Articles Tagged with insurance

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According to the Los Angeles Times article published on October 27, 2014, California leads the nation in bicycle accident deaths. The LA Times article references a study by the Governors Highway Safety Association. In that study Dr. Allan Williams, found that today 84% of bicycle fatalities were people 20 years and older, vs. 40 years ago when that number was only 20%.

These numbers show us that more and more adults are riding bicycles than ever before. This is particularly true in urban areas such as Modesto, California, which boasts many impressive bicycle trails. In addition, the summertime brings upon more bicyclists which can lead to more fatalities or injuries.

If one is injured in a bicycle accident, what limitations are placed on an uninsured California bicyclist’s rights to recover damages, if he or she is hit by a car and severely injured? The calculation of damages can be complex, especially when an accident victim is an uninsured bicyclist who has not been able to pay his or her own substantial medical bills after a serious accident.

Before I head to the Modesto or Stockton office, I drop off my daughters at school. There is always lots of traffic, but somehow through the chaos, I am able to get them off to school unscathed. Students in southern California weren’t so lucky when 100 year old California driver, Preston Carter backed his blue Cadillac onto the sidewalk injuring children in front of Main Street Elementary School in South Los Angeles.

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This blog entry is not going to take a position on whether elderly drivers should or should not be allowed to drive. I wanted to write about the legal issues that rise out of this type of car accident.

NEGLIGENCE
The law does not require that older persons refrain from driving. What is required though is that each driver exercise care when operating a motor vehicle. In order for the people to recover for damages sustained by this 100 year old driver, they have to prove the driver acted with negligence when the car ran out of control injuring them. It’s not a question of whether the person is old who is behind the wheel, it is a question of whether the driver acted negligently.

As explained to readers in previous blog posts negligence is simply the failure to exercise the care that a reasonably prudent person would in the same situation. In other words, did the driver proceed the same way other drivers would under the same set of facts? Readers are likely to remember that there are five elements to negligence (1) Duty (2) Breach of Duty (3) Cause in Fact (4) Proximate Cause (5) Harm or Damages.

Assuming Mr. Carter failed to stop as he backed he car onto the sidewalk where pedestrians were located, the question becomes, would a ordinary driver act the same way that Mr. Carter acted under those circumstances? The answer is a resounding no. An ordinary driver in those same circumstances would have not continued to back his car into pedestrians, plain and simple. Mr. Carter owed a duty of care while operating his vehicle and he did not exercise care. In other words he breached the duty he owed the community. 11 people where injured, including children that would not have been caused unless they were ran into by the car driving by Mr. Carter. Lastly, those who were hit were absolutely injured and many were put into the hospital. Therefore the argument can be made that Mr. Carter acted with negligence and could be held liable for such.

PRODUCTS LIABILITY
Mr. Carter is claiming that his brakes in his car had failed. As reported in the Huffington Post, Mr. Carter told KCAL, “My brakes failed. It was out of control.” For the sake of argument assume that Mr. Carter is correct and his brakes did fail. Under that theory the people injured could potentially sue the car manufacturer or brake manufacture if the accident was caused by some manufacturing defect. An injured person is likely to see a greater recovery if successful by suing a big company because companies have much more money than Mr. Carter would have under his insurance company. That is an assumption but is true for most people driving today. A failure of brakes under this scenario is very unlikely. For the sake of this discussion we will revisit the principals of product liability.

If the readers remember from my earlier posts I have explained that under the California Supreme Court ruling in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal. 2d 57, a plaintiff alleging manufacturing defect only has to show that there is a product that was manufactured and that product failed causing injury. This is known as “strict liability”, meaning that a manufacturer is liable for any damages cause by the failure of their product even if the manufacturer took extraordinary care in producing the product.
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