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If Someone Brake Checks You and an Accident Occurs, Who Is at Fault?

Feb 8, 2021 | Auto Accident


In Indiana, rear-end collisions are most often the fault of the rear driver. All drivers are expected to exercise appropriate precautions, such as creating plenty of space between themselves and the vehicle in front of them.

On the other hand, in some cases, someone guilty of brake checking can be partially at fault or fully liable (in rare cases) if their brake checking was the main contributor to the collision. Even in those cases, however, the driver is more likely to deny any wrongdoing and simply say they braked suddenly. Unless it can be proven that the driver brake checked and caused the accident, the rear driver is most likely going to be held responsible. Even in instances of brake checking, tailgating is often considered the greater offense. 

That being said, if you were involved in an accident in which the driver in front unfairly brake checked you, you should speak with a car accident attorney right away. They will be able to help you prove the other driver’s reckless behavior. At the very least, they’ll help make sure the other driver carries some of the liability.

What Exactly Constitutes “Brake Checking”?

Technically, brake checking is illegal. It is the intentional act of forcing drivers behind you to either brake suddenly or swerve to avoid a collision. It is always dangerous, and drivers who feel they are being tailgated should opt instead to get out of the way of the tailgating driver behind them.

Indiana Is a Modified Comparative Negligence State

In the state of Indiana, if more than one driver is found to be at fault for the accident, then each driver is assigned a percentage of liability for their negligence. For example, one driver’s negligence made them 20% liable in an accident, while the other driver’s greater negligence made them 80% liable.

Comparative negligence can affect an individual’s insurance premium. It can also affect the outcome of a personal injury lawsuit. For example, a driver must be deemed less than 51% at fault for the incident to file an injury claim. If an individual does win a personal injury lawsuit but is partially responsible, they will only be awarded a percentage of damages based on the level of negligence of the other driver.

If you were faulted for an accident because you rear-ended a driver that brake checked you, you can seek damages based on comparative negligence with the help of an experienced car accident attorney.

Aggressive Brake Checking

If it can be proven that the other driver brake checked you and was clearly aggressive, they can be faulted for the collision. Further, if you or someone you love was injured as a result of another driver’s brake checking, you may be eligible for compensation in a personal injury lawsuit.

Bear in mind that you must be able to prove that the other driver was at least 50% responsible for the accident as a result of their aggressive driving. An experienced attorney can help you prove this.

Selecting the Right Representation in a Brake Checking Collision Case

In a collision case where the other driver aggressively brake checked your vehicle, a strong car accident attorney can help you prove the other driver’s dangerous behavior. It will be extremely difficult for you to prove that the other driver was 100% at fault (though not impossible). However, you may be able to prove the other driver was primarily at fault for the accident as a result of their reckless driving.

For more information about how an Indiana attorney can help you with your car accident case, contact Stewart & Stewart at 800-333-3529 or visit our website.


Brake Checking Frequently Asked Questions

Who is at fault in a brake check?

Unlike most rear-end accidents, the driver who performed the brake check will be found at fault for any accidents that result. The other driver may share some fault if they failed to give adequate space between them and the vehicle in front. The tricky part is proving that the driver in front performed a brake check, and that this brake check caused the accident. In these cases, an inexpensive dash cam can be the difference between an insurance payout or a bill.

What is the point of brake checking?

Most brake checks are a result of road rage, and are often seen as a way to get back at the other driver. However, some brake check incidents are an attempt to commit insurance fraud.

When should you brake check?

You should never brake check another vehicle. Not only can you be found at fault for any damages that occur, but you could also cause injury or death if an accident occurs at highway speeds.

Is it always my fault if I rear ended someone?

No. While in most cases the rear driver in a rear-end collision is at fault, there are exceptions. For example, if the lead vehicle performs an illegal brake check, they would be found at fault for the collision.

What happens when someone slams on their brakes?

When you slam on your brakes, you place a significant load on your braking system. This can increase wear and potentially cause a component to brake. More importantly, when you slam on your brakes it can be hard for the vehicles behind you to respond, increasing the chances of an accident. Its best to avoid slamming on your brakes when possible.

Is tailgating illegal?

Yes, in most states tailgating is illegal. In Indiana, drivers who tailgate can face a fine of up to $500 dollars. If they are acting aggressive and attempting to intimidate other drivers they may even be guilty of “aggressive driving”, which may be punished by up to 1 year in prison and up to $5000 in fines.

What would cause someone to be charged with aggressive driving?

If you perform three or more of the following actions, you may be charged with aggressive driving in Indiana. 

Getting too close to the lead vehicle

Operating your vehicle in an unsafe manner

Driving off the roadway to overtake a vehicle on the right

Slowing or stopping your vehicle in an unsafe manner

Unnecessary use of horn

Failure to yield

Failure to obey traffic lights & signs


Repeated flashing of lights

How do you stop a tailgater?

The best way to stop a tailgater is to stop looking in your mirror and focus on the road in front of you. If the driver is being persistent, it may be best to change lanes and slow down. Taking an aggressive action to prevent the person from tailgating you can often make the situation worse, as well as putting you and your passengers at risk.

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