Well, that depends. In any other kind of personal injury case they would be liable if they’re at fault and they’re not liable if they’re not at fault. And if they’re partly at fault and you’re partly at fault or someone else is partly at fault, then there’s shared liability. So, if you’re doing everything correctly and let’s say you’re going across an intersection on a green light or you’re properly bicycling in some way and somebody makes a turn and hits you, then they would be liable for causing the accident. If, for example, you’re bicycling on the wrong side of the road and somebody pulling out of a driveway looks for oncoming traffic but doesn’t look and see you because you’re bicycling from the wrong direction, that person might not be liable to you for causing the accident, or at the very least you would bear a very large share of the liability.
And then there’s always the question with bicyclists about wearing a helmet. You’re not required by law to wear a helmet unless you’re a minor. Adults are not required under California law to wear a helmet. And yet if you suffer a head injury because you weren’t wearing a helmet, even though you might not be at fault for causing the accident, the other side’s gonna argue that you have a fair degree of comparative fault for not wearing a helmet, that even though there’s no law requiring it, you weren’t being careful for your own safety and thus any head injury that you might suffer that you could have avoided is something that the driver who caused the accident shouldn’t be responsible for. So I can’t give you a very simple yes or no answer to that question because, like in most cases where we have a personal injury claim, a lot of it depends on fault.
It makes all the difference in the world. If you are not at fault, or somebody else is at fault or mostly at fault and owes you compensation, and you don’t have an attorney, you don’t know what your rights are, and the insurance company is going to take advantage of that. They’re going to try to pay you as little as they can get away with, have you sign a release, and you’re out of their life forever. You can’t reopen that claim.
Let me give an example. You might have $5,000 in medical expenses, but you had health insurance and your health insurance paid, say, $4,500 of it, and you only had a $500 co-payment. The insurance company for the other side is going to try to tell you that you’re only entitled to that $500 that you’re out of pocket, but that’s false. You’re entitled to recover the entire $5,000 of your medical expenses. You might have missed only a few days from work, and therefore they’ll tell you they’ll just compensate you for those few days from work. But you might need to miss some time from work in the future because of the injury. They’re not going to tell you that they owe you for the time you’re going to miss in the future.
Or, you might say you didn’t really lose any money, even though you missed a few days, because you just used up your sick leave, or vacation leave, or your employer paid you anyway. The insurance company’s going to try to get away with not paying you for the time that you missed. But they do you owe you for the time that you missed. The fact that your employer paid you or you used up your sick leave, or your vacation leave, and didn’t actually miss the pay, is no excuse for the insurance company for the at-fault person to avoid paying you or compensating you for that loss of time. Additionally, you’re not going to know what your pain and suffering is worth. You’re not won’t know what pain and suffering consists of. The insurance company is not going to tell you. They’re going to offer you $500, or $1,000, or $2,500, or something far, far less than the full measure of your damages and try to get you to sign-off on it.
You need to talk to an attorney and have the attorney explain to you what you’re fully entitled to receive in the way of compensation for your past and future medical, income loss, and pain and suffering, general damages, for how it’s effected your family, and in some cases, for what your family might have had to go through, or your husband or wife might have had to go through as a result of your injuries. Don’t expect the insurance company that’s trying to avoid paying you any money to fill you in on those details or to tell you what your case is worth. You need to get the advice of an attorney. And if an attorney doesn’t feel that the case is big enough to merit hiring an attorney, he’ll tell you so or she’ll tell you so.
You will at least have the benefit of talking to somebody who knows what they’re talking about, who can educate you and tell you what you should expect and what you should receive, what you should know and what you need to avoid doing and what you need to do in order to protect your claim. Only an attorney can do that. Whether you end up hiring or not that attorney, you’ll be far better off just for having talked to him or her. So please, if you have a serious injury, don’t just settle with the insurance company. Talk to an attorney, find out what your rights are. And if you end up having a serious injury or a significant case, you’ll be far better off not trying to handle it yourself, but letting yourself be assisted by a competent attorney.
I’ll talk about the injury part. Obviously, there’s property damage, your clothes can get damaged, your bike could get damaged. That’s recoverable as well. Tthe most important usually is the personal injury. Personal injury damages a bike accident start out the same as in any personal injury claim. They are your special and your general damages, your past and future medical expenses, your past and prospective income loss or diminished earning capacity, and your pain and suffering. That’s all recoverable.
Causing the accident means they were at fault for causing the accident, but just because they’re at fault for causing the accident doesn’t necessarily mean you’re going to recover for all your injuries that were caused in the accident. For example, even if there’s no legal requirement that you wear a bicycle helmet, failure to wear one if you have a traumatic brain injury or some kind of a head injury that could have been reduced or eliminated had you been wearing a helmet, the other side will put up the argument that even though it’s not a legal requirement for you to be wearing a helmet, if you were a reasonable and prudent person careful for your own safety, you would have been wearing a helmet and your failure to wear a helmet is what caused that head injury or brain injury.
And then there’s going to be an argument as to whether the driver who caused the accident is going to be 100% responsible for compensating you for the medical expenses and income loss you experienced; forgetfulness, memory loss, headaches, drowsiness, difficulty sleeping, whatever it may be from that head injury, to the extent that it could have been prevented or reduced if you had been wearing a helmet. There’s just going to be an argument there. There’s no law that says you must be wearing a helmet unless you’re a minor in California, but the defense is always going to argue that you should have for your own safety and that they shouldn’t have to fully compensate you for the injury to the extent that you could have avoided it by being more careful for yourself.
Those are of course, the most difficult kinds of cases that can be presented. Difficult because they’re heart-rendering. The loss of a child is just something that is devastating. And it’s devastating and very difficult for the attorney to handle it because it’s impossible not to become emotionally involved. Now, in any wrongful death case, the next of kin, and in the case of a minor child, the next of kin are the parents, have a claim. It’s called Survivorship Acts, and they’re the survivors. What they’re entitled to recover is technically not compensation for their grief, but compensation for the loss of the companionship of the child that they would have otherwise experienced. And to the extent that that child would have provided some economic benefit to the parents, for example, maybe they were counting on that child to support them when they got older. If they can prove that, then they’re entitled to those economic damages.
As cold as it seems, to be deducted from what compensation the parents will receive is what it would’ve cost to maintain the child, had he or she not been killed. It would have cost money to feed the child, to house the child, to clothe the child, to educate the child until the child attained age 21 or 22, or maybe earned an advanced degree at age 26. That could have cost hundreds of thousands of dollars. And hard-hearted as it sounds, those hundreds of thousands of dollars are considered a savings that the parents receive because of the death of their child. They no longer have an obligation to pay for those expenses.
Whatever that amount might be gets deducted from whatever other calculation you give them for the pleasure they would have had watching their child grow up, sitting around the dinner table at Thanksgiving, the benefit of having that child celebrate the holidays with the family, the benefit of seeing that child get married and have children of his own or her own, and being able to enjoy and play with grandchildren. And you measure that over the number of years that the parent or parents are expected or reasonably expected to live. So, if you have a 50-year-old man who lost a 12-year-old child, that father might have a life expectancy of another 30 years. You don’t go by the child’s life expectancy, how long that child would have lived, but for the accident. You go by the parent. The father in this case, another 30 or 35 years, he gets compensated for what would have been over that 35 years.
What the non-economic benefit of having a child that he loved in his presence to play with, to teach, to do things with, to watch grow up, and to enjoy the companionship of, that gets measured in dollars and cents, as hard as that is to do. And then the funeral cost, which is maybe $5,000 or $10,000 gets added in there. But then deducted from that is the cost and expense that would have have been incurred by the surviving parent to raise that child to maturity, to adulthood, or beyond.
Many people think that they’re doing the right thing, or the safe thing, or the legal thing by riding in the direction of oncoming traffic. That’s not the rule, that’s not the law in California. In California, you must ride your bike on the side of the road in the same direction as vehicles drive in your direction of traffic.
Now, because you were on the wrong side of the road, does that mean that the other driver gets off scot-free? Maybe, maybe not. Was the other driver also negligent in creating or causing this accident? Was the driver doing everything right and being reasonably careful? For example, let’s say somebody’s pulling out of a driveway. They look to the right, they look to the left for pedestrians because obviously pedestrians can walk on either side of the road in either direction. If they’re looking to the right and they don’t see you because you were on a bike and were quite a distance away, they probably don’t have any reason to believe that you would be coming at them from the right. Having checked and not seen you and being reasonably careful in checking, if they then proceed to make a right hand turn and your bike then collides with the car as it’s pulling out, there would be very little if any liability I think on the part of the driver.
On the other hand, suppose you’re riding a bike the wrong side of the road and the other driver who’s coming up that road, coming in the direction facing you, is not paying attention. They’re on their cellphone or doing something else and they drift over into the bike lane where your bicycle is. The fact that you shouldn’t be there is kind of a minimal part of the fault here. You shouldn’t be on that side of the road, but the real fault lies with the driver who is not paying attention and who would have seen you had he been looking where he was going. In that situation, the driver would have most, if not all, of the liability for causing the collision.
Well, if the accident occurred on a public road, as most of them would in these cases, the claim would be against the public entity. And while this isn’t part of the question, you need to know that filing a claim against a public entity has a very different time constraint than filing a claim against a private person or private entity. You must comply with the requirements, which means you must file a claim in the state of California within six months. And then you must file it properly and with the right entity within six months of the date of the accident. And then you must go further, and within 45 days after filing that claim, you’re going to get a rejection, or you might get a rejection even sooner than that. From the date that you get that rejection or if they don’t reject, you have another 45 days. Then you must file a lawsuit within six more months.
So basically, you must file that lawsuit within about a year’s time from the date of the accident or within six months from the date that your claim has been rejected. Now, do you have a claim against the public entity? That’s not an easy one to present. Potholes are known to occur, and the county or the state or Caltrans isn’t out there always able to fix every one as soon as they occur. So, you must prove a lot of things. You must prove that the pothole was there for a long enough period, such that the state or the public entity should have known about it, and you must find out how diligent they are about having crews go out looking for potholes and repairing them. Sometimes the financial ability of the county, if it’s a county road, or the city, if it’s a city street, comes into play. If they financially can show that it would be a hardship on the community to be able to repair these things, they’re going to be cut some slack. Not every pothole is going to be a situation where you’re going to have a remedy.
If you can show that the governmental entity has not been diligent and had not acted appropriately and exercised appropriate control within its financial budgetary constraints to inspect and repair these kinds of problems, and if you can show that the pothole itself was a materially deficient or in defective condition, then you might have a claim. They’ ae going to argue that there may be some comparative fault on your part for not paying attention to where you’re going. If you had been looking where you were going, you might have seen it and have been able to avoid it. There are many factors that will come into play. Claims against governmental entities are always more difficult than against private entities or private individuals, and in this case, it just depends on the factors that I mentioned.
And what if it occurs on a private entity or a homeowner’s lot?
If it’s on a private driveway or something, then you go back to the basic rule of law is, “Did it exist for a long enough period such that the owner should have known about it or did know about it?” An owner ought to know about it since most potholes don’t develop instantly, and once they’re there, they’re there for a while and thus becomes a condition that the owner should be aware of.
If it’s a situation in an area where he knows or expects pedestrians or bicyclists will be riding or walking, then he has a duty to fix it. He has a duty to put up a warning sign and say, “Be aware” to tell you about it, or put up a barricade, or barrier of some kind to obstruct people from having to walk over it, or ride their bike into it. And failure to do that will be considered negligence. You have the negligence and you have the causation. It’s the landowner’s negligence that caused the problem to exist, or allowed it to continue to exist, and that’s what caused the accident, and therefore you were injured.
Well, if it’s a young child, the parents are legally responsible for supervising the child. So typically, it would be the parents of the child and you would hope that they have homeowner’s or renter’s insurance that would cover them. Theoretically, the idea is that if they aren’t watching the child, they aren’t being careful, so you might have a negligence claim.
Well, that’s a broad question. Let’s start with the driver of a car who hit you. If he was at fault, and I’m using “he,” I realize it could’ve been a woman, then you can recover from him or her or their insurance policy. If that driver was in the course and scope of employment, then you can recover from that person’s employer. If the person who caused the accident doesn’t have a sufficient amount of insurance or maybe wasn’t in the course and scope of employment, then you can always look to your own automobile policy, if you have one, or the automobile policy of any relative who lives in your house with you and try to collect from the uninsured motorist coverage or under-insured motorist coverage that is in that automobile policy.
One other place for people to look, even if you’re at fault in the accident, is if you have medical pay coverage on your auto policy. Medical pay coverage will frequently cover your medical expenses. It won’t compensate you for income loss or pain and suffering, but it will cover you for your medical expenses up to the limit that you purchase which can be anywhere from one, five, 10 and I’ve seen as high as $25,000 in some policies. So that’s one place that people don’t always think of where they can get compensation from their own policy without even getting into the issue of whether it was their fault or somebody else’s fault.