Car Accidents | Dolan Law Firm

California law addresses safety for bicyclists

Written by: Christopher Dolan and Taylor French

Drivers and bicyclists must coexist in an environment that, at times, can feel too crowded for both.

California has enacted several laws throughout the years in an effort to ensure the safety of those sharing the roads, but none is more important than the Three Feet for Safety Act. In 2013, California’s legislature passed the act, codified as California Vehicle Code section 21760, requiring drivers to give bicyclists a minimum of three feet between the motor vehicle and bicycle when passing in the same direction on a highway. This law became operative on Sept. 16, 2014.

Prior to the act, the California Department of Motor Vehicles had already provided that maintaining three feet between cars and bicycles was the best practice, but the act gave law enforcement the ability to stop a motorist and issue an infraction for failing to keep this distance. An infraction issued for a violation of California Vehicle Code section 21760 results in a minimum fine of $35. If a collision occurs between a car and bicycle causing great bodily injury to the bicyclist, the driver of the car will be issued a $220 fine. In addition to these fines, however, the motorist will also likely incur court fees and/or other administrative fees, which could significantly increase the cost of a violation.

While the act is as straightforward as it sounds — a car may not pass a bicycle traveling in the same direction unless it provides, at a minimum, three feet between the car and the bicycle — there is another important caveat. Subsection D of California Vehicle Code section 21760 states:

(d) “If a driver is unable to pass with three feet of distance due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.”

The language of subsection D appears to give some discretion to officers stopping motorists for passing too closely and to drivers when deciding whether to pass a bicyclist. Ultimately, this language also gives judges discretion in issuing fines, should a driver contest the violation.

In addition to an infraction, a violation of California Vehicle Code section 21760 may carry additional ramifications that drivers may not anticipate. For example, if a driver hits and injures a bicyclist in violation of California Vehicle Code section 21760, the driver can be found to be, “negligent per se,” in a civil lawsuit.

Negligence per se is a legal doctrine establishing a presumption of negligence for a violation of a statute, ordinance or regulation. If a defendant in a civil lawsuit is found to have violated a statute, the violation caused the type of harm the statute was designed to protect, and the plaintiff is of the class of people the statute was designed to protect, then the defendant is considered negligent per se. In other words, as a matter of law and as applicable here, a defendant driver who violated California Vehicle Code section 21760 — thereby causing bodily injuries to a bicyclist — could be considered negligent and liable for those injuries and the resulting damages.

So, what can drivers do to ensure they are maintaining at least three feet from bicyclists and to avoid a violation of California Vehicle Code section 21760? Most importantly, if in doubt, drivers should assume they are too close to a bicyclist. Remember, the act provides the minimum distance from a bicyclist that a driver must maintain, but there are certainly situations where three feet is simply not enough space.

Drivers should consider the amount of time it takes to bring a car to a complete stop to avoid hitting a bicyclist. When passing, drivers should consider changing lanes rather than attempting to sneak past bicyclists. And remember, drivers can only pass a bicyclist when it is safe to do so, and risking a bicyclist’s life to save a few extra minutes during one’s commute is never a risk worth taking.

Finally, what can bicyclists do to ensure a safe distance around them? Bicyclists should always make sure they are visible and should never assume a driver will maintain a three-foot minimum distance.

While the act puts the burden on the driver to maintain the three-foot buffer, bicyclists should always make sure to monitor the distance and avoid careless, distracted or inexperienced drivers. Bicyclists can even wear a “Three Feet” bike jersey to remind drivers of the distance requirement. It just may save a life and get the bicyclist some compliments in the process!

This week’s question comes from Sandra in the Upper Haight, who writes:

Q: “Chris, can you settle a matter for me? My best friend and I share a car. She is new to The City and constantly holds her phone while driving to check directions. When she is not doing that, she uses Spotify on her phone to listen to music through the car’s speakers. I love her dearly and don’t want her to cause or be in a crash. I have told her she can’t use the phone in her hand while driving. She claims it’s only illegal to hold the phone to talk or text. Is she right?”

A: Sandra, your friend’s understanding of the law is incorrect.

Before discussing the law, even if your friend’s phone use was legal, it is extremely dangerous. More than 11,000 drivers and passengers are annually killed or injured in traffic collisions involving distracted driving in California. And distracted driving is on the rise. Nearly 13 percent of the state’s drivers were seen talking, texting or using a cellphone in some manner during a study conducted last year by the state Office of Traffic Safety, compared to 9 percent in 2015.

Taking your eye off the road for even a few seconds can result in a devastating crash. It takes 4.6 seconds to read or type the average text message. Just three seconds of driving at 65 mph is far enough to travel 100 yards, or the length of a football field. Most crashes happen with less than 2 seconds of reaction time.

Using a hands-free device — such as speakerphone, an earpiece, ear buds or the car’s communications system — does not make driving safe. In fact, research shows that headset mobile phone use while driving is not substantially safer than handheld use. Drivers need to have their eyes on the road, hands on wheel and mind on driving. It’s a myth that drivers can multitask well. There is no safe way to make a call or text while driving.

Since 2011, it has been illegal to drive a vehicle while using a phone unless also using Bluetooth or other hands-free technology. Furthermore, drivers under the age of 18 may not drive while using a phone — even if it is equipped with a hand-free service. Both statutes contain exceptions for making a call in an emergency.

California had another statute that focused on texting while driving. It was illegal to write, send or read a text while driving unless the driver was using the phone with voice-operated and hands-free technology.

The statute was written before phone applications came into common use. Thus, it was legal to drive while scrolling through the phone’s music playlist, searching for nearby restaurants, viewing status updates on Facebook or reading a Twitter feed. In People v. Spriggs (2014), the appellate court found a driver did not violate California Vehicle Code in accessing and using a navigation application on his phone while driving. The prior text was replaced last year with a new statute that became effective on Jan. 1.

It remains illegal to drive a vehicle while holding and operating a phone (or any type of “electronic wireless communications device”) unless it is “specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.” The broad loophole in state law allowing drivers to access the internet or use applications while holding the phone in their hand, however, has been eliminated.

A driver may use his or her hand to operate a phone while driving only if (1) the phone is mounted on the vehicle’s windshield use in the same manner as state law allows for portable GPS devices to be mounted or is affixed to a vehicle’s dashboard or center console in a manner that does not hinder the driver’s view of the road; and (2) “the driver’s hand is used to activate or deactivate a feature or function of the handheld wireless telephone or wireless communications device with the motion of a single swipe or tap of the driver’s finger.”

Sandra, to comply with the law, your friend needs to buy a bracket and properly mount the phone in the car. Even then, she cannot enter an address into the phone navigation app while driving. She must do this prior to driving or pull over, stop driving and then input the address. Likewise, she cannot actively use Spotify while driving. Instead, she should set her playlist beforehand and let it run.

Finally, even though the new statute closes an important loophole in phone use while driving, it is still best to turn the phone off or put it away while driving. Hundreds of thousands of serious injury crashes occur across America each year due to drivers distracted by calls, emails, texts and increasingly social media and other applications on their phones.

This week’s question comes from Lydia in South San Francisco who asks:

Q: “I was driving with my daughter in the car when a guy in an old pickup truck ran a stop sign and T boned us. I broke my arm and my back is messed up pretty bad. My daughter was in a car seat on the other side of the car from where we got hit and was cut by broken glass and shaken up pretty bad. I was hella scared that she had been badly injured because she was crying and bleeding. We both were taken to General Hospital by ambulance. My daughter was released that day without any stitches, but I had surgery to put in a steel plate in my arm and had to stay a couple of days. My car is totaled and I’m off work, not getting paid. The guy’s insurance company says that he has only $15,000.00 insurance on his truck. I know he is a painter because there were ladders and paint in his truck and on the ground. I have pretty good insurance, but I don’t know if it pays for my medical bills. The other guy’s insurance company wants me to sign off to get his $15,000.00. This is really stressing me out. What are my options?”

A: Lydia, thank God you and your daughter are alive. It’s bad enough that you got injured but, like many of my clients, you were hit by someone who was minimally insured and, therefore, there are a lot of variables that need to be analyzed in order to determine if there is other available insurance to help cover your injuries and those of your daughter.

Under the law you are entitled to recover all medical expenses for you and your daughter, your wage loss, property damage, and other quantifiable economic losses. Additionally, both you and your daughter are each entitled to compensation for your personal non-economic injuries such as pain, suffering and emotional distress. The law also recognizes that, in addition to recovering compensation for the harm which you suffered because of your injuries, when you witness a loved one be injured, you suffer a distinct and additional harm to your psyche. This is called the negligent infliction of emotional distress. We commonly refer to economic and non-economic damages as “personal injuries” Under the terms of an insurance policy these harms are referred to as “bodily injury” damages.

Liability insurance, which we all must carry on our vehicles, is designed to “cover” these types of injuries. In this case, the other driver appears to have been carrying only the state minimum: $15,000.00 per person, $30,000.00 per occurrence. This means that the insurance company, no matter how great the harm, is responsible to pay no more than $15,000.00 to any one person, and no more than $30,000.00 to everyone who may have been harmed in the same accident. Therefore, if the other driver’s insurance company is telling you that there is only a total of $15,000.00 available to cover the injuries for you and your daughter, they are not telling you the whole truth. Your injuries warrant payment of the $15,000.00 without question and, there is up to $15,000.00 to pay for your daughter’s injuries too.

The state minimum also requires that a driver have coverage of up to $5,000.00 for property damage caused by their negligence. A negligent party must pay the lesser of the amount to repair the car or its fair market value (the cost of a similar replacement vehicle). Property damage coverage also pays for towing, storage and usually the cost of a rental vehicle until the car has been repaired or it has been “totaled” and the fair market value has been paid. Therefore, up to $5,000.00 is also available to compensate for your property damage.

Your recovery is not limited to the driver’s insurance. If the driver has assets, such as real estate, you may look to those assets as a way of receiving full compensation.

If the driver worked for a painting company, even if he was off duty, his employer may be liable for his negligent conduct. Under the law, if someone is in the “course and scope” of their employment [on the clock and working] at the time of a collision, or they were using their vehicle for the benefit of their employer, such as carrying paint, ladders, etc. for work the next day or next job, then their employer is responsible for the harm they cause. Many employers carry a “Certificate of General Liability” which is, in essence, business insurance. Therefore, this avenue must be fully investigated before you consider whether to settle your claim or not.

If there are no assets, and there is no employer liability, you then must examine your own insurance policy to see whether you have “uninsured,/underinsured” (UM/UIM) coverage. This is insurance which you purchase to compensate you if you are injured by someone with no coverage or inadequate coverage. For example, if you have $100,000.00 per person, $300,000.00 per occurrence in UM/UIM coverage, and he has a $15,000.00/$30,000.00 policy, you have an additional $85,000.00 in available insurance for each of you from your own policy. (I highly recommend that everyone carry a large UM/UIM policy as approximately 25% of all California drivers are uninsured and many more are underinsured.)

You also may carry “comprehensive’ coverage which can provide additional funds to compensate you for your property loss above the $5,000.00 state minimum.

Depending on how “good” your insurance is, you may have “medical payments coverage” (med-pay) which provides for some money to help pay your medical bills. This is not usually a large amount but every little bit counts. Making a claim against your own policy for UIM or med-pay coverage should not increase your premiums.

I suggest that you speak with a good Trial Lawyer before accepting any offer. You have a serious injury deserving of serious compensation and the driver’s insurance company is not going to act in your best interests.

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. The recovery of damages is generally proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a a major caveat: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect. Additionally, even when no local ordinance exists, it would be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In this case, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance.

This week’s column focuses on a recent incident about which we have received a number of inquiries. On Sept. 18, a Redwood City police officer en route to a reported crime scene lost control of his patrol vehicle and struck a pedestrian standing in the median of El Camino Real, as well as two other cars approaching from the opposite direction. The pedestrian was hospitalized with critical injuries. Readers have reached out wondering who bears responsibility when an officer-involved accident results in serious injury.

In general, the California Vehicle Code (CVC) regulations apply to all drivers, whether or not they are acting in a law enforcement or other public capacity. However, an exception provided in CVC Section 21055 applies when an authorized emergency vehicle is either: (1) responding to an emergency call or fire alarm; (2) engaged in rescue operations; or (3) in immediate pursuit of an actual or suspected violator of the law. In any of these situations, emergency vehicle drivers are required to warn the public with red lights visible from the front of their vehicles and, when reasonably necessary, activation of sirens. This exception is designed to ensure emergency vehicles a clear and speedy pathway when the risks to the public from an emergency outweigh the risks to the public from the emergency vehicle’s haste.

Municipalities may also establish “general orders” governing local practices for handling emergency vehicle responses in line with CVC requirements. For instance, Redwood City Police Department’s General Order 316.4 further requires officers to “reduce speed at all street intersections to such a degree that they shall have complete control of the vehicle” and to “elect to respond to the call without the use of red lights and siren at the legal speed limit” where the officer judges that violating traffic laws would present an unreasonable risk given present road and traffic conditions.

When an officer is sued for personal injuries or property damage resulting from a vehicular accident, CVC Section 21055 may be raised as an affirmative defense, meaning an officer may avoid liability if they can prove every element of the exception. Such a legal determination depends heavily on the facts of a particular case. However, the defense will generally not apply if the officer: (1) neither received information to justify an emergency response nor reasonably determined from observation that such a response was necessary; (2) failed to warn the public by illuminating a red light visible from the front of their vehicle and, if reasonably necessary, activating a siren; (3) failed to drive with due regard for public safety given the extraordinary circumstances; or (4) exercised their emergency privileges “arbitrarily,” which courts have interpreted to mean acting either with knowledge that serious injury will probably result or with wanton or reckless disregard of the possible consequences.

In the case of the Sept. 18 crash, it appears that the officer was dispatched pursuant to a legitimate emergency, namely reports of a home invasion. However, the affirmative defense still may not apply if a court finds any of the other three conditions to exist. For example, it is not clear from available video footage whether the officer’s vehicle was operating the minimum required forward facing red light, or siren if conditions are found to warrant one. It is also unclear why the officer lost control of the vehicle and, given such a result, whether he would be found to have been driving with due regard for public safety. The narrative initially offered by the Redwood City Police Department relies on a finding of wet, slippery road conditions. However, as stated above, the Department’s own General Order requires officers to use sound judgment, including taking road conditions into account, when considering their manner of response to an emergency. The Department has turned investigation of the accident over to the California Highway Patrol.

Employers are generally liable for the negligence of employees acting within the “scope and course” of their employment. Therefore, if the officer is found to have acted negligently, the city of Redwood City can be held responsible for any injuries caused and forced to pay for legal damages. However, if a court finds the officer to have acted with knowledge or wanton and reckless disregard that serious injury will probably result, this level of culpability may be found to be outside the “scope and course” of his employment, relieving the city of employer liability.

The city may also be found liable for the legal damages involved in this accident if it is found to have resulted from a vehicle defect and a court finds the Department failed to properly maintain, inspect, or repair the patrol car. If the car is found to have been defective upon purchase, the manufacturer and dealer may also bear responsibility under a products liability theory.

This week’s question comes from Becky M. in SoMa who asks:

Q: “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 schoolbus 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?”

A: 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 schoolbus 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 schoolbus and shall not proceed past the schoolbus 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.

Several Bay Area News agencies have reported that a Redwood City Police Officer hit a pedestrian and two vehicles while responding at high speed to reports of a home invasion crime. According to the reports, the incident took place at approximately 10am on Wednesday, September 18th while the officer was responding from the vicinity of James Avenue and El Camino Real to the 300 block of Poplar Avenue.

Here are two links to related news stories:

Pedestrian Seriously Injured In Redwood City Police Officer Crash

Redwood City Accident: Police officer spins out on wet road striking pedestrian, colliding with 2 other cars

This week’s question comes from Karen in the East Bay, who writes:

Q: “Chris, I need your advice. I took my car to a neighborhood car wash. While I was going through the wash, the car behind me accelerated and rear-ended my car. At the time, I was reaching for papers in the glove compartment. The force from the collision, while not great, was enough to shove my head into the dashboard. I ended up with a nasty gash above my eye that required stitches and may leave a permanent scar. I also suffered a neck injury, which hopefully will heal through physical therapy. I don’t know how the driver of the car behind me hit me. It might not matter. He doesn’t have car insurance. The car wash owner claims he has no responsibility because there was nothing wrong with the car wash’s machinery. My friends joke that I got into a collision inside a car wash. I am not laughing. Incredibly, I am already looking at more than $10,000 in hospital and medical bills. What should I do?”

A: Karen, I am sorry to learn of your injuries and how others have reacted. Often, an accident that can appear to some as only having caused a minor injury can actually have resulted in a significant injury.

At the outset, is there a police report? If not, go to the station nearest the car wash and have them fill one out. Insurance company that handle auto-related claims will want to see a police report.

You should reach out to the car wash’s liability insurance company. The manager should be able to give you that contact information. Since the incident occurred on their property, they most likely have medical payments coverage, which helps defray medical bills, regardless of who is at fault, for injuries suffered on the premises. There is no deductible for this coverage. Call now to get this benefit so your credit doesn’t get hurt for unpaid medical bills.

Hopefully you had auto insurance on your vehicle. Auto insurance falls into five basic categories: liability coverage, comprehensive coverage, collision coverage, uninsured/underinsured motorist coverage and medical payments coverage.

Liability insurance covers a driver who causes an accident. Comprehensive insurance covers damage or loss due to a non-accident, such as theft, falling trees and cracked windshields. Neither liability nor comprehensive coverage applies in your situation. However, the other three types of auto insurance, to the extent that your purchased them, are relevant.

Collision insurance repairs or replaces your car if it is damaged in an accident regardless of who is at fault. Your collision policy should cover the damage to your car, minus your deductible. If you get hit by an at-fault driver who has no insurance or inadequate insurance, uninsured/underinsured motorist coverage may pick up the difference to the level of your coverage. Uninsured/underinsured coverage will compensate you for past and future medical expenses, lost wages and your physical and emotional pain and suffering.

If your auto policy includes medical payments insurance, your auto carrier may help pay off some of your outstanding bills. Make sure that you confirm the limits and procedures for receiving reimbursement from your carrier.

Karen, I also suggest you consult with an experienced trial attorney to review your case. The damages you suffered may exceed the various vehicle policies particularly if you need plastic surgery to remove the scar above your eye or your neck requires injections or surgery. The culpability, if any, of the business needs to be evaluated.

Under California Civil Code, Section 1714, “Everyone is responsible, not only for the result of his or her willful acts, but also for any injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person …”

All businesses owe a duty to protect their customers from unreasonable risk of harm or injury. It’s imperative that car washes inform customers — through either clear, visible signage or an attendant — when to enter, stop and place their vehicle into either neutral or park. Believe it or not, we have handled several serious car wash injury cases involving injury to the attendant as well as those involving harm to the drivers. In the wrong combination, cars, water, soap and machinery can be deadly.

A skilled trial lawyer should put the car wash on notice that an investigation is underway and request that all video and photos taken on the date of your injury be preserved. They should also inspect the car wash and develop a clear understanding of how the collision occurred.

This doesn’t require a law degree, just the cost of a car wash. An iPhone or GoPro can record the signage and sequencing. Often, car washes video record their operations. Your attorney should evaluate whether clear warning signs were displayed at drivers’ eye level at the entrance to the car wash. Were the instructions only in English? As we live in a multi-lingual society, the issue of language should be evaluated along with whether there was an attendant stationed near the entrance of the car wash to confirm the driver saw and understood the instructions and put the car in neutral.

We have seen situations where, in a fully automated system, the light said enter before the car in front had cleared the wash. We have also seen situations where the car wash attendant, being distracted, kept waiving a car to keep proceeding forward as the car hit the one in front of it. Likewise, we have seen situations where people feel the bump of the roller and, having left the car in drive, hit the gas (thinking they were breaking) slamming into the car in front of them.

Karen, I hope that you heal quickly. In the meantime, follow the instructions above to best protect and preserve your rights.

This week’s question comes from Mayra B. in the Presidio, who asks:

Q: “I was recently rear-ended by a vehicle while I was stopped at a red traffic light. My car was wrecked and my leg was injured. I thought this would be an easy process as I didn’t do anything wrong. However, when I called my insurance company, they said my policy had lapsed. I was surprised to hear this because I always pay my car insurance on time; however I had recently moved to a new place and had not realized that I had forgotten to pay my insurance premium. After speaking to a lawyer, I found out that I could sue the other driver to get my car repaired, my hospital bills paid, and my time off work paid, but I cannot obtain compensation for my pain and suffering. How is this possible? It was not my fault.”

A: Mayra, thank you for your question. Unfortunately, the information your lawyer gave you is correct. In 1996, California voters passed the Personal Responsibility Act, known as Proposition 213, codified in the California Civil Code Sections 3333.3 & 3333.4. Prop 213 bars uninsured drivers from recovering for non-economic damages if they were not insured at the time of the collision.

California Civil Code Section 3333.4 states: “in any action to recover damages arising out of the operation or use of a motor vehicle, no person shall recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if . . . [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.” You may be wondering, “How could this be?”, especially for someone like yourself who only experienced a momentary lapse in insurance coverage. The answer is that Proposition 213 was framed as a law intended to punish drunk drivers and fleeing felons from obtaining compensation for pain and suffering. However, many voters did not realize that the proposition also sandwiched uninsured drivers between the drunk drivers and fleeing felons.

As a result of Prop 213, California law now restricts damages for injured car owners and drivers in three situations: 1) where the driver themselves is convicted of DUI; 2) where the driver owns the vehicle and does not have the state minimum liability insurance at the time of the accident; and 3) when injury is sustained while committing a crime or fleeing from a crime which they are later convicted of as a felony.

Under Prop 213, an uninsured driver can still obtain compensation for special damages. Special damages are items that are quantifiable such as property damage, medical bills, and loss of earnings. However, the law restricts the uninsured driver from obtaining compensation for non-economic damages such as pain and suffering, physical impairment, disfigurement, inconvenience, and emotional distress.

There are some exceptions to the restrictions Prop 213 imposed. For example, a car owner or driver who does not have insurance coverage may recover for their non-economic damages if he/she was operating their employer’s uninsured vehicle, since the responsibility to insure the vehicle falls on the employer, not the employee driver. Another exception allows noneconomic damages when the accident occurs on private property, because state law only requires drivers to have auto liability insurance to drive on public roadways, not on private property. Prop 213 restrictions will also not apply if a driver borrows a vehicle that does not have insurance coverage, but the driver did have insurance coverage on another car. Lastly, Prop 213 does not apply to a passenger who was injured while riding in an uninsured vehicle. Unfortunately, there is no exception for drivers who were uninsured due to an unintentional lapse in insurance, no matter how brief.

Due to the complexity of this law, it is important you contact a qualified trial lawyer to review the situation to see if one of the other exceptions applies to you.

If you were injured in an accident as a result of someone’s negligence, you still have the right to seek compensation for your economic damages such as your property damage, medical bills and lost wages, even if Prop 213 applies to your case. However the best practice is to make sure that you have insurance on your vehicle. Having vehicle insurance will protect you in the event that you harm someone else in a vehicle accident, but it will also allow you to be fully compensated if you are injured by another driver.

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

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Prop 213 Prevents Injured Drivers from Recovering Damages

Bumpy Road for Pothole Liability