What Are Some of My Rights As a Pedestrian?

Written by Christopher B. Dolan

This week’s question comes from Kevin in San Francisco: I live in the City and like many people, I do not own a car. Too expensive. I tend to walk often and enjoy it. Can you talk more about pedestrian law and pedestrian safety. Seems like every day I have to make sure I do not get sidelined by an electric bike or scooter. Even when I cross the street on a crosswalk, and I have the green light, cyclists and scooter riders just speed towards me. What are my rights? Don’t I have the right of way? 

Kevin, thank you for writing us. You are right to feel concerned about the risks to your safety as a pedestrian in San Francisco. Traveling as a pedestrian has become increasingly risky in the past decade. According the National Highway Traffic Safety Administration pedestrian fatalities have increased by 46% from 2010 to 2019. 

San Francisco is more densely populated than most major U.S. cities, and has some of the highest levels of traffic in the world. On top of that, millions of people visit San Francisco every year. In a city like San Francisco, the danger to pedestrians seems to be an accepted fact of life, as it is in other major cities, yet drivers still are liable for the injuries they cause to pedestrians when they hit someone due to speeding, inattention or distraction, impaired driving, or some other factor.

In such a dense city the risks are high when traveling as a pedestrian. A moving bicycle, scooter or motor vehicle can cause catastrophic injuries and death when they collide with a pedestrian. From 2016 to 2020 there were over 4,000 pedestrian crashes in the San Francisco Area, with nearly 80 pedestrians killed and thousands more injured. 

Pedestrian crashes are much more likely to occur in inner-city neighborhoods, the Tenderloin, SOMA, Mission, and Downtown specifically. However, on a per crossing basis, individual pedestrians are at a higher risk of being struck by vehicles in the less dense, more residential areas, meaning anywhere in San Francisco there are risks of being injured as a pedestrian. 

Pedestrian crashes are often caused by negligence on part of a driver. Most pedestrian injuries and deaths occur at nighttime and drivers impaired by drugs and alcohol raises the risk of pedestrians being hit by a driver’s negligence. It is important to always assume a driver does not see you, and stay out of the way of any moving bicycles, scooters or motor vehicles. 

Another major cause of pedestrian injuries is speeding vehicles. Speeding vehicles increase the likelihood of injury and increase the severity of the injury. The body is a fragile thing and you should always be cautious when approaching a roadway as a speeding vehicle can come out of no-where and cause devastation. 

With chaotic streets, bustling traffic, and a growing population of bicycle and scooter riders, what are a pedestrians rights and how do they protect pedestrians?

CVC § 21950 is the primary Right-of-Way law in California which states that,

“The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.”

This law requires drivers to slow down and exercise due caution to keep pedestrians safe.

Unfortunately, the law is not completely straightforward, and CVC § 21950 also states,

“No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.”

Drivers have further duties under CVC § 22350 which is commonly known as the “basic speed law.” This section prohibits those driving motor vehicles from driving faster than what is reasonable in a given circumstance. Under California’s basic speed law a driver must drive at a safe speed that does not endanger the safety of pedestrians.

Pedestrians do not always have the right of way, and in cities like San Francisco the law sets forth specific guidelines for when a pedestrian has the right of way or not. Even though pedestrians do not always have the right-of-way, if a pedestrian violates their duties it does not mean a motorist or bicyclist is free to hit them without liability for the injuries. 

Just because a pedestrian has the right-of-way does not protect them from being injured. Drivers failing to yield to pedestrians with the right-of-way was the primary cause for more than 42 percent of pedestrian collisions from 2016 to 2020. The law will not protect you from injury from those who do not follow it. The law will only provide you with an avenue to get compensated for your injuries. 

No amount of compensation following a catastrophic injury or death will truly pay for the damage of a pedestrian accident. As a pedestrian you should keep yourself as safe as possible when traveling around the streets. You should do the following as a pedestrian to reduce your risk of injury or death:

  • Wear visible clothes, especially at night time. If it is dark bring a flashlight and reflective clothing. 

  • Use crosswalks to cross streets, but do not put your trust in having a green light. ALWAYS check for oncoming motorists, bicyclists and other riders before you cross the street.

  • Do not walk in bike lanes. Always use the sidewalks and stay away from the roadway and bike lanes.

  • Stay aware of your surroundings when traveling. This means avoiding noise canceling ear buds and other distractions. 

Your safety should be your primary concern when traveling on foot. Even the sidewalks can pose risks to pedestrians. Watch out for holes, cracks and unkept walkways. 

If you are ever injured in San Francisco you should contact an experienced personal injury attorney who is knowledgeable about pedestrian laws and will fight to recover compensation from those responsible.

Be safe out there Kevin, thank you for voicing your concerns.

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I Was Involved in a Motorcycle Crash: What Can I Do?

Written By Chris Dolan

This week’s question comes from Rob in Foster City, who writes: I was in SoMa last weekend, and got in a motorcycle crash. Coming home late at night on my motorcycle, when a van in the left lane beside me swerved into my lane nearly hitting me. I jammed on my brakes and hit the back of the van. The driver said he had no insurance. The van he was driving belonged to the company he worked for. I broke my wrist, and my bike is a wreck. What can I do?

Thank you for your question, Rob. I started riding motorcycles as a teenager and, as a lawyer, regularly represent injured motorcyclists. One of the most common scenarios in the motorcycle crash cases I litigate is when a driver, without signaling, cuts off a motorcyclist or turns suddenly from the opposite lane in front of the motorcyclist. In both cases, the resulting collision can be fatal to the motorcyclist. I am relieved your injuries, while serious, were not life-threatening.

Here, the van driver violated California Vehicle Code Section 21658, which states,

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction,” it is the rule that “(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”

I assume the damage to your motorcycle was more than $750. If that is the case, you have to report the accident to the DMV within 10 days of the accident. If you have not already filed the report, go the DMV website, search for Form SR-1, complete the form and send it in right away to the DMV.

You didn’t mention whether you have motorcycle insurance. Assuming you do, you need to ask your agent about whether your insurance policy contains uninsured and/or underinsured motorist coverage. What is uninsured and underinsured motorist coverage? Let’s start with what it isn’t.

When we think of insurance, we think of liability insurance. It protects your assets if you are at fault for an accident and you hurt someone or damage someone else’s property.

Liability insurance does not, however, protect you from damages you suffer in an accident that is someone else’s fault. That’s where uninsured and underinsured motorist coverage applies. Because many drivers in California violate the law and drive without insurance – or have a bare bones policy – California law requires insurance companies to offer consumers this coverage.

Even though the other driver did not have insurance, your insurance policy may be sufficient to cover both the financial loss you suffered – your wrecked bike and any days missed from work – as well compensate you for your broken wrist and medical expenses due to the collision.

What happens if you don’t have insurance?

I hope that is not case. But if it is, the company that owned the van may be legally responsible for your motorcycle crash injuries under the legal doctrine respondent superior, which is Latin for “let the master answer.” The doctrine is codified in California Civil Code Section 2338. It holds an employer responsible for the torts (wrongs) committed by its employees that fall within the “scope and course of their employment.”

You have to show that that the employee was negligent (acting in a manner that was unreasonable or illegal), and that the employee was also involved in the employer’s business enterprise at the time of the collision.

Here, the employee’s negligence is clear: He violated the vehicle code. Was the van driver also involved in the employee’s business? If he was delivering an item for the company or returning the van to the company parking lot after he completed his work shift, the answer is yes.

Determining if an employer is legally responsible for an employee’s negligence requires a thorough investigation of the facts. I suggest you consider contacting an experienced motorcycle crash attorney to advise you further on your legal rights and remedies.

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Motorcycle Laws in California: What Motorcycle Rules and Laws Do I Need to Know?

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from Anonymous who asks: I am thinking of getting a Motorcycle. What are the rules for operating motorcycles on the road here in California?

Dear Anonymous,

Thanks so much for your question. Since the pandemic, California roadways are seemingly returning to normal (i.e., traffic).  Couple that with the end of remote learning and back-to-school, and ‘tis the season to be stuck in traffic. As motorcycles whiz by the rest of us trapped in bumper-to-bumper traffic, some see danger in the two-wheelers, while others see inspiration.   

If you’re one of the inspired, Section 12500(b) of the California Vehicle Code requires a valid driver’s license or endorsement to drive a motorcycle. Section 12804.9(b)(4) specifies that the motorcycle driver’s license (Class “M1”) may be granted by endorsement on a class A, B, or C license upon completion of an appropriate examination. 

Examination

As an initial matter, you must be 21 years of age to obtain an M1 license or endorsement in California. However, if you provide evidence of completing a “novice motorcycle safety training program,” the D.M.V. may make an exception. (Cal. Veh. Code § 12804.9(i)).

In all cases, an M1 license applicant must take an examination. The examination consists of a driver knowledge test, a motorcycle knowledge test, and a motorcycle skills test.  All these tests must be passed before California issues the M1 license or endorsement. A “Certificate of Completion of Motorcycle Training” may help you avoid taking the motorcycle skills test, but the knowledge tests will still be required. (Cal. Veh. Code § 12804.9(g)). 

Insurance

The same financial responsibility laws that apply to motor vehicles apply to motorcycles. California requires insurance to operate a motor vehicle on the roadways. Currently, the law requires a minimum of $15,000 for injury/death to one person, $30,000 for injury/death to more than one person, and $5,000 for property damage. (Cal. Veh. Code § 16020, et seq.) Failure to provide evidence of financial responsibility can result in a fine of up to $750.

Is Lane Splitting Legal in California?

YES. Lane Splitting is LEGAL in California.  Section 21658.1(a) of the Vehicle Code defines lane splitting as

“driving a motorcycle…that has two wheels in contact with the ground, between rows of stopped or moving vehicles in the same lane, including on both divided and undivided streets, roads, or highways.”

Under subsection (b), the California Highway Patrol developed educational guidelines relating to lane splitting in a manner that would ensure the safety of motorcyclists and the drivers and passengers of the surrounding vehicles. To wit, the CHP has created several guidelines, lane splitting tips for motorcyclists, and guidelines for other vehicles.  

Some of the key guidelines for motorcyclists include:

  • The danger increases as overall speed increases.
  • It is typically safer to split between the far-left lanes than between the other lanes of traffic.
  • Riding on the shoulder is ILLEGAL; it is not considered lane splitting.

Some of the key messages for drivers of other vehicles include:

  • Lane splitting by motorcyclists is legal in California.
  • Drivers in the far-left lane should move to the left of their lane to give motorcyclists ample room to pass.
  • Intentionally blocking or impeding a motorcyclist in a way that could cause harm to the rider is illegal.

Helmets

All drivers AND passengers on motorcycles must wear a safety helmet that meets specific requirements established in the vehicle code.  It is illegal to operate or ride as a passenger on a motorcycle (including a motor-driven cycle).  Cal. Veh. Code § 27803.  

The helmet MUST meet Federal Motor Vehicle Safety Standard No. 218 (codified under 49 C.F.R. Sec. 574.218). This means that the helmet must be approved by the U.S. Department of Transportation. This standard lays out specific design elements related to helmets worn to protect the user from injury. The federal standard lays out threshold expectations that must be tested using particular means and parameters to ensure uniform testing methods. Moreover, section 27802 of the Vehicle Code specifies that it is illegal to sell or use motorcycle helmets that do not meet these requirements.  

Many attempts to repeal California’s helmet laws or limit them have failed.  California stands steadfast in its commitment to motorcycle driver and passenger safety.  As a potential rider, so should you.    

For more information, guidelines, and tips, please consult the California Highway Patrol’s Website at: https://www.chp.ca.gov/programs-services/programs/california-motorcyclist-safety

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Can I Get a New Lawyer in my Personal Injury case?

Written By Christopher Dolan and Nancy Villatoro

This week’s question comes from Anonymous who asks: Can I change attorneys at any time? What are things I should consider when doing so?

Dear Anonymous:

Thank you for your question. You have the right to discharge your attorney at any time and for any reason. In certain circumstances, your first-choice attorney may not be the best fit for you and your type of claim. You may realize that you can pursue a claim on your own or that another attorney better fits your needs. Here are some things to consider as you make your decision.

Generally, if you have signed a contingency agreement, changing attorneys does not cost you more money. When hiring a personal injury attorney, you have presumably signed a contingency agreement under California law, (Cal. Bus. & Prof. Code § 6147; Fletcher v. Davis (2004), 33 Cal. 4th 61, 71.) This agreement states that your lawyer gets one-third of your verdict or settlement if any. You will reimburse your attorney for any costs incurred.  When you change lawyers, your new lawyer and your old one will share this fee. The total amount you pay for attorney fees will likely remain the same depending on your new agreement. The attorney will split the fees according to how much work was done on your claim. Additionally, changing lawyers may be in the best interest of your claim. You may find an attorney that will work harder for you and has more resources may get you a better outcome. When making the change, by law, your old attorney is required to provide you and/or your new attorney with all your records.

In other less desirable circumstances, an attorney may elect to decline or terminate their legal representation. In California, the Rules of Professional Responsibility, Rule 1.16 lists the circumstances where an attorney may withdraw from representing a client. Withdrawal most commonly occurs when:

  1. “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;”
  2. “the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation; or
  3. “the client knowingly and freely assents to the termination of the representation” (this one is most likely to have less contention.)

Number one and two above generally may occur after the attorney and the client have irreparable differences, the client has become unreasonably difficult, or the client refuses to cooperate during the litigation. 

An attorney that is either discharged or withdraws prematurely can prevent the former client from “settling around” their lien by filing a notice of lien in the pending action. (Valenta v. Regents of University of California (1991) 231 Cal. App. 3d 1465, 1469–1470.) However, to enforce the contractual lien, the attorney will have to seek an independent action against the former client to establish the lien’s existence, determine the amount of the lien, and enforce the lien. (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1173. 2002.) 

If an attorney is discharged or withdraws “on the courthouse steps” and substantial representation has occurred, the court will consider this to determine the reasonable value of the attorney’s services. The court may justifiably find that the entire fee was the reasonable value of the attorney’s services. (Hood vs. Gonzalez (2019) 43 Cal.App.5th 57, citing Fracasse vs. Brent, (1972) 6 Cal.3d 784; See also Oliver v. Campbell (1954) 43 Cal.2d 298.)

Under a contingency fee agreement, when an attorney withdraws from representation based on “justifiable cause,” he or she is entitled to recover in quantum meruit. (See Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656; See also Estate of Falco (1987) 188 Cal.App.3d 1004.) Under quantum meruit the law implies a promise to pay for services not gratuitously rendered. (See Long v. Rumsey (1938) 12 Cal. 2d 334.)  “The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant [former client].”  (Palmer vs. Greg (167) 65 Cal. 2d 657, 660.) A quantum meruit recovery requires a trial court to consider several factors:

“‘[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney’s efforts, the attorney’s skill, and learning, including his [or her] age and experience in the particular type of work demanded.” (See Mardirossian & Associates, Inc. v. Ersoff, (2007) 153 Cal.App.4th, 257,  272.)

The underlying idea behind quantum meruit is the laws distaste for unjust enrichment. If one has received a benefit which one may not justly retain, one should restore the wronged party to his or her former position by either returning the “thing or its equivalent in money.” (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, Section 91, p. 122.)  

Although changing your attorney may seem simple, do your research before retaining an attorney and seek a second opinion when needed. In some circumstances, clear communication can be your best solution. 

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School is in Session: Drivers Slow Down for Students

Written By Christopher Dolan

This week’s question comes from Becky M. in SoMa who asks: When I was dropping my daughter off at elementary school last week, I drove up the street next to the school. It’s a narrow road with one lane in each direction. I was waiting in line for curbside drop-off when a yellow school bus stopped in front of us and turned on its red flashing lights. I stopped behind the bus and waited, even though I could have passed the bus in the lane for oncoming traffic. All the other cars behind me started honking and passing the bus on the left side. I was in a rush to drop off my daughter, but I waited for the lights to stop flashing before I went ahead and dropped her off. I thought I was supposed to wait behind the bus, but no one else was waiting, did the law change?

Thank you for your question, Becky.

The law has not changed. You did the right thing by stopping for the bus and remaining stopped until the bus turned its flashing lights off. California Vehicle Code section 22454(a) requires:

“[t]he driver of any vehicle, upon meeting or overtaking, from either direction, any school bus equipped with signs as required in this code, that is stopped for the purpose of loading or unloading any schoolchildren and displays a flashing red light signal … visible from the front or rear, shall bring the vehicle to a stop immediately before passing the school bus and shall not proceed past the school bus until the flashing red light signal … cease[s] operation.”

Simply put, this means that when the bus stops and flashes its red lights, located at the top front and back of the bus, you must bring your car to a stop, even if you are traveling in the direction opposite the bus. You must stop with enough clearance to allow for children to safety cross the street in front of the bus. You also must stay stopped until the bus turns off its red flashing lights, even if you do not see any children crossing the street. While it might seem inconvenient to stop and stay stopped for such a long time, this is an important, life-saving rule. When the bus is stopped with its red lights flashing, it means that children are either getting on or off the bus and are likely to be crossing the street. Because the bus is large and the children are small, your view of the children crossing may be obstructed.

The consequences for breaking this law can be astronomical — your careless decision could take away a precious, young life. Even if you are lucky enough not to harm a child while passing a stopped bus with flashers activated, your selfish act can earn you a $1,000 fine and a 1-year license suspension.

With school back in session for Fall, it is a good time to remind ourselves to slow down, be patient, and drive safely. Here are a few good rules of thumb to help keep school children safe:

  • School Zone Speed Limits: Drivers should always observe reduced school speed limits, typically 25 mph or even as low as 15 mph. Watch out for school crossing guards and follow their instructions.
  • Watch for Pedestrians and Bicycles: Drivers should be extra vigilant in keeping an eye out for children walking, biking, or scootering to school. Young children riding bikes or scooters can be unsteady, unpredictable, and are often inexperienced.
  • No Distractions: Keep your eyes on the road rather than on your phone or any other device. Taking your eyes off the road for just two seconds means that you may not see a child crossing in front of your car.
  • Talk to your Child: Teach your child to be safety-conscious. Remind your child to keep a proper lookout for cars in the roadway, be alert while crossing the street, and make sure that drivers see you/acknowledge your crossing. Also, remind your child to be aware of cars entering driveways or backing up.

If you were injured in an accident caused by a careless driver, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages include things like pain and suffering, physical impairment and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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