute 704.011 below:
An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such
violence is imminent.
Assault? Yes, assault.
It might be easy to think all you were trying to do is to get the car behind you to stop tailgating. But how is this being accomplished? You are intentionally hitting the brakes in order to threaten the other driver with the fear of a crash.
Now, what if your brake-checking actually does cause an accident when the car behind you rear-ends you. You could be charged if the brake-check is witnessed, and you could also be sued by the driver of the second car in a civil complaint. So you could become involved in a lawsuit. This is true even if you were the one rear-ended—after being tailgated.
Florida is a Comparative Negligence state, along with most others. This means the percentage of negligence or responsibility for an accident is assigned to each party involved. In other words, if you received a judgment for $100,000 in damages, but because your ‘brake-checking’ was found to contribute 60% to the accident, you would find your recovery reduced by that percentage: $100,000 less 60% ($60,000) = $40,000, or 40%. If you were found solely responsible, then you would receive no damages.
Tailgaters are annoying. But the best course may well be to continue to drive at your own safe speed, or even slow down and let them around you. It’s safer for you, and safer for everyone.
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