Photo by ShutterstockTraffic "accidents," as they are often referred to, are usually no accident, and almost never an unavoidable accident. By definition, an accident is something that occurs unexpectedly and unintentionally. While a texting driver may not have intended to drift into the bike lane and hit the cyclist from behind, the result of their actions—texting while driving—is certainly not unexpected. The same can be said of a driver who chooses to speed, fails to use their turn signals, or tailgates the vehicle in front of them. Very few traffic collisions occur without at least one road user doing something careless (which the law also calls negligence), or downright reckless. Sometimes, one of these at-fault road users is the cyclist themselves. Or, at least, the driver or his insurance adjuster may claim so.
Human Error is The Critical Cause of the Crash in 94 Percent of Traffic Collisions
According to a study by the National Highway Traffic Safety Administration, the critical reason, or cause, in 94 percent of collisions is human error, such as failure to yield right of way. Other critical reasons in the remaining six percent of collisions include vehicle failure, the environment, and "unknown" causes. In almost every bike vs. car crash, chances are that either you or the driver will be cited in the official law enforcement accident report for causing the collisions—and sometimes it's both.
Building Your Case to Establish the Driver's Negligence
Not everything hangs on the outcome of the police report. While important, it is not absolutely critical for the success of your personal injury claim that the police report clears you of fault. After all, law enforcement sometimes gets it wrong when it comes to cyclists' right to the road. The most important thing, when it comes to proving fault, is being able to compile evidence and build a case that shows that you were following the rules of the road, while the driver was not. This is one of the most vital jobs of your attorney, because Colorado's comparative negligence doctrine means that if you are found to be even partially at fault, your personal injury claim can be significantly impacted.
How Colorado's Modified Comparative Negligence Works
As the plaintiff, your damages can be reduced by your percentage of fault for causing the crash. In fact, under Colorado's modified comparative negligence doctrine, the plaintiff's damages are directly reduced by their degree of fault. For example: you were riding in the bike lane at dusk without a light and a driver drifted into the shoulder of the road and hit you from behind. For the sake of this example, we'll assume that you are found to be 20 percent at fault for not having a rear light, while the driver is 80 percent at fault for not paying attention and drifting out of their lane of traffic. If your total damages amount to $100,000, you would only be able to collect 80 percent ($80,000) of what you would otherwise be entitled to. If you are 40 percent at fault, you would only be able to collect $60,000. Here in Colorado, if a plaintiff's degree of negligence is 50 percent or higher, they cannot collect any damages whatsoever.
Insurance Companies Can Use Comparative Negligence to Devalue Your Claim
An auto insurer's goal is fairly simple: shield the insured driver from personal liability, while at the same time pay the plaintiff as little as possible. One method to accomplish this is to assign blame to you, the plaintiff, even if it has already been established that the driver was at least partially negligent. Three arguments that insurance adjusters may use to invoke some degree of comparative negligence can include:
- Claiming that you did something to cause the collision based on the police report or the crash scene evidence at hand;
- Claiming that you did something to cause the collision based on the driver's false or fabricated statement; or
- Claiming you had a chance to avoid the collision but failed to do so. This is referred to as the "last clear chance" argument.
Fighting Back Against Comparative Negligence
When it comes to the rights of cyclists and the rules of the road regarding bikes, insurance adjusters, law enforcement, drivers, and eyewitnesses often get it wrong. For example, a cyclist wishing to make a left turn across traffic on a two-lane road has the right to take the full lane to make that turn. A distracted or road-raged driver who hits the cyclist from behind should be found fully at fault if the cyclist took the lane when it was safe to do so. A driver who takes a blind corner too quickly on a mountain road and hits a cyclist, who was a few feet out from the shoulder in an attempt to avoid a patch of gravel, should also be found fully at fault. Yet, in both of these scenarios the cyclist may initially be blamed for not being on the shoulder of the road or riding in the bike lane. Another common scenario in which blame is inappropriately assigned to the cyclist is when a driver pulls out of a parking lot/side street and hits a cyclist riding on the sidewalk. Cyclists often have a right to be on sidewalks or riding in crosswalks, depending on local ordinances. And, when they do have such a right, they have "all the rights and duties applicable to a pedestrian under the same circumstances," under § 42-4-1412.
Here at Colorado Bike Law, we have taken on many cases in which at-fault drivers, police reports, or insurance adjusters wrongly blamed the cyclist for causing or contributing to the crash, when, in fact, the cyclist was following the rules of the road to a T.
Cyclists are almost always wise to strictly follow the law for their own safety. Through these examples, you can see how those same good practices can help you in the context of pursuing damages when you are an accident victim.
Contact Colorado Bike Law Today
Not all personal injury attorneys are equipped to take on bike collisions. It is the duty of your lawyer to fully understand all of the rights and duties pertaining to cyclists in order to defeat unjustified claims of comparative negligence. An inability to do so will likely result in less compensation, meaning you will have less to pay for your hospital bills, property damage, lost income, and other damages. Call ColoBikeLaw to speak with attorney Brad Tucker today.