Is Brake Checking Legal?

Brake checking is when a driver abruptly and intentionally applies their brakes, often without any reason, with the intent of causing the following vehicle to collide with them, or more likely, put them in fear of colliding with them.  Brake checking is both illegal and stupid and can lead to rear-end collisions, property damage, injuries, and even fatalities.

The other rise with brake checking is that it is arguably intentional in most cases, not negligent.  So your car insurance can disclaim coverage because it is an intentional act, leaving the brake checker on the hook for all of the property damages and injuries in the crash.

What Is Break Checking?

Break checking is when a driver unnecessarily slams on their brakes very suddenly with the specific intention of forcing the driver behind them to stop suddenly in response. The key element that defines break-checking is intent. If you break with the specific intent of forcing the car behind you to respond, that would be considered break-checking.

Intent can be inferred if you suddenly break for no obvious or apparent reason and from the circumstances. In other words, if you are exchanging unpleasant gestures with a driver behind you and then you slam on your breaks when there is nothing in front of you to warrant breaking, your intent can be assumed.


How Does Brake Checking Happen?

A brake check is a subset of road rage. When a driver is angry at another driver, usually for following too closely, the driver hits her brakes as a means of control over the person behind them.  If it is someone following too closely, we call it tailgating.  Tailgating, another illegal driving practice, involves a driver following another vehicle too closely, leaving inadequate space for safe braking. This can lead to severe rear-end collisions, especially if the front driver brake checks, halts abruptly, or changes lanes unexpectedly. This is against the law.  Maryland Code, Transportation Article, Section 21-310, is a Maryland statute that requires drivers to maintain a distance that is “reasonable and prudent.”

Break checking in response to tailgating is worse.  Because the purpose of brake checking is to make the other driver fear hitting you.  How do you best do that?  By cutting it close to a collision.  This leaves little margin for misjudgment and error.

Brake Checking and Contributory Negligence

In a brake checking and tailgating scenario in Maryland, the principle of contributory negligence can significantly influence the outcome of a potential lawsuit.

In such a case, the driver who was tailgating could be considered partially at fault for following too closely, not leaving enough safe distance to react to sudden stops. Tailgating is considered a form of negligent driving behavior because it does not allow for an adequate stopping distance.

On the other hand, the driver who performed the brake check could also be considered partially at fault. Brake checking, which involves intentionally slamming on the brakes to cause a reaction from the vehicle behind, can be seen as an aggressive and dangerous driving maneuver.

Under Maryland’s strict contributory negligence laws, if both drivers are found to be even slightly at fault (1% or more), they might be barred from recovering damages from each other. This is because each driver contributed to the conditions leading to the accident.

However, it’s essential to note that these situations can be complex and unique, and the determination of fault can depend on various factors, including evidence, witness statements, and the specific circumstances of the case. Therefore, it is usually beneficial to consult with a knowledgeable attorney in these matters.

Break Checks for Cash

Most incidents of break-checking occur spontaneously in connection with a road rage encounter or “battle” between two drivers. But in a minority of cases, it can be for insurance fraud to cause an accident and claim damages. There have been fraud schemes in which drivers will target large tractor-trailer trucks and deliberately break checks to cause the truck to hit them from behind. The motive behind this scheme is to collect money by filing an accident claim and getting a settlement from the truck’s insurance company. Big trucks are usually the target because they have big insurance policies and can’t stop quickly.

Why Tailgating and Brake Checking Cases Are Hard to Prove

Proving a brake checking or tailgating case can be challenging due to several factors:

  1. Lack of Evidence: It can be difficult to provide tangible evidence that a driver was brake checking or tailgating. Unless there is clear video footage or reliable eyewitness testimony, it can be hard to prove beyond a reasonable doubt that these actions occurred.
  2. He Said, She Said Situation: In many cases, it becomes one driver’s word against the other’s. Both drivers could present different versions of the event, making it challenging to establish the truth.
  3. Absence of Physical Evidence: Unlike some other types of accidents, brake-checking or tailgating incidents may not leave behind physical evidence that can conclusively establish what occurred.
  4. Legal Complexity: Legally, these cases can be complex. In some instances, both drivers might share some degree of fault – one for tailgating and the other for brake checking. This can complicate matters, especially in states that follow contributory negligence rules, like Maryland.
  5. Determination of Intent: Brake checking involves an element of intent – the driver intentionally brakes to cause a reaction in the tailgater. Proving this intent can be difficult as it involves understanding the mindset of the accused at the time of the incident.

How Can Break-Checking Impact Liability for an Accident

If someone engages in break-checking, it can easily cause a rear-end collision with the vehicle behind. The question is who is liable for the accident. In most cases, the driver in the back is always liable for a rear-end collision. However, brake checking could present one potential scenario in which the rear driver can argue that they are not liable when they hit another vehicle from behind. Of course, to avoid liability you would need to be able to prove that the other driver was break-checking and caused the accident.

Even if you can prove that the driver in front engaged in break-checking (or if the driver in front is super honest and admits to it) that does not necessarily mean you will get off the hook for the accident. Most cases of break-checking occur because the car in the back is tailgating (following too closely) the car in the front. Break-checking is illegal, but tailgating is also illegal. In this scenario, determining who is at fault for the accident can be a tricky issue.

Assuming both drivers either admit or can prove the break-checking and tailgating, then the question of liability would come down to which traffic violation was the actual cause. The car in front will argue that tailgating was the cause of the accident. The driver in the back will argue that it was the break-checking.

Insurance Companies Can Deny Coverage for Break-Checking

Usually, when you are involved in a car accident, your insurance company will cover the damages when you are at fault. However, most auto insurance policies have specific clauses that permit the insurance company to deny coverage if the accident was caused by the insured’s “intentional conduct.” Break-checking is, by definition, intentional conduct. Intent is the key element that defines break-checking.

This means that if you admit to break-checking or it can be definitely proven, your insurance company could potentially disclaim your liability coverage for the accident and leave you with no insurance. This doesn’t happen very often, mostly because drivers never really admit to brake-checking, and proving that break-checking occurred is exceedingly difficult.

Example Brake Checking Lawsuit

In Orcetti v. Doe, a driver who recklessly approached the plaintiff’s vehicle from behind. The defendant exhibited dangerous driving behavior, weaving in and out of traffic and cutting off the plaintiff’s vehicle by a mere two feet. Suddenly, the defendant driver, traveling at full highway speed, slammed on the brakes, resulting in a collision that caused the plaintiff’s vehicle to slide and overturn on the median.

The accident resulted in significant property damage, and the plaintiff sustained a broken collarbone. Following the crash, the plaintiff was promptly taken to the emergency room, where his shoulder was immobilized using a sling. Over the course of approximately eight weeks, the fractured bone mostly healed. However, even two years after the collision, the plaintiff continued to experience recurring shoulder pain on several occasions each month. The plaintiff’s car accident lawyer used a trick of ours and opted not to present medical expenses totaling around $1,700 as evidence during the proceedings. Why? The bills were so low it made the case seem small.

The plaintiff sought both compensatory and punitive damages, successfully arguing that the defendant’s conduct, which involved deliberate “brake checking,” amounted to willful and wanton behavior. This argument withstood various legal challenges, including demurrer, a motion in limine, and a motion to strike.

After deliberating for approximately an hour, the jury rendered its verdict. The plaintiff was awarded $80,000 in compensatory damages and an additional $170,000 in punitive damages.

Is Brake Checking Stupid?

I’m glad you asked this question before you left.  Brake checking is stupid.  That jury above was right to award punitive damages.  Yes, break-checking is tempting when you are mad.  But that does not make it any less stupid. Here is why it is so foolish and why break checking is illegal:

  1. Safety Risks: Brake checking can result in rear-end collisions, which are among the most common types of accidents on the road. These accidents can lead to significant injuries and property damage, not only for the vehicles involved but also for any passengers or pedestrians in the vicinity. You are basically putting yourself at risk to make a point.  Unwise folks.
  2. Aggressive Driving: Brake checking is a form of aggressive driving. Engaging in such behavior not only endangers others but also contributes to a hostile and stressful driving environment.
  3. Legal Consequences: Again, in many jurisdictions, brake checking is illegal. (I say most… I don’t know of anywhere break checking is not illegal.)  It can result in traffic citations, fines, and even criminal charges, depending on the circumstances and the laws of the specific area. Penalties may vary, but they are generally meant to deter such dangerous behavior.
  4. Insurance Consequences: If you engage in brake checking, it may impact your insurance coverage. Insurance companies often view aggressive driving behaviors as indicators of increased risk, potentially leading to higher premiums or policy cancellations.
  5. Road Rage Escalation: Brake checking can escalate road rage incidents. The driver who is the target of brake checking may respond aggressively, leading to further dangerous behaviors and confrontations on the road. We all get mad on the road.  It can escalate in ways that are just awful.