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It is common knowledge that after a car accident (presumably other types too), one shouldn't say they are sorry to the other person. While probably intended as an expression of empathy, the claim is that it can be taken as admission of fault and establish liability.

Is this just an urban legend or rational legal advice based on laws or precedent?

I can add some citations if needed, but I've found this to be a very commonly held belief amongst Americans and Europeans that I've heard independently expressed dozens of times.

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    You'll need to add citations for this to be considered a notable claim. – GGMG Jan 18 '18 at 16:33
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    @GGMG, I don't know about car accidents, but it's sufficiently well-known for in-hospital deaths that Washington State passed a law declaring that condolences expressed by hospital staff are not considered an admission of fault in malpractice suits. – Mark Jan 19 '18 at 4:37
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    This might have diffrent answers based on location. In Belgium, even admitting fault isn't a legal admission of fault. Only what gets written down on the accident form or what you tell the police during the after accident interview. – Andy Jan 19 '18 at 7:29
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    It is common knowledge ... where? I never heard about it – edc65 Jan 19 '18 at 7:45
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    If you search for "saying sorry after car accident" you will find multiple pages of results (mostly law firms?) telling you to never say sorry after a car accident. I agree with OP that it is a widely held belief. – stannius Jan 19 '18 at 9:13
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I focused on the US for this answer. An apology does not automatically lead to the party being found guilty:

  • The apology may not be admissible in court (but the laws are complicated, as usual).
  • When it is admissible, the judge or jury will be deciding if anyone is guilty or not. In many cases, an apology is not seen as strong enough evidence on its own.
  • A sincere apology can convince people not to press charges in the first place.

The paper Does 'Sorry' Incriminate? Evidence, Harm and the Protection of Apology explains about the laws:

[A] growing number of states have sought to encourage apologies by explicitly denying their admissibility as evidence; the current wave of apology legislation, which has already swept through thirty-seven states and inspired similar versions in Canada and Australia, was reportedly set off in part by a single person’s adverse experience.

Yes, Australia and (of course!) Canada have apology laws too. But let's get back to the paper:

Indeed, the dozens of state “apology laws” passed in the last two decades were drafted in part to encourage apologies by expressly denying, in a highly publicized way, the admissibility of these apologies to prove liability. Their motivation, in other words, is in part psychological: legislators meant the new measures to cause injurers to feel freer to apologize to their victims. For that reason the statutes should not be read as necessarily adding substantively to existing evidence law. Some clearly do, protecting even factually incriminating apologies in certain contexts, as we will see. Many, however, deny admissibility only to statements that were arguably inadmissible already. Even without the legislative protection, for example, a defendant could exclude certain apologetic statements, such as “I’m sorry you’re in pain,” by showing that the remark admits no point confirming or undermining a party’s position at trial, which would disqualify it as an “admission” under the exceptions to the hearsay rule. Alternatively, he might show that the prejudicial impact of admitting a statement, such as “I’m sick about what I did to you. It was horrible!,” substantially outweighs its probative value and therefore warrants exclusion under Rule 403 of the Federal Rules of Evidence and analogous state rules. Many of the legislative measures arguably add nothing to these grounds for exclusion.

The paper Legal Consequences of Apologizing is an older paper (1996), but it still gives some valuable insight. It "illustrates that judges and juries understand that expression of sympathy, regret, remorse and apology are not necessarily admissions of responsibility or liability". Two particularly relevant cases that it brings up, where just an apology was not enough to win the case, are as follows:

Apology for Serious Mistake During Surgery Did Not Establish any Element of a Malpractice Claim.

In its 1982 decision in Senesac v. Associates in Obstetrics and Gynecology, the Supreme Court of Vermont held that a doctor's admission of a mistake did not automatically prove the doctor departed from the appropriate standards of medical care. In June of 1973, defendant Mary Jane Gray, M.D., performed a therapeutic abortion upon plaintiff Mary Senesac. During the procedure, Gray perforated Senesac's uterus and had to perform an emergency hysterectomy. Gray allegedly apologized to Senesac shortly after the operation, saying that she had "made a mistake, that she was sorry, and that [this] had never happened before."

At trial, Senesac introduced no expert medical testimony to show that Gray departed from the standard of care ordinarily exercised by the average reasonably skillful gynecologist. She attempted to satisfy this element of the tort with the admission of mistake and the apology. The trial court ordered a directed verdict in favor of the defendant. Senesac appealed the granting of the motion for a directed verdict.

On appeal, Senesac argued that the directed verdict was improper because the jury could reasonably have concluded from Gray's statement that she had admitted negligence. The Supreme Court of Vermont, in reviewing the directed verdict, assumed, without deciding, that the apology had actually occurred. The court acknowledged that it is possible for a plaintiff to win without expert medical testimony when the defendant's own testimony establishes the standard of care and subsequent departure. However, they affirmed the directed verdict because Gray's statement did not establish a departure from the standards of care and skill ordinarily exercised by physicians in similar cases." The court saw this statement as simply being the physician's belief and expression of the belief that her performance was not in accordance with her own personal standards of care and skill." This statement, without additional expert medical evidence, was not enough to establish the second element of the tort.

This case appears to say that plaintiffs, supposedly armed with an apology, must prove their cases just as if the apology did not exist. A mere apology does not prove any of the elements of the case because evidence about particular medical facts or events is still missing from the plaintiff's case. Since a mere apology pertains to a doctor's self-image and feelings, it is not evidence of any particular medical fact or event. This leaves the plaintiff legally in the same position as one who did not receive an apology.

Apology for the Inadequate Outcome of a Medical Procedure was Not an Admission of Liability

In Phinney v. Vinson, defendant Robert Vinson, M.D., performed a transurethral resection of the prostrate upon plaintiff Robert Phinney. After the operation, recurring pain caused the plaintiff to go to another doctor. The second doctor allegedly told Dr. Vinson that he had performed an "inadequate resection," and the first doctor allegedly apologized to the plaintiff "for his failure to [perform an adequate resection]. Plaintiff sued and the trial court granted defendant's motion for summary judgment.

On appeal, Phinney argued that the apology, without more, was sufficient evidence of liability to allow the case to go to trial. Plaintiff relied on a few cases in which statements by the defendant were used to establish liability. The Supreme Court of Vermont affirmed, however, and distinguished an apology from a clear admission of liability. The cases plaintiff relied upon were clear admissions of liability, such as the defendant admitting an injury was caused by "negligence" and defendant stating that injuries would have been avoided "if he had checked on [plaintiff] as he should."

The lesson Phinney teaches is how difficult it is for a plaintiff to win based on an apology alone. It appears safe for a practitioner to apologize for an inadequate outcome or result, as long as there is no admission that the inadequate outcome was caused by the practioner's negligence. It appears that there is an understanding that the result of an operation is not guaranteed, not every operation will be successful, and an apology for the inadequacy of an operation does not mean the doctor is liable for negligence. This is a practical precedent in that it allows a doctor to express sympathy or empathy, without fear of reprisal, when the result of a procedure is not as good as was hoped for. Such expressions usually help heal the feelings and relationships of all persons involved.

It seems that an admission of negligence by doctors to their patients can get doctors into trouble. Where there is no actual negligence (something patients can hardly determine), doctors should be careful in choosing their words. When apologizing, expressing sympathy or delivering bad news, words should be chosen to convey sympathy and empathy in a way that cannot be misconstrued as an admission of negligence or fault.

  • The Australia link appears to be a proposal to reform the current law. This is possibly a better link. – Sparhawk Jan 20 '18 at 23:04
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    Your answer would be even better if you could summarize it. The last excerpt is really long. – Ian Jan 22 '18 at 7:42
  • @Ian - Long, but very informative. Would be useful if information about other states that have similar decisions could be added, but it seems clear at least in Vermont that you're OK to apologise ... carefully. – Jules Jan 22 '18 at 17:00
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At least in Canada, no.

Canada actually has an "Apology Act" that essentially says that you can apologize for something and that apology is not to be considered a confession, admission of fault/guilt.

Apology Act, 2009

S.O. 2009, CHAPTER 3

Consolidation Period: From April 23, 2009 to the e-Laws currency date.

No Amendments.

Definition

  1. In this Act,

“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate. 2009, c. 3, s. 1.

Effect of apology on liability

  1. (1) An apology made by or on behalf of a person in connection with any matter,

(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

(c) shall not be taken into account in any determination of fault or liability in connection with that matter. 2009, c. 3, s. 2 (1).

There are, of course, some exceptions. You can read the act here.

Edit: This law also applies in British Colombia. See the similar Act here.

According to, MillerThomson Lawfirm, as of Nov. 2009:

To date, seven Canadian provinces have adopted legislation of this sort. British Columbia passed the first Canadian Apology Act in 2006. Saskatchewan adopted similar legislation in its Evidence Amendment Act, 2007. Alberta followed with an amendment to its Evidence Act in 2008. Other provinces that have adopted similar legislation to date are Manitoba, Newfoundland and Nova Scotia.

It is important to be aware however that the Acts only provide immunity from civil liability. They do not apply to criminal proceedings or Provincial Offences Act matters

And for further reading, The University of Victoria has a draft paper entitled "Legal Consequences of Apologies in Canada"

(Shamelessly copied and updated from my answer at the related law SO thread. Sorry).

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    Re: "whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate" that puts the Canadian law in the minority that offer full protection, unlike most US state laws. – Fizz Jan 21 '18 at 10:36
  • Well yeah. It's Canada! You guys are SUPER polite. – Grinn Jan 22 '18 at 20:16
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The US state laws are a bit more complicated; the Helmreich paper cited by Laurel points out that in the majority of states these laws offer only partial protection for sympathy-type apologies, but not for express admissions of guilt (in the form of an apology). As example (from the paper) in the former category is “I’m sorry that your car was damaged” whereas for the latter “I’m sorry you were hurt, I was using my cell phone and just didn’t see you coming” The distinction is illustrated with plenty more examples (both in terms of laws and utterances), so I'll let the paper speak for itself.

Most of the apology laws do not go all the way to denying the admissibility of apologies, per se, as they preserve the admissibility of apologies that admit fault. Instead, they explicitly protect only “partial” apologies. A partial apology is one that excludes what are thought to be essential features of apologies, such as expressions of regret or remorse. For example, saying “I’m sorry about what happened to you” does not express the speaker’s regret over her own causal role in the event. Of the laws that protect partial apologies, some specify outright that they deny protection to “admissions of fault,” while others simply describe the apologies they protect in such terms as to make clear they could not involve statements admitting fault. Typical of the former group is Florida’s statute:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.

Typical of the latter group is Iowa’s exception:

In any civil action for professional negligence, personal injury, or wrongful death or in any arbitration proceeding for professional negligence, personal injury, or wrongful death against a person . . . that portion of a statement affirmation, gesture, or conduct expressing sorrow, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that was made by the person to the plaintiff, relative of the plaintiff, or decision maker for the plaintiff that relates to the discomfort, pain, suffering, injury, or death of the plaintiff as a result of an alleged breach of the applicable standard of care is inadmissible as evidence.

Notice that on either formulation, an apology is protected as long as it amounts to an expression of good will, such as sympathy, benevolence or compassion toward the victim, implying nothing about the apologizer’s role in the injury. This is reflected in the historical notes to the California statute, which is almost identical to Florida’s, illustrating how to distinguish between protected and unprotected apologies. A protected “expression of sympathy or benevolence” would be a driver’s remark, addressed to someone whose car she rammed in an accident: “I’m sorry you were hurt” or “I’m sorry that your car was damaged.” Under California’s apology law (and those of most other states), these statements would be protected, inadmissible as evidence of liability. On the other hand, the statement, “I’m sorry you were hurt, the accident was all my fault,” or “I’m sorry you were hurt, I was using my cell phone and just didn’t see you coming,” are partly admissible. The portions of the statements containing the apology (“I’m sorry you were hurt”) would be inadmissible; any other expression acknowledging or implying fault (“I was using my cell phone” or “[it] was all my fault”) would continue to be admissible, as the advisory notes put it, “consistent with present evidentiary standards.”

The full-protection laws are pretty rare in the US, according to the paper

In contrast, some apology laws protect all apologies, provided they occur in certain contexts, and primarily that they be uttered by a health care professional to a patient. For example, Arizona’s statute provides:

In any civil action that is brought against a health care provider . . . any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, [or] a relative of the patient . . . and relates to the discomfort, pain, suffering, injury or death of the patient as the result of an unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Other statutes in this category do not explicitly protect admissions of liability per se, but grant protection to admissions of fault, or blanketly to any explanation of how an injury occurred, provided it is offered in good faith, even where the explanation amounts to an admission of an error. As noted above, the “apology laws” that employ such broad protection are distinctly in the minority. The decisive majority protect only apologies that express nothing critical or incriminating about the apologizer. In this they reflect two competing interests: encouraging apologies and preserving a plaintiff’s right to utilize probative evidence of liability. Consider, for example, a medical injury after which a doctor says “I’m so sorry I delegated part of the surgery to someone I now realize was not really up to the job.” Most state apology laws would offer no protection to such a statement, except perhaps not counting the “sorry” as a further admission in its own right. One reason is that the doctor’s remarks factually confirm behavior that could contribute to negligence, and there is scarcely better evidence of liability than expert admissions by the liable party. A doctor is considered an expert as to the standard of care and an authority on her own behavior. The state measures reflect an understandable interest in preserving such statements as proof of liability. Yet they also seem aimed at harnessing at least some of the apparent power of apologetic statements to heal grievances and resolve disputes. Admitting expressions of sympathy and benevolence, such as “I feel so sorry about what you suffered,” for example, seems to serve this balance, inasmuch as it involves elements of apology (“I’m sorry”), but lacks anything that could constitute a probative admission of liability. The majority of states that passed apology laws appear, then, to have found a compromise between the two competing aims.

(bold emphasis mine)

I found a list of the 36 US states with apology laws, and after crosss checking I've only lived in those; all the US car insurance contracts I've seen (all of which were thus in applogy-laws states) only said not to admit guilt at the place of accident, but did not mention not saying sorry. I'm curious if someone who has had insurance in one of the other states has a different experience in this respect (insurance contracts suggestion)...

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    I'm convinced that the incriminating part of your example is "I was using my cell phone and just didn’t see you coming", not the apology. – Dmitry Grigoryev Jan 22 '18 at 11:39
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Since you mentioned Europe: at least in the EU you are to fill in an accident form (which is similar between countries but there isn't a fixed format) and at least in France this document does not discusses at all who was guilty and who wasn't.

It is just a write-up of facts and the insurances will then handle it between themselves. What you are saying at the accident scene is irrelevant (except if there is police involved, and they will be if there are corporal damages).

  • In EU, accident forms are somewhat standardized nowadays. It doesn't consider guilt in any EU country I know of. – Mast Jan 21 '18 at 19:24
  • Yes, they are "somewhat the same, but there is no standard. The link I provided (in French) is an official one from the gouvernement and it states that there is no standard even in France and that it is up to the insurance companies to craft what they like. From experience, they all look alike, though. – WoJ Jan 21 '18 at 19:31
  • Odd, in the Netherlands everyone uses the European Accident Report. As far as I know, the rest of EU uses the same thing, each in their own language. Yes, it can look somewhat different at times. But it always has exactly the same content. – Mast Jan 21 '18 at 19:48
  • Never heard of European Accident Report form when I was driving in the UK (which is currently still part of the EU). I didn't fill in such a form when I had an accident in Germany two years ago. – Martin Bonner Jan 22 '18 at 11:08
  • @Mast: I updated my answer with the most generic link on these forms I could find: europa.eu/youreurope/citizens/vehicles/insurance/accident/…. It looks like they are similar between countries (I had a look at the French, Italian, Belgian, Polish and UK one. Could not find for Germany). they look the same, there are some differences in details (I notices a bank account number for UK for instance) – WoJ Jan 22 '18 at 11:23

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