Lessons in Liability From The Bicycle Attorney

Thomas Forsyth Answers Our Questions Regarding the Liability and Responsibility of Bicyclists and Pedestrians

BICYCLIST.fm Episode #45 – Legal Lessons available on your favorite podcast platform.

Let’s discuss a scenario you might see perhaps on PCH or the HB area: A bicyclist is traveling in the bicycle lane and a pedestrian steps out from behind a parked car and doesn’t see him, they both collide and there is an accident. Who is at fault?

The first thing you have to understand about negligence law in California is that we are a comparative fault state. In order to understand what that means we’ll need a little history about negligence law. Under the old common law, if you were in any way responsible for your own accident, or you were somewhat at fault for the accident, you could not recover against the other party. Eventually, that was done away with and evolved to contributory negligence, which meant as long as you weren’t the majority at fault for your accident, in a 51/49 percent scenario, you could still recover against the other party.

California has done away with all of that and leads us now to comparative fault. Comparative fault means that we use a sliding scale so theoretically, you could be responsible for 90% of your account and recover the 10% from the other party. How would that work? If there was a jury award for 100k dollars, they would reduce it by 90 percent and you would get 10k out of that jury award. If a claims adjuster was settling a case, and they felt you were 50% at fault, you would get 25k back from them.

Going back to the original scenario, we’ve got a pedestrian stepping out into the roadway/bike lane as a cyclist is coming. This may be a typical lawyer answer, but the person at fault really depends on each unique situation. Under negligence law, everyone has a duty to act reasonably under the same or similar circumstances. The pedestrian would have a duty to act as a reasonable pedestrian would in these circumstances, by checking for oncoming traffic and looking that it was clear before he stepped out from in-between the cars. The cyclist would have the same duty to ride as a reasonable cyclist in the same or similar circumstances and make sure that it was clear as he’s riding down the bike lane.

Under our legal system, pedestrians do enjoy the highest degree of protection from vehicles. For instance, just because somebody is jaywalking, doesn’t mean you have the right to plow him or her down in a car because they are technically breaking the law; you have to yield to them if given the opportunity. The same applies to a bicyclist if the pedestrian steps in the bike lane with an appreciable amount of time for the cyclist avoid them. However, if the pedestrian is stepping out in front of a cyclist and the cyclist has no appreciable amount of time to avoid the accident, and wasn’t doing anything himself or herself – such as talking on a cell phone, looking down, shifting gears, or going way too fast under the circumstances – then the pedestrians is probably going to be responsible for that accident. Technically, the cyclist could recover against them, if there was some form of recovery, an insurance policy, or perhaps home owners insurance.

With regard to the bicyclist, if they’re not paying attention, they’re going too fast, or they know there are pedestrians coming out, then they could be found responsible for the accident. Since we’re in a comparative fault state, a jury or judge or arbitrator could find both parties at fault and award based on their percentage of fault for each party. You have to be aware of your circumstances and ride reasonably and the pedestrian must be aware of their circumstances and act reasonably. Given straight facts, if the pedestrian didn’t look for oncoming traffic and just stepped out into the roadway, then they would probably be found at fault.

Thomas Forsyth, The Bicycle Attorney has been supporting the cycling community since 1995 with offices in both Pasadena and San Jose. Visit him on bicycleattorney.net or call him directly at (626) 240-4633 for a free consultation.

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