Legally Speaking – with Bob Mionske: Victim of circumstance?

Dear Bob;I was involved in an accident on my bike. I swerved to avoid a crazycab driver and ran into a pedestrian and knocked her over. She was injuredin the collision, so I called an ambulance and waited with her to makesure she would be alright. I also gave her all of my contact information.Now she's hired an attorney who is threatening to sue me. It doesn’t seemfair that I can be sued for an accident caused by the cab driver. Can Ibe held responsible for this accident?A.B.,New YorkDear A.B.;Wow, you got the double whammy there—being run off the road, and nowyou’re being sued. Before I

By Bob Mionske

Dear Bob;
I was involved in an accident on my bike. I swerved to avoid a crazycab driver and ran into a pedestrian and knocked her over. She was injuredin the collision, so I called an ambulance and waited with her to makesure she would be alright. I also gave her all of my contact information.Now she’s hired an attorney who is threatening to sue me. It doesn’t seemfair that I can be sued for an accident caused by the cab driver. Can Ibe held responsible for this accident?
New YorkDear A.B.;
Wow, you got the double whammy there—being run off the road, and nowyou’re being sued. Before I get to the issues involved, let me say thatafter the accident, you did everything you should have done. As we’ll see,this will help your case, so that’s one thing in your favor, right offthe bat. Now, what are we dealing with here?There are a couple of possibilities. First, let’s define a couple ofterms. You are not being threatened with criminal prosecution; youare being threatened with a civil action (a lawsuit). If a lawsuitis filed, the person suing you—the pedestrian—is the plaintiff, and youare the defendant. In order to prevail on her claim, the plaintiffmust prove her case. If the plaintiff proves her case, you will be foundliable, and may be ordered to pay damages. If the plaintiff fails to proveher case, you will not be found liable, the lawsuit will be dismissed,and generally, the plaintiff will be barred from filing another suit againstyou on a claim arising from the same set of circumstances.Although it seems unlikely, the plaintiff may be threatening you witha lawsuit for battery—the intentional infliction of a harmful oroffensive bodily contact. However, because the plaintiff would have toprove that you intended to collide with her, it just doesn’t seem likely.Under the circumstances, this would be difficult, if not impossible, toprove. Remember, you stopped to render aid, which is powerful evidencethat the collision was not intentional. For this reason, it is far morelikely that you are facing a threat of a lawsuit for negligence.Negligence can be defined as an act, or failure to act, which falls belowthe standard of duty of care established by law for the protection of othersagainst unreasonable risk of harm. I’ll break the negligence suit downinto six elements that must be proved (for more on negligence, see myOctober 6, 2005 column, The Perfect Stone):An Act or Actionable Omission by the defendantA Duty of Due CareA Breach of that DutyActual CauseProximate CauseDamagesIn a negligence suit, the act is the physical act of steering and pedalingyour bicycle. It could also mean, under a different set of circumstances,the failure to act.The duty of due care is the legal duty that every person owesto every other person to behave as a reasonable person would under similarcircumstances—a legal standard of conduct to protect others from unreasonablerisk of harm. Using the facts of your case, you would have a duty of duecare to ride your bicycle in a manner that would protect others from unreasonablerisk of harm. The reasonable person standard is determined by the “trierof fact”—most likely a jury, but occasionally a judge—and is based on whatthe jury (or judge) thinks a reasonable person would do under the samecircumstances. It is not based on what you personally believe tobe reasonable.A breach of duty occurs when a person’s behavior exposes othersto unreasonable risk of harm, either by acting or failing to act as a reasonableperson would. Those first three elements—an act or failure to act,a duty of due care, and a breach of duty—when combined forma negligent act. Now let’s look at an example: suppose there isa duty of due care to not ride your bicycle on a crowded sidewalk at ahigh rate of speed. This means that the jury has determined that a reasonableperson would not ride their bicycle in this manner. If you do ride yourbicycle on a crowded sidewalk at a high rate of speed, that is a breachof duty, and the physical act of steering and pedaling is the act. Thus,the act of riding your bicycle on the sidewalk at a high rate of speedwould be a negligent act.Now let’s look at causation. In a suit for negligence, thereare two types of causation that must be proved: actual causationand proximate causation. To determine actual causation we ask whetherthe defendant was the actual cause of the damage to the plaintiff. We alsoconsider proximate causation, which is the issue of forseeability; whenwe consider the negligent act we ask whether the damages were foreseeableor whether they are too remotely connected to the incident to consider.Now, let’s go back to the riding on the sidewalk example: it would be foreseeablethat riding a bicycle on a crowded sidewalk at a high rate of speed wouldresult in a collision with somebody or something. It would not be foreseeablethat somebody observing you riding your bicycle on a crowded sidewalk ata high rate of speed from a window 20 stories above would choke on hisdonut and die. In this example, one could show proximate causation forthe negligent act of riding on the sidewalk that resulted in injury toa pedestrian, but could not show proximate causation for the negligentact of riding on the sidewalk that resulted in injury to the donut victim.Finally, after the plaintiff has shown a negligent act and causation,the plaintiff must show damages—either physical (personal injury)or economic (financial) or both.A review of the facts
Now, let’s apply the facts of your case to a negligence lawsuit. Youwere riding your bike, and swerved to avoid a crazy cab driver and raninto a pedestrian, knocking her down. There are three things we need toexamine here: the cab driver’s actions, the pedestrian’s actions, and youractions. We’ll examine the cab driver and the pedestrian in a moment, butfirst, let’s look at how the facts apply to you. The first element of anegligent act—the physical act of steering and pedaling—is present. Thesecond element of a negligent act—a duty of due care—depends on what ajury would think a reasonable person would do under the same circumstances.As one example, a jury might determine that a reasonable person under thesame circumstances would ride their bicycle in observance of the trafficlaws. In fact, if you were riding in observance of the traffic laws, youcould introduce that as evidence that you were acting as a reasonable personwould under the same circumstances. If a jury determined that riding inobservance of the traffic laws is what a reasonable person would do underthe same circumstances, and if you were riding your bicycle as a reasonableperson would, then the plaintiff would be unable to prove a negligent act,and the case would be dismissed. On the other hand, if you were in someway violating the traffic laws while riding, the plaintiff would be ableto prove a negligent act. Let’s assume for a moment that you did actnegligently. There was physical injury, so the plaintiff suffered damages.The only question remaining would be causation. Actual causation—your ridinginto the pedestrian—would be easy to prove. What about proximate causation—wasthe injury resulting from your negligent act foreseeable? If so, the plaintiffwill prove her case. If not, the case will be dismissed.Now—what about the pedestrian’s role in this accident? The locationof the pedestrian may have some significance in the outcome of this case.For example, if the pedestrian was on the sidewalk, or in a crosswalk,the pedestrian would have the right of way. However, if the pedestrianwas crossing the street at any point other than a marked crosswalk, thevehicles have the right of way. So if the pedestrian was not on the sidewalk,or in a crosswalk, two problems are raised for her case. First, you hadthe right of way; second, there was no foreseeability, and thus, no causation.Additionally, if the pedestrian was jaywalking, and caused damage to youor your bicycle, you could file a lawsuit against her, which would giveyou a stronger position from which to reason with her attorney.Finally, there’s the question of the cab driver. Remember him? The guywhose erratic driving caused you to swerve into the pedestrian? You willbe relieved to know that the law doesn’t let him off the hook, and mayexcuse you. First, in an emergency situation that is not created by yourown negligence—such as swerving to avoid an accident—the courts apply adifferent standard of due care. Second, even if you committed an otherwisenegligent act, such as not obeying the traffic laws, the cab driver’s rolein this accident may be the true proximate cause of this accident; in thatcase, the cab driver’s erratic driving may be considered a supersedingact that shifts liability for the accident away from you, and ontothe cab driver. Finally, let’s say that you and the cab driver were equallyengaged in a mutual act of road rage, the cab driver swerved into you,and you swerved into the pedestrian. Under New York’s comparative negligencelaw, the jury may apportion out liability to each of the parties they findliable, including the plaintiff. Thus, as one example, they might findthe cab driver 50-percent liable, you 30-percent liable, and a jaywalkingplaintiff 10-percent liable. You are not required to produce witnessesto testify regarding the cab driver; your own testimony is admissible asevidence. However, having witnesses testify regarding the cab driver canonly help your case, so you should make every effort to locate witnesses.Because you are facing the threat of a lawsuit, you should consult withan attorney immediately. If you have an auto insurance policy, ask theattorney if your policy covers this type of accident. In addition to receivinglegal advice, hiring an attorney to represent you means that the plaintiff’sattorney cannot press you for settlement directly—he or she will be requiredto deal with you through your attorney, and that will help ease some ofyour worry.
Good luck,
(Research and drafting assistance provided by Rick Bernardi-LawStudent-Lewis and Clark Law School)

Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at notice:
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