If you are injured by someone because they were avoiding someone who was negligent, can you sue the person who was negligent?Posted: September 14, 2015 Filed under: Assumption of the Risk, Cycling, New York | Tags: assumption of the risk, Bike Lane, Causation, Choice of Two Evils, Cycling, Proximate Cause Leave a comment
This is a little off subject for me but something I’ve always wondered about. Here a car moves into the bike lane and the first rider stops; the second rider hits the first, injured and sues the driver.
Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450
State: New York, Supreme Court of New York, Appellate Division, Fourth Department
Plaintiff: Carol M. Stone and Roger E. Stone
Defendant: Jesse D. Neustradter and Craig E. Brittin
Plaintiff Claims: Negligence
Defendant Defenses: No Negligence
Holding: For the Plaintiff
The facts are argued two different ways in this appeal; however, the court accepted the plaintiff’s version. The plaintiff was riding behind her husband. A car driven by the plaintiff moved into the bike lane. The husband took evasive actions to avoid being hit by the car and collided with his wife the plaintiff.
Here are the facts from the decision.
Defendants’ submissions included the deposition testimony of the husband, who testified that he was bicycling just ahead of plaintiff, with both of them traveling to the right of the white fog line in a “bike lane.” The husband further testified that plaintiffs were descending a hill when he saw the vehicle moving in the driveway approximately 15 feet ahead of them, and that the vehicle moved past the end of the driveway approximately two feet into the “bike lane.” He also testified that when he first saw the vehicle, he yelled to the driver as loud as he could to alert the driver to their presence. He then veered to the left for fear of being struck by the vehicle, and plaintiff’s bicycle struck his bicycle
The vehicle did not make contact with either rider. This fact was sufficient for the trial court to dismiss the case finding no negligence because there was no contact. The trial court found the sole cause of the accident was the “uncontrolled operation of a bicycle ridden by the husband.” (?)
The appellate court found otherwise and reversed.
Analysis: making sense of the law based on these facts.
The appellate court held that the defendant did not prove they were not negligent or not the proximate cause of the accident.
Specifically, defendants’ submissions failed to eliminate all questions of fact whether the driver was negligent in encroaching onto the shoulder of the road, thereby blocking the pathway of the oncoming bicycles, or in operating the vehicle as it approached the road from the driveway that was partially obscured by landscaping.
The trial court also found that the husband riding the bicycle was the sole proximate cause of the accident. “Defendants therefore also failed to establish as a matter of law that the husband’s operation of his bicycle was the sole proximate cause of the accident.” Meaning that the only reason for the accident was the way the husband rode his bicycle which is how the lower court seemed to have looked at this case.
The appellate court saw the issues differently.
We conclude that there are questions of fact whether the driver was driving in a reasonable manner and whether the driver’s actions set off a chain of events that caused the husband to take action in evading the vehicle, which led to the collision between the plaintiffs’ bicycles.
The court also dismissed the defense of assumption of the risk, which is a great benefit if you are a cyclist. “Finally, we conclude that “assumption of the risk does not apply to the fact pattern in this appeal, which does not fit comfortably within the parameters of the doctrine“”
If not, in every bicycle accident, the driver would have the opportunity to say he was not at fault because the cyclists assumed the risk of riding a bicycle.
So Now What?
This is a case where I support the plaintiff. I’m also a cyclist which should be disclosed. However, how often have you been in a situation where you thought you have the choice of two evils? I can hit the other car which is causing the accident or hit the innocent car, cyclists, or pedestrian.
If you are the real cause of the accident, even though your car was hit, you may still be sued for the accident for any injuries.
Here if a car swerves or bakes suddenly taking out the entire pace line, every injured cyclist can sue the driver for causing the accident.
What do you think? Leave a comment.
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