Monday, January 18, 2010

Motorists May Be Held Liable for Near Misses With Bicyclists

To horseshoes and hand grenades I would add bicycling in traffic to the list of activities in which close may be enough to do damage. While riding a bike, coming close to physical contact with a vehicle, i.e. a car door, may be enough to cause a crash and serious injury. Lack of physical contact with the vehicle will not preclude the bicyclist from receiving compensation for his or her injuries. Imagine lawfully riding along the right side of the roadway at an intersection when a vehicle suddenly turns in front of you, the driver failing to signal or look for bikes. In the course of taking evasive action you avoid the car but lose control of your bike and crash, suffering injuries. You subsequently make a claim against the driver, but his insurance company denies liability and refuses to compensate you because the vehicle never actually touched you. Now what?

File a lawsuit.

A motor vehicle need not come into physical contact with a bicyclist for the driver's conduct to give rise to liability. Rather, if the motorist's negligent conduct caused the bicyclist to sustain injury then the driver should be held liable. A few weeks ago I successfully resolved a case involving a near miss that caused serious injury to a pedestrian. At the time of the accident my client was walking within a crosswalk in the parking lot of a strip mall. She had just exited a store and was going to her car. As she did she noticed a car to her left come whipping out of an aisle of parked cars directly at her at a fairly high rate of speed. She could see through the car's windshield that the driver was looking down. She shouted toward the driver. When she did, the driver looked up suddenly and the car surged forward at an even greater velocity. It seemed that the motorist had depressed the accelerator rather than the brake. Fearful that she was about to be creamed, the pedestrian jumped backwards. Unfortunately she landed awkwardly on her tailbone and suffered a back fracture. The motorist's insurance company initially took the position that the driver should not be held liable because there was no physical contact made between the vehicle and the pedestrian. However, we were able to demonstrate that (1) the driver was negligent for traveling too fast in a parking lot and for not paying attention to where she was going. We also demonstrated that (2) our client, the pedestrian, was reasonable in fearing for her safety and that her injury was solely due to the defendant driver's negligent operation of her vehicle. As a result we resolved the case favorably for our client. Had our client been riding a bicycle rather than walking our analysis and approach would have been the same. If a motorist's negligent operation of his or her vehicle causes a bicyclist to sustain injury while taking evasive action then that driver will be liable for the cyclist's harms and losses. Another way to think about it is to ask; but for the driver's bad conduct would the bicyclist have been injured? If the answer is in the negative, then the motorist is liable.

1 comment:

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