Who is Liable When Potholes Cause Accidents?

Written By Chris Dolan and Cristina Garcia

This week’s question comes from Kathy J. in the Sunset District, who asks: After this year’s stormy winter, new potholes seem to be appearing daily. Over the weekend, I was driving to my friend’s house when I hit a pothole in the road. The pothole caused me to lose control of my vehicle, and I eventually crashed into a tree. The impact destroyed the front of my car and deployed my airbags. I vaguely recall the police officer and ambulance arriving. At the hospital, I was diagnosed with facial bruising, a concussion, and a broken wrist. I am unsure what my next steps are, as the accident did not involve another vehicle, and I was not at fault for crashing into the tree. However, I now have large medical bills, and my car has significant property damage. Who is responsible if a pothole leads to an injury?    

Dear Kathy,

That is a great question. Potholes are more prevalent after heavy rains as the precipitation saturates the ground and causes the asphalt to break up. Government entities such as cities, counties, the State, or the Federal government own public roadways.  Therefore, the first step is determining which entity owns the road. A government entity, like any other property owner, is responsible for maintaining its premises in a reasonably safe condition. It is important to note that “reasonably” does not mean in perfect condition or that maintenance needs to occur instantaneously. However, showing that the responsible government entity had notice of the pothole is essential in establishing liability. 

Many cities and counties have online portals or phone numbers where residents can report dangerous roadway conditions such as potholes. For example, in San Francisco, the SF311 Mobile App can be used to submit service requests. For this reason, it is important for anyone who comes across a pothole, whether you are a driver or a pedestrian, to file a service request notifying the government entity of the roadway condition.

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. Special rules apply when filing a claim against a government entity. The injured individual must file an administrative claim before filing a personal injury lawsuit against a government entity. It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. Be sure to file the claim with the appropriate government office or agency. Further, it is equally important that you use the claim form of that government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.   

While the government entity can be held responsible for dangerous conditions on its roadways, it is critical to note that a non-trivial dangerous condition does not mean the city is liable for damages. Further, when a claimant can prove the statutory requirements, the government entity may still raise several defenses to defeat liability. It may argue that it exercised due care by posting warning signs to prevent vehicles from hitting potholes or claiming that it is “open and obvious”; therefore, no warning signs were necessary. 

Claims against any government agency present their unique challenges. There are strict time limits and different procedural rules that apply to government claims. For this reason, it is important to retain a skilled trial attorney to assist you in pursuing your government claim and ensure you obtain the compensation that you deserve. 

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Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?

Dear John,

There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial. 

Informal Settlement Negotiations

Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.

Mediation

If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence. 

It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.

Arbitration

Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes. 

A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case. 

Trial

A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.

If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict. 

While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months. 

However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial. 

The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.  

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Insurance Company WILL NOT PAY FOR MEDICAL EXPENSES. Here’s Why:

Written by Chris Dolan and Cristina Garcia

This week’s question comes from Patricia D. from the Mission District, who asks: I was riding my bicycle down 19th Street approaching Mission Street when a distracted driver traveling in the opposite direction struck me. He was apparently texting, driving, and traveling too fast on the roadway. When the vehicle struck me, I fell on my right side. As a result, I broke my right wrist and suffered a terrible road rash on my right elbow and shoulder area. The driver and I exchanged information before I was transported to the hospital. I recently received a call from the driver’s car insurance informing me that they would not pay for the damages to my bike or any of my medical expenses because I was at fault. Are they correct?

Dear Patricia,

Thank you for your question. Adult bicyclists have the same duties and responsibilities as motor vehicle drivers under the California Vehicle Code (“CVC”) 21200. CVC 21200 provides as follows:

“(a)(1) A person riding a bicycle or operating a pedicab upon a highway has all the rights and subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to provisions concerning driving under the influence of alcoholic beverages or drugs…”

Therefore, California laws treat bicyclists as motor vehicles that must abide by all traffic laws, which includes CVC section 21650, which provides that all cyclists must travel in the same direction as traffic. If bicyclists need to head in the opposite direction of traffic, they must walk with their bikes on the sidewalk.

For this reason, the driver’s vehicle insurance is likely denying your claim for property damage to your bicycle and personal injury claim. This denial does not completely bar you from recovering for your injuries if the other driver was also negligent. For example, suppose the police report or witnesses corroborate that the driver was speeding or texting while driving. In that case, counsel can argue that the driver’s negligent acts also caused the collision.

An issue that is likely to be raised is “Comparative Fault,” also called “Comparative Negligence.” Comparative Fault is the percentage of fault the court assigns to the injured party. California law states if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. The driver’s insurance adjuster generally assigns this percentage if the case settles pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle collision due to someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of Comparative Fault, cases involving Comparative Fault, you must contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries.

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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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Do I Need a Lawyer Near Me if I was Involved in a Car Accident Out of State?

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from D. Conger from San Bruno who asks: While traveling in Washington, I was involved in a motor vehicle collision that resulted in injuries. The funny thing is that I found out the person who struck my vehicle was from San Jose.  I had initial treatment in Washington and more once I returned home. In addition, I have missed a substantial amount of time from work. I would like to seek compensation for this collision but don’t have the energy to try and find an attorney up there. Do I have to have an attorney from the state of Washington represent me?  

Dear D.,

I am sorry to read about your ordeal and wish you a speedy recovery. With the summer months upon us, research shows that summer travel is returning to pre-pandemic levels. The most recent data on summer travel suggests that it will be busy this year, as a recent survey from The Vacationer found that nearly 81 percent of Americans were planning to travel. According to Janeen Christoff of Travel Pulse, road trips remain one of the most popular forms of travel in a post-pandemic world. The nearly 80 percent of travelers who said they were going to take a road trip make up approximately 206 million Americans. Almost 20 percent will travel more than 500 miles from home by car. Also, nearly 7 percent say they will take road trips more than 1,000 miles from home.

With all those people on the road, collisions are bound to occur across state lines.

The simple answer to your question about whether you need local counsel, is that it depends. In most cases, while you live out of state, you may need to hire an attorney licensed in the state where the collision occurs to represent you. However, that is not always the case.  

The correct venue (the county or district where a case must be heard) is one of two places. It is where the injury-causing event occurred, in this case, the motor vehicle collision, or where the defendant resides.  If one were to elect where the defendant resides for your case, that would be Santa Clara County, here in California. In that case, you would not need to find an attorney up in the state of Washington. However, the important thing to remember is that in most cases, the laws of where the collision occurred would still apply; in this case, that would be the state of Washington. Some attorneys are comfortable dealing with the laws of other states, and some are not. 

However, let’s assume that the defendant was a resident of the state of Washington. Again, local counsel would be required, but you could still hire someone from California. In that case, the attorney, if they agreed, could seek to get “pro hoc vice” (Latin for “on this occasion”) into the State of Washington. If the court grants the motion, the California attorney, with the supervision of the local attorney, would be granted a temporary license to practice in the state of Washington, but only on your case. In most instances, the California attorney you select will already know someone in the other state, which is why they agreed to accept the case. You would not need to try and find two attorneys. 

With the advancement of technology and courts allowing for remote appearances, it is now as easy as ever for attorneys to represent clients in different states. For example, all attorneys at our firm are licensed in California. However, some are licensed in Oregon, Washington, Georgia, Arizona, Texas, and Massachusetts. We have handled all aspects of litigation in these states, including trials in some. 

Finally, an attorney in California may hold licenses in other states, allowing them to practice in multiple jurisdictions.  Essentially, this means that even though the attorney of your choice resides in one state, if they hold a license in another, they can freely practice there, as if they were local. 

Remember, no matter who you choose to represent you, be sure to document everything, lost earnings, medical treatment, and symptoms, and provide them to your attorney. As a team you will work together to get the best result.   

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What Should I Do After Witnessing a Car Crash?

Written By Megan Irish and Christopher B. Dolan

This week’s question comes from Kevin who asks: I recently witnessed a car crash where a truck ran a red light and hit a woman in a small SUV. The truck completely ran the red and hit the woman. She had the green light, and I saw that the pedestrians walking her way had 8 seconds on their count down. I stayed at the scene and gave the injured woman my contact information, but I couldn’t stay long because I had my little boy with me and did not want to stand on the street for long. I also told her I saw that the truck ran the red and hit her, but I wondered what else I could have done to help. What do you think is helpful to do when you see a car crash?

Dear Kevin,

Thanks for staying and telling the injured person what you saw. In terms of what you can do as a witness, there are many things. First, make sure you are safe to stop at the scene of a collision. If it is not safe, you can call 911 and report the crash and provide a statement about what you saw. You can describe where you were and what you observed. Sometimes the investigating officer will call you back and conduct complete interview about the collision. They will refer to you as a witness in the traffic collision report and summarize your statement to them in the report. Be honest and as straightforward as you can be. Provide any specific details you can. However, if you can stay at a scene and speak to the people involved, that is great too.

When you observe a collision, here are a few things to look for:

Look at where pedestrians are walking, and cyclists are riding. Can you see the traffic signal light, and if so, what color is it for whose direction of travel? Are there protected turn lights for left-hand turning vehicles, and if so, what color are they? Can you see the count down for pedestrians crossing the street? if so, on what number is it? Was the driver avoiding any hazards? If so, what is it, where did it come from, and where did it go? Was the hazard also involved in the collision? Where are the involved vehicles stopped? Can you note the license plates? Are the drivers involved staying at the scene or trying to leave? Do you have a camera on you? Can you safely take some photos? Or a video?  If you can take pictures, try to capture the locations where the vehicles came to rest. Take photos of any debris that came off the cars, and any skid marks associated with the collision. Take pictures of the license plates of the vehicles involved in the crash, and the people who were driving the cars. If you have time and can capture the color of the light before it changes, that can be helpful too. Watch the traffic lights cycle through. Are there any problems with them, such as the same color showing for both directions at once? If that happens, then definitely try to get a video and bring it to the attention of the people involved in the collision, as they will need to try and get a video to provide to their insurance. Although this is a long list of things to remember to do, this information can be helpful when explaining who had the green and who had the red lights. If a person is badly injured, they may leave the scene in an ambulance, and they will not be able to relate what happened to the police. Any statements you provide can be helpful to the investigating officers and or insurance companies to understand how the collision occurred and who was at fault.

Liability

Determining who was at fault is crucial to establishing liability for a matter. Liability is the legal term for who is responsible for the collision and whose insurance company need to cover the costs of the repairs to the vehicles and the injury to the people. Liability is frequently ‘disputed,’ meaning insurance companies cannot determine who caused the collision. Therefore, they wait on making any payments until they can establish more evidence to prove one vehicle was responsible for the other. For instance, in the collision you observed, where one car ran the red light, it will be necessary for the person who had the green light to prove they had the green light to the other driver’s insurance. The parties typically dispute red light-green light cases, and an independent witness statement, such as your own, can be very helpful. The insurance companies will call you after a collision, and your statements will help the at-fault driver’s insurance take responsibility for the damages to the injured party. 

It is significant that you stayed and relayed what you observed. Your statement was likely beneficial to the drivers involved and is appreciated by those involved in a collision. 

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Distracted Drivers Increase the Changes of Deaths and Injuries in California and U.S. Roads

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from M. from Daly City who asks: I recently received a call from my son, saying he was involved in an “accident.” Luckily, he is fine. He went on to say that the other driver was looking down at their phone, not paying attention and rear-ended him. I always thought of “accidents” as being unavoidable; this seems like the driver could have avoided it. Was it really an accident?  

Dear M.,

I am glad to read that your son is fine, and that is the most important thing. But you are correct. Over the years, we as a society seem to have found a way to excuse peoples’ negligence by classifying them as an “accident.” Using a cell phone while driving creates the potential for deaths and injuries on California and U.S. roads. The underlying thought is that “they didn’t mean for it to happen,” so it was an “accident.”  As a society, we need to get away from alleviating someone’s fault by classifying their actions as a an “accident” and look more closely at the underlying conditions. 

Accident has two meanings:

  1. an unfortunate incident that happens unexpectedly and unintentionally, resulting in harm, and
  2. an event that happens by chance.

In the situation involving your son, people would say that the first definition would apply to the driver that caused the collision; but let’s think about that. The cause of the crash was an inattentive driver who was intentionally using their phone and not paying attention. Though they may not have intentionally struck your son’s vehicle, everything else leading up to that was intentional. Therefore, the outcome should not have been unexpected. Why would we consider this to be an accident?

Secondly, accidents are supposed to happen by chance or be random. But studies are finding this not to be the case. 

In a recent interview with Marin Cogan, Jessie Singer, author of the new book There Are No Accidents, talks about the term “accident” and explains “[t]here are a lot of problems with it. Accidents are supposed to be random, right? And unpredictable. If that were true, then accidental death would be randomly distributed across the country, but it’s not. When we look at the data, we see that Black and Indigenous people and people living in poverty die by accident most often.”

The Governors Highway Safety Association proved this statement to be true. They published an Analysis of Traffic Fatalities by Race and Ethnicity in June of 2021. In that analysis, several studies were reviewed and cited to, some of which were: 

  • Motor Vehicle Traffic-Related Pedestrian Deaths – U.S., 2001–2010 (Naumann and Beck, 2013), wherein the Centers for Disease Control and Prevention (CDC), which analyzed 2001–2010 data from the National Vital Statistics System (NVSS). 
  • Socioeconomic Differences in Road Traffic Injuries During Childhood and Youth: A Closer Look at Different Kinds of Road Users (Hasselberg, et al, 2001) a Swedish Study. 
  • Vision Zero Chicago: Action Plan 2017-2019 (City of Chicago, 2017) and  
  • 2015-2019 Fatality Analysis Reporting System (FARS data). 

They found that Blacks, Indigenous and People of Color are disproportionately represented in fatal traffic crashes. Key findings from the research indicated that: 

  • When measured against all causes of death, motor vehicle traffic crashes account for disproportionately large percentages of fatalities, particularly among Native American and Hispanic persons. 
  • Black children ages 4–15 had the highest fatalities involving pedestrians and other people not in vehicles as a percentage of all motor vehicle traffic fatalities. 
  • American Indian/Alaskan Native persons have the highest annualized, age-adjusted traffic-related pedestrian death rates of all races/ethnicities. 
  • Census tracts where low-income and minority populations are more concentrated have measurably higher levels of vehicle traffic and higher speed arterials. 
  • A Swedish study found the injury risk for pedestrians and bicyclists was 20% to 30% higher among the children of manual workers than those of intermediate and high-level salaried employees, indicating socioeconomic status can influence the risk of motor vehicle crash involvement. 

Beyond race, socioeconomic status can influence the risk of motor vehicle crash involvement. The City of Chicago’s 2017 Vision Zero Action Plan included a reference to public health data that show traffic crashes affect Chicago communities unequally. Chicagoans who live in areas of high economic hardship have an increased risk of being in a severe crash and die in traffic crashes more often and at a higher rate than other city residents.

The key findings from the analysis of 2015-2019 FARS data: 

  • Compared with all other racial groups, American Indian/Alaskan Native persons had a substantially higher per-capita rate of total traffic fatalities. 
  • Black persons had the second-highest rate of total traffic deaths. This rate was true for total traffic deaths, pedestrian traffic deaths and bicyclist traffic deaths.

When interpreting the disproportionate representation of race and ethnicity in motor vehicle crashes and traffic fatalities, we must recognize that ethnicity and race, to a certain degree, are intertwined with other factors that affect crash risk. Risks include as socioeconomic status and overall investments in crash prevention where people live. These investments include roadway infrastructure, traffic enforcement, community engagement and traffic safety education. None of which is random nor unexpected.

At the end of the day, as Jessie Singer has indicated, “[w]hen we say “it was an accident,” we’re saying it wasn’t my fault. It wasn’t their fault. In doing that, we’re almost always focusing on the wrong thing and setting up the same accident to happen again.” 

We as a society need to start focusing on right thing; we can start by not calling everything an accident.

 

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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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The Difference Between Personal Injury and Workers’ Compensation

Written By Christopher B. Dolan and Megan Irish

This week’s question comes from Kisha J. from San Francisco who asks: Hi, my friend Angelino is a garage door repair man, and he recently got hurt while on a job. While he was up on the ladder working on the overhead door opener, the homeowner put several boxes behind his ladder. He fell on them when he came down the ladder and broke his ankle. He said he has been off work for a couple of weeks now and is making a worker’s compensation claim. I think the homeowner has some responsibility too, because he would not have fallen and broken his ankle if he hadn’t put boxes behind him.  Is the homeowner responsible too?

Dear Kisha,

Your friend’s claim may be both a workers compensation claim and a third-party personal injury claim. The two types of claims are compatible and can be made simultaneously. In the most basic sense, a worker’s compensation claim is more limited in the compensation available, but it is often very quickly awarded, and there is no consideration of the injured party’s fault. Third-party personal injury claims often yield more compensation, but usually take longer and will examine the injured party’s own role in the cause of the injury and harm.  

The worker’s compensation system is a “no fault” system. So long as the injury occurred while a person was at work, it does not matter who caused the injury. One does not need to prove that the employer or co-workers did anything wrong. Even if the injured party did something wrong, they are still usually covered. The workers compensation system has limited coverage though and is only available to cover medical costs and replace a person’s lost wages. Workers’ compensation claims do not cover general damages.  

In a third-party action, when someone is at fault for doing something wrong, the harmed person can seek to recover both special and general damages. In a third-party action the injured party must prove that a third party was negligent, and that the third party’s negligence caused the injury. For example, failing to stop at a red light causing a vehicle collision would likely qualify as negligence by another that caused harm to the injured party. In such a case, special damages are available and cover, in very general terms, things the injured person has receipts for, such as medical bill and lost wages. Moreover, in a third-party action one can also seek to recover general damages, which are typically referred to as pain and suffering. The law includes physical and mental pain and suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress as elements of general damages. 

Generally speaking, third-party cases, are brought when someone other than the employer or coworker was negligent. The most common instances where an employee will bring a third-party action for injuries that occurred when they were working, are for defective products (action where a claim is made against the manufacturer of the product used to do a job), the injury was caused by a toxic or illegal substance, the employer did not carry worker’s compensation insurance, or the injury was caused by a third-party who was not a part of the company.

Workers Compensation and third-party personal injury claims can be brought at the same time. When they are, then the third-party claim may be required to reimburse the workers compensation claim. For example, if all of your friend’s medical bills have been covered in his workers compensation action and he makes a claim for the medical special damages in his third-party action, the worker’s compensation matter may seek reimbursement for what has paid out to your friend as replacement wages. The idea here being that the injured party should only recover his lost wages once. If he receives wage replacement from workers compensation, that is also later paid by the third party, it is only fair that the compensation system be reimbursed.  

While most jobs have worker’s compensation coverage, there are two categories of employees who do not receive coverage for injuries at work under a workers compensation plan. Those two special categories are interstate railroad workers and crew members on boats. The railway workers can bring an injury claim under the Federal Employers Liability Act, and vessel crew members can bring injury claims under the Jones Act.  

In this situation you’ve talked about the homeowner could face a claim as a third-party defendant. To bring a matter against the homeowner, the homeowner’s actions would need to be evaluated to establish if the actions were negligent. An attorney would need to evaluate the circumstances of your friend’s fall and see if there is a cause of action against the homeowner.  We wish your friend a speedy recovery.

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