This week’s question comes from Joshua P. in the Dogpatch, who asks:
Q: “I was riding my bike down the street, on the right-hand side of the road, when I came upon some stopped traffic that was waiting for the light to change. There were about 10 to 15 cars backed up at the light. There was no bike lane at this location, and to the right side of the parked traffic there was a bus stop with people waiting for the next bus to come. As I began passing the last car, the light turned green and the cars in the front began moving. Suddenly, and without any warning, the passenger door on the 12th or 13th car swung open when I was about 4 feet away. I had no time to stop and I ran squarely into the door, was knocked from my bike and broke my wrist. The guy jumped out of the car and ran away. People from the bus stop prevented the driver of the car from driving off and the police were called. The driver of the car says that he doesn’t know the last name or contact information of the person who got out of the passenger side, saying he just met him at a coffee shop and offered him a ride to the bus stop so he could take the bus downtown. The driver’s insurance company is saying that the driver has no responsibility and my only recourse is against the passenger. Is this true?”
A: I’m sorry to hear that you are one of the growing number of bicyclists who are being injured by careless motorists and passengers. Believe it or not, this is almost the same fact pattern as one of the first cases that I tried in the early 1990s. (I won the trial and the car driver was held responsible for the ruptured spleen my client suffered.) It does not surprise me that the insurance company is trying to evade responsibility; after all, its profitability is based upon it paying out the minimum it can on claims.
Quite often, insurance companies seek to fault bicyclists who were driving on the right-hand side of the road if they are passing traffic that is traveling slower to their left. In essence, they seek to argue that the bicycle should be traveling in the line of traffic between cars at the same speed as the other vehicles. Although bicycles are allowed to occupy the entire lane, many bicyclists are fearful of doing so as it is recognized that this can present a significant hazard for bicyclists. California Vehicle Code Section 21202 encourages bicyclists to ride as close to the right-hand side of the road as is practical.
The insurance company is right in one respect — the passenger has liability for opening up the car door. California Vehicle Code Section 22517 states: “No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passenger.”
Just because the passenger has liability does not mean that the driver does not also have liability for your injuries. Our state is one that recognizes comparative fault, thereby analyzing the conduct of all parties involved in assigning a percentage of responsibility to each based upon their relative degree of fault.
As to the car driver, it is the duty of the driver of a motor vehicle using a public road to be vigilant at all times and to keep his or her vehicle under such control so as to avoid collision. Failure to do so results in liability for damages suffered if such negligence was a proximate contributing cause of the action and resulting injury (see Lutz v. Chandel, 1959).
California Civil Code Section 1714 states, “Everyone is responsible, not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his underlying property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”
This liability extends to the operator of the motor vehicle. As drivers are supposed to pull as close to the curb as practical while picking up or discharging passengers, the driver’s failure to do so creates liability for the foreseeable harm that you suffered. In his or her defense, the driver can argue that others, including you and the passenger, are comparatively at fault.
Feel free to use this article in your future discussion with the driver’s insurance company. If the insurer continues to stonewall you, find yourself a good trial lawyer to protect your rights.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.