Will Bicycle Accidents Increase as E-bikes Get Popular?

Written By Christopher B. Dolan and Nancy A. Villatoro

This week’s question comes from Anonymous who asks: As gas prices continue to soar, I am thinking of getting an e-bike to get around and commute to work. I have noticed more cyclists on the roads, many of them riding e-bikes. Some of them seem to be going faster than their pedaling indicates and as they overtake other cyclists. Some riders don’t even seem to be pedaling, yet they are moving faster than other cyclists around them. I am still on the fence on getting an e-bike since I do not know which bike to get. Do you think bicycle accidents will increase as more e-bikes join the traditional pedal bikes?

Hi Anonymous,

Thanks for your question. In the United States, AAA reported that the average national price for a gallon of regular gasoline hit $4.33, in March of 2022, which is the highest national average ever, not accounting for inflation. Similarly, in California, the highest recorded gasoline price for a gallon of regular unleaded hit $5.91 on March 29, 2022. By the time you read this, it is likely that prices will be higher. With gas prices rising, people across the state and country are turning to alternative wallet-friendly ways to get around town through carpooling, public transportation, electric vehicles, or more popular today and electric bicycles.

Electric bicycles, or e-bikes, are selling faster than expected for the first quarter of the year, above the already high expectations set by the pandemic boom. While many factors may be affecting the boom, such as eased pandemic restricts and workers returning to the office, many merchants point to fuel prices as a contributing factor.

In California, an e-bike is a conventional bicycle with operable pedals and an electric motor that does not exceed 750 watts. It must also not exceed 28 mph on leveled ground. The e-bike motor must cease to function when brakes are applied. The e-bike law prohibits users from modifying electric bicycles to change the speed limit. The law defines electric bikes into three-tier classifications: Class 1, 2, and 3.

Slow-Speed Rechargeable Bicycles Are Comparable to Regular Bikes – Class 1 and 2 e-bikes (with maximum supported speeds of 20 miles per hour) are typically allowed any place regular bicycles are permitted unless there is a posted sign that specifically bans e-bikes. The difference between Class 1 and Class 2 is that Class 2 e-bikes come with a motor controlled by a throttle, which allows the e-bike to be powered without pedaling.

The Exception of High-Speed Vehicles – Class 3 bicycles have top supported speeds of 28 miles per hour. They cannot be utilized on bike paths or trails unless it is permissible by local municipalities. (California Vehicle Code §21207.5.) These types of e-bikes could be used on bike lanes and/or detached bikeways next to a road unless otherwise regulated by local municipalities. Additionally, these also require the use of helmets and cannot be used by riders under the age of 16.

Severe injury accidents increase with higher driving speeds and more people on the road. As detailed in our previous article on March 25, 2021, “Have fun and stay safe on an electric bike,” riders can stay safe on the road by obeying all applicable traffic laws designed to keep those on the road safe. Riders should maintain a safe speed, which means not always reaching the maximum speed allowed by the particular e-bike they ride. E-bikers should always be vigilant of their surroundings, including weather conditions, road conditions, pedestrians, vehicles on the road, and other cyclists. E-bikers should err on the side of caution and wear helmets, even though that might not be required. They should consider wearing brightly colored clothing, making them more visible to others on the road. Riders should use a bell when passing other cyclists or pedestrians to ensure that their presence is known.

Riders should familiarize themselves with their e-bikes before jumping onto the road confidently. Users should take their time, perhaps practicing in an empty parking lot before venturing onto a busy road at high speed. Riders should become familiar with the different pedal-assist settings that many e-bikes have. E-bikes can accelerate rapidly, which can be dangerous for riders not used to sudden momentum changes. A lower pedal-assist setting could help users adjust to the e-bike’s increased acceleration. E-bikers should practice braking from high and low speeds, which may also be a new experience for those accustomed to traditional bicycles. And finally, if riders plan to ride where others are present don’t forget to use your helmets and have fun. For more bike safety tips see our Dolan Law Firm bike safety guide tips.

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.

Written By Christopher B. Dolan and Kimberly E. Levy

This week’s question comes from Kate R. from Oakland: I was rear-ended on the freeway a few days ago and the driver that hit me fled the scene. The police took a report but have not been able to identify the other driver. I ended up in the hospital with some serious injuries. I am not going to be able to go back to work for a few weeks, at least. The bills for my medical care are going to start piling up. I have no idea what to do. Please help.

Thank you for reaching out, Kate. We’re sorry to hear about what happened to you and hope that you make a speedy recovery. Navigating the claim process for a hit and run case can be complicated. The good news is that you may have purchased several types of insurance coverages that can help you through this difficult time.

Medical Payments Coverage (“Med Pay”):

What is it?

Med pay is an optional coverage that is part of your individual car insurance policy. Med pay covers reasonable and necessary medical bills when you (or your passengers) are injured in an accident. Med pay will even cover your reasonably necessary medical expenses if you are injured as a pedestrian or passenger in someone else’s car. This coverage applies regardless of who is at fault for the collision.

How does it work?

There are two ways that med pay typically works:

You go to the medical provider of your choice and the provider bills the med pay directly as if it were health insurance; or
You submit bills and records to your insurance company for reimbursement of paid or outstanding bills.

Why do I need this coverage if I have health insurance?

There are several reasons this coverage is useful even if you have health insurance.

First, health insurance often leaves you to pick up the tab for co-pays and co-insurance amounts. With med pay coverage, you can be reimbursed for these out-of-pocket costs.
Second, med pay enables injured people to seek treatment that would not normally be covered by their health insurance policy, i.e., acupuncture, massage, and other alternative treatments.
Finally, med pay allows you to seek a second opinion by a medical provider of your choice which is often beneficial when your health insurance coverage is an HMO plan.

Uninsured/Underinsured Motorist Bodily Injury Coverage (“UM/UIM”):

What is it?

Uninsured/underinsured motorist coverage applies when another driver is at fault for a collision but either has no insurance or not enough insurance to cover the injured person’s medical bills and other damages. Importantly, this coverage also applies in hit and run cases, such as yours, when the identity of the at fault driver cannot be ascertained.

In order to protect yourself against hit and run drivers, uninsured drivers, and drivers carrying the minimum amount of liability insurance (which is $15,000 in California), it is best to make sure you protect yourself with uninsured/underinsured coverage.

How does it work?

With this coverage, your own insurance company covers your losses as if it were the at-fault driver—the insurance company steps into the shoes of the at-fault driver. In a UM/UIM case, you will make a claim against your own insurance company up to the amount of your purchased coverage. In some ways, UM/UIM cases are advantageous. Because you are in a contract with your insurance company, your insurance company has a duty to treat you fairly and regard your interests equally as its own interests. Unfortunately, you will not be entitled to a jury trial on these cases. UM/UIM cases are typically resolved by settlement or through an arbitration process (trial in front of a neutral “judge” agreed upon by the parties).

If you are injured in a hit and run accident, specific rules apply in order to trigger UM coverage.

First, there must have been contact between your vehicle and the hit and run vehicle.
Second, within 24 hours after the accident, it must be reported to the police for the jurisdiction in which the accident happened.
Third, within 30 days of the accident, you must provide your insurance company with a sworn statement that you were injured and that the person causing injury is unknown. Facts explaining the same must be provided in the sworn statement. Typically, a copy of the police report showing hit and run will be sufficient to meet this requirement.

These requirements are set forth in California Insurance Code section 11580.2(b)(1) and (2).

Will making a claim increase my insurance premiums?

In California, it is illegal for an insurance company to raise rates when a policyholder brings a claim and was not at fault. (California Insurance Code Section 491). As long as the other driver was the cause of the accident, your premiums should not increase. If there is an increase in the cost of your coverage based on claims activity made necessary by the fault of another, this should be reported to the California Department of Insurance.

Do not concern yourself with the fact that payment is coming from your own insurance company versus the adverse driver or his/her/their insurance company. This is coverage that you have paid for and the insurance company is best equipped to bear the loss. The insurance company is free to seek reimbursement from an uninsured driver should that be feasible.

How long do I have to resolve my case?

Generally, in a UM case, you have two years from the date of the incident to either settle your claim or make a “demand for arbitration” – a process where you formally notify your insurance company that you would like to resolve your case by arbitration. Your insurance company has an obligation to keep you informed of these deadlines and requirements throughout the process.

So often, we think of insurance as a means to protect our assets and property. It is equally important, however, to remember to protect yourself against uninsured and underinsured motorists who may cause you harm. Review your insurance policy to see if you have the applicable coverage.

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from Julia L. in Pacific Heights, CA, who asks: I am a frequent city bus rider who rides to work every day. While on the bus last week, I felt a sudden acceleration through the intersection followed by a strong impact on the right side of the bus, where I sat. The crash surprised me because I was reading an email at the time of the collision. When I looked up, the traffic light facing the bus was red, and there was a truck smashed into the side of the bus. At first, I was okay, then felt an unbearable pain in my right arm. The paramedics informed me that I had a broken arm and needed immediate medical attention. I had surgery and stayed overnight at the hospital. I have significant medical bills and missed several days of work due to the accident. Although the police report is not ready, based on the statements I heard from eyewitnesses, it appears that the city bus ran the red light. I have heard special rules apply when pursuing a personal injury claim against government entities, such as a city bus. However, I am not sure what are my next steps. How do I file my claim against a government entity?

Hi Julia,

This is a great question. Many people are unfamiliar with the unique requirements an injured person must comply with before filing a lawsuit against a government entity. Generally, the statute of limitations (the period when a lawsuit can be filed) is two years from the date of the accident or injury in California. However, special rules apply when a government entity is responsible for the injury. When pursuing a personal injury claim against a government entity, in your case the City or County, you must first file a special claim often referred to as an “administrative claim” with the government office or agency before you file in court.

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. It must be filed with the appropriate government office or agency. Please note that you must use the claim form of the particular 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.

After filing your administrative claim, the government entity has 45 days to accept or reject the claim. If the government rejects all or part of the claim or does not respond within 45 days, the injured person can file a lawsuit in court. If the government entity rejects the administrative claim, the injured person only has six months from the date of the rejection letter to file a lawsuit.

If you are successful in your claim against the government, you can seek financial compensation for your injuries, including medical bills, loss of income, property damage, and pain and suffering. However, the statute of limitations for government claims can be complicated. Therefore, we highly encourage you to seek legal representation to ensure that you comply with all the requirements as prescribed in Government Code Section 910.

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.

Written By Christopher B. Dolan and Aimee E. Kirby

This week’s question comes from Ashely L. from San Jose: My uncle Ralph was driving his motorcycle in an unincorporated area of San Jose when he lost control and went down. It appears that the road was unkept. I am trying to help my uncle, who doesn’t even have email and is not good with using the internet, with his case. The police officer said that the road should have had a sign and a barrier, because lots of accidents happen at that location where my uncle lost control. I am not sure how we go about proving the road caused my uncle’s accident. Does whomever own the roadway have insurance, like cars do to pay claims?

Ashely, I am sorry to hear that your uncle was in the accident. The type of case you are describing is called a Dangerous Condition case. These are very complex legal cases, and they are not the kind of case that I advise that injured victims, or their families tackle alone. To prove a Dangerous Condition case, you must prove that the roadway was a dangerous condition, that the government entity who controlled or owned the road, knew or should have known about the dangerous condition, and that they had time and money to fix the condition, but did not. Your family would also have to prove that the dangerous condition in the roadway caused the accident. Dangerous condition cases can involve motorcyclist, runners on a highway, cars, trucks, or even bicycles. The Defendants in these cases are the cities or counties that own the road.

It is important to document the scene immediately with photos if the injuries are serious. The first thing our law firm does is go to the roadway in question or use the police report to pull the location up on Google Earth. Often the police reports for accidents, wherein a roadway condition may have contributed to the loss, do not document the scene well, or even mention a dangerous condition that may have contributed to the accident. We have personally litigated a motorcycle collision wherein a pothole caused the crash, yet no pothole was photographed or even mentioned in the police report. In this case, a witness was able to describe what the motorcyclist hit, and what happen to him, as our client had no memory of the crash.

After visiting the scene, the next thing your attorney should do is research the accident history through the TIMS database maintained by UC Berkley and issue a Public Records request of the county and city the subject roadway is in. The TIMS database allows you to enter in a county and city pull all accident history for the location by way of a map or a list. This can help us get an initial baseline on whether or not a dangerous condition can be proven. The number of accidents at a location, if it is higher than normal, goes to prove notice of the dangerous condition and that the location is dangerous. You want to look for similar accidents, so in your case you are looking for single vehicle accidents, as opposed to a sideswipe collision. This information is then verified with a public records request to Caltrans for the same data. The TIMS database is free, and so are public records requests typically. Remember, a court will only consider similar accidents in considering whether accident history is relevant to your case.

Another thing you and your attorney should do is get public records request from the entity that owns or controls the subject roadway. These public records requests are usually tailored to government entity claims regarding the location, complaints, roadway work and maintenance, along with evaluations done for repair of the subject roadway such as pavement index reports or permit and bidding documents. Lastly, if the case is near commercial buildings or in a residential area, often our firm will hire a private investigator to conduct additional research. Long term business owners or homeowners may have taken pictures of your alleged dangerous condition. Depending on the type of dangerous condition, these business owners or property owners may have also attended City Council meetings and demanded action or emailed the city. There have even been instances where neighbors complained to the city on social media applications like Nextdoor, which can be used.

Because these types of cases have strict guidelines regarding claim presentation and pleadings it is also advisable to seek counsel to investigate this for you. An attorney can gather this data and advise you of the likelihood of being successful in a dangerous condition case, very quickly. I hope your family continues to heal and you get answers as to what occurred that day for your uncle.

Written By Christopher B. Dolan, Steven Balogh and Nancy Villatoro

This week’s question comes from Fred in Oakland: Every year, it seems laws get changed or updated. Can you share some laws that your firm may be looking out for in 2022?

Thanks for your question, Fred. During the first of the year the California legislature and Governor enact numerous bills that affect the courts or are of interest to the judicial branch. This year is no exception and the same thing happened in 2022. This is not a complete summary of all the laws, but here are some laws that we believe are worth mentioning as they relate to personal injury and employment law:

AB 855 Judicial Holidays

Native American Day (4th Friday in September: 9/23/22) replaces Columbus Day.

SB 241 More Efficient Courts

Remote appearances are extended until 2023. The general rule that other case deadlines are also extended for the same length of time as a continuance or postponement now also applies to arbitration. Courts are required to hear minor’s compromise petitions within 30 days of filing and, if the petition is uncontested, to issue a decision upon the hearing’s conclusion.

SB 447 Pain & Suffering in Survival Actions

Updates CCP 377.34 puts a deceased person’s non-economic damages back on the table for their survivors. Applies to all causes filed starting this year through to the end of 2026. Learn more here.

SB 331 Silenced No More Act

The prohibition on NDAs in settlement agreements has been expanded from just those involving sexual harassment, assault, and discrimination to cover settlement agreements for all forms of harassment or discrimination. SB 331 also expands the prohibition on overly broad confidentiality and non-disparagement clauses to include workers who have to sign one as part of a severance agreement. This only applies to agreements made after 1/1/22.

SB 93 Rehiring and Retention

Employers are required to essentially give laid-off workers right of first refusal for their old jobs. Requires an employer to keep records of these offers for three years.

AB 1033 Expanding the California Family Rights Act

Employers with at least 5 employees must provide employees up to 12 weeks of job-protected leave from work, on an annual basis, to care for a parent-in-law with a serious medical condition.

AB 849 Undoing Jarman v. HCR Manorcare (2020) 10 Cal.5th 375

Caps violations of regulatory resident rights (at skilled nursing and intermediate care facilities) at $500 per violation. The new caps apply to violations occurring after March 1, 2021.

AB 654 Covid-19 Exposure Employer Notification Requirement

Employers must provide local public health agencies with notice within 48 hours or a business day, whichever is later, upon learning of a potential exposure event. The Employer is also required to notify the employees, customers, and anyone else on site who may have been exposed. Only applies through to the end of 2022.

AB 701 Warehouse Workers Quota and pace-of-work standards Disclosures

Requires disclosure of quotas and workers cannot be fired or retaliated against for falling to meet an unsafe quota. The bill focuses on the relationship between quotas and incidence of workplace injury.

SB 762 Arbitration Invoice Payment Requirements

Amends Code of Civil Procedure §§ 1281.97 and 1281.98 to change the default rule to all arbitrator invoices are due upon receipt, unless the parties’ arbitration agreement sets a number of days. Extensions for invoice payments must be agreed upon by all parties to the arbitration.

SB 974

Minors on horses on highways must wear approved helmets.

SB 286 Delivery App Tips

Tips for delivery cannot be retained by the apps but go to the delivery driver. Tips for pickup still go to the restaurant.

SB 389 Alcohol to go

Restaurants can sell alcohol to go through to the end of 2026.

AB 177 Judicial Evaluation of Remote Proceedings

The judicial counsel is to collect data on how many and how well remote proceedings are doing and present this information to the Legislature and governor by January 2023. This law also requires the Judicial Council to come up with guidelines on how to administer remote proceedings in the same timeframe.

For more information on CA Bills take a look at the links below:

Written By Christopher Dolan and Casey Hultin

This week’s question comes from William from the Bay Area: My friend rides a motorcycle and was recently injured when he was hit by a car. He believes the police officer who arrived at the scene was biased against him and didn’t even take his statement. He is worried that the police officer found him at fault. Is there some type of report he can get a copy of and if so, who writes them? How can he get a copy of his report? If the report puts him at fault, what can he do? Can he submit a supplemental report?

Great question William.

A traffic collision report is a form filled out by the investigating police officer at the scene. The form seeks basic information such as where the collision took place, the names of the people involved along with their contact and insurance information, the vehicles involved, any property damage, and any injuries. It will also generally include a summary of any statements taken at the scene or as part of the investigation, as well as the names of any witnesses interviewed about the collision. There may also be other additional scene investigation information, such as the locations of any cameras that may have caught footage of the incident or measurements for any debris or skid marks.

To obtain a copy of the traffic collision report, you must qualify as a party of interest in the crash. This generally includes drivers, passengers, vehicle owners, or a parent or guardian of an involved minor. You must complete and sign a request form for the information and provide the date of the collision (or approximate date), collision or incident location (as much information as you have if you do not have a specific address), the name of the driver or owner of one of the involved vehicles, and your name and address. There may also be a small fee. If you are represented by an attorney, your attorney can also help you obtain a traffic collision report.

If the traffic collision report places you at fault, it will likely make your injury claim difficult to resolve without filing a lawsuit. Insurance companies heavily rely on the traffic collision report when determining who is at fault for claim assessment purposes.

However, if the traffic collision report places you at fault, that does not mean any claim to injury is doomed. The conclusions in the traffic collision report are often not admissible at trial, meaning that the judge or the jury cannot consider it when deciding who is at fault for the collision. Further, through the litigation process and depositions (questioning witnesses before trial under oath), it is possible to get the officer to walk back the conclusions in the report. For example, often investigating officers do not have the benefit of canvassing for all possible witnesses at the time of the collision because they are dealing with many other competing interests, including making sure any injured people receive medical care and clearing the area for through traffic.

If you find additional information that the investigating officer failed to consider, you can contact that officer and provide the additional information to them. For example, if there is an additional witness the officer missed, you can call and provide that witness’s information so the witness can give a statement. If there are additional photographs, you can send them in as well. If there are inaccuracies in the report, you can point them out. All of these can lead to the officer amending and our supplementing the traffic collision report. You also have the option to get a formal dispute form from the Department of Motor Vehicles in the event the officer is not responding.

In practice, if the traffic collision report is inaccurate or comes to the wrong conclusion, while you can try to get the officer to author a supplemental report, you are better off navigating the circumstances through an experienced attorney. Especially because, as discussed above, the traffic collision report conclusion is not determinative of fault in a court of law.

We wish your friend a speedy recovery.

Written By: Christopher Dolan and Nancy Villatoro

This week’s question comes from Fran in San Jose: I enjoy walking and like to do so as much as possible. If I can avoid having to drive, I will do so and complete some errands on foot. Even when I drive, I don’t mind parking at the end of a parking lot where there is plenty of room rather than circling for a spot that will only save me a few seconds. In my walks I have noticed how restrictive sidewalks can be and how we are herded along crosswalks. Don’t get me wrong, I realize it’s for my safety to use crosswalks, but I can’t help to think that crosswalks are not engineered to protect pedestrians. While waiting for a light to turn green, I have seen some dangerous street corners where only an imaginary line stands between me and a car going 40 mph. One wrong turn or distraction is all it would take for me to get hit by a car. Are crosswalks there to protect us or simply make more room for cars?

Thank you for your question, Fran. You have a good point of view and excellent question. Prior to the 1920s, city streets looked dramatically different than they do today. There were few crosswalks on the street, and they were generally ignored by pedestrians. Streets were considered to be a public space: a place for pedestrians, children at play, similar to a stroll in the park or a walk in the mall. People would move in any direction without really thinking about it. Author Peter D. Norton in the book Fighting Traffic: The Dawn of the Motor Age in the American City (Inside Technology), describes pedestrians as walking “in the streets anywhere they wanted, whenever they wanted, usually without looking.”

As cars began to spread widely during the 1920s, there was a spike in the number of pedestrian deaths. Over the first few decades of the century the number of people killed by cars skyrocketed.

Before formal traffic laws were put in place, judges typically ruled that in any collision, the vehicle was to blame. A movement began to regulate the speed of vehicles to reduce the number of pedestrian deaths. In response, automakers, dealers and car enthusiast groups worked to legally redefine the street.

By the 1930s, most streets were primarily motor thoroughfares where children did not belong and where pedestrians who failed to use the crosswalks were condemned as “jaywalkers.” Cities and downtown businesses began to regulate traffic in the name of “efficiency.” The articles printed in that era shifted blame for accidents to pedestrians, signaling that following the new traffic laws were important.

Today, in California, the driver of a vehicle must yield the right-of-way to a pedestrian crossing a roadway within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(a).) If the driver approaches a pedestrian within a marked or unmarked crosswalk, he or she must exercise all due care and must reduce speed or take any other action as necessary to safeguard the safety of the pedestrian. (California Vehicle Code § 21950(c).) However, a pedestrian is nevertheless responsible for exercising due care for his or her safety, thus cannot suddenly “leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute and immediate hazard.” Additionally, no “pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalks.” (California Vehicle Code § 21950(b).) The duties of the pedestrian do not relieve the driver from the duty to exercise due care for the safety of a pedestrian within a marked crosswalk or within an unmarked crosswalk at an intersection. (California Vehicle Code § 21950(d).)

Although some intersections and crosswalks can be designed better, crosswalks serve a purpose to keep pedestrians safe while allowing drivers the room they need to travel across city streets. As more people begin to rely less on their cars, more people like yourself will see how we need better designed crosswalks. Continue making your voice heard. You will find you are not alone.

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from Jordan from Emeryville: As people have started to get out more, I keep hearing about pedestrians being struck by cars. I know this is nothing new but seems to be coming up a lot more lately. Do you know what the trend is, I hope I am just paranoid, and whether or not anyone is doing anything to address the issue, if there is one?

With the holiday season upon us, and despite the cold weather, people are out shopping and just being out more. With the current status of COVID-19, ridership on public transportation is still down, so those without vehicles, have taken to walking. But unfortunately, you are correct, though not a new problem, accidents involving pedestrians are on the rise. Earlier this year, the Governors Highway Safety Association (GHSA) projected that 2020 had the largest ever annual increase in the rate at which drivers struck and killed pedestrians, and they were correct.

According to the GHSA the likely culprits are speeding, drunk driving, drugged driving, and distraction, which were rampant on U.S. roads during the COVID-19 pandemic. In addition, the March GHSA report also examined the 2019 FARS data to provide insights on trends regarding these issues. Some of the findings include the following:

Pedestrians accounted for 17% of all traffic deaths in 2019, compared to 13% in 2010. While pedestrian deaths have risen by 46% over the past decade, the number of all other traffic deaths has increased by only 5%
Drivers struck and killed a larger proportion of pedestrians that were minorities, including Black, Indigenous and People of Color, than expected based on the population. On the other hand, white/non-Hispanic pedestrians accounted for a considerably smaller proportion based on population
Most pedestrians are killed on local roads, in the dark and away from intersections. During the past 10 years, the number of pedestrians struck and killed after dark increased by 54%, compared to a 16% rise in pedestrian fatalities in daylight
Alcohol impairment by the driver and/or pedestrian was reported in nearly half of traffic crashes that resulted in a pedestrian fatality
Although passenger cars make up the largest categories of vehicles involved in fatal pedestrian crashes, over the past decade the number of pedestrian deaths in crashes involving SUVs has increased at a faster rate – 69% – than deaths in crashes involving passenger cars, which increased by 46%.

“Last year was filled with so much death and loss as COVID swept across the country. As America gets vaccinated and returns to normal, we need to treat pedestrian safety like the public health emergency that it is,” said GHSA Executive Director Jonathan Adkins. “We must strengthen our efforts to protect those on foot from traffic violence by implementing equitable and proven countermeasures that protect people walking and address those driving behaviors that pose the greatest risk.”

However, given the wide-open roads that existed following the stay in place order, many drivers have failed to adjust to more people being out and about. “The wrecks that are occurring are at higher speeds,” said Dr. James Augustine, the medical director for emergency medical services in Atlanta, as well as a spokesman for the American College of Emergency Physicians.

To help with this issue, AB43 was introduced by State Assemblymember Laura Friedman out of Glendale, to assist cities struggling to combat pedestrian fatalities. Beginning in 2022, cities will be able to force drivers to slow down on accident-prone streets. AB43 gives cities new authority to reduce limits in increments of 5 mph by factoring the safety of pedestrians and cyclists in traffic surveys. The state’s existing standards set limits based upon certain findings determined by an engineering and traffic survey and on the speed drivers feel comfortable driving at, rather than what’s actually safe.

Unfortunately, while it should be the ultimate duty of drivers to pay attention and follow the rules of the road, pedestrians should be mindful of the hazards and follow a few basic tips:

Increase your visibility at night by carrying a flashlight when walking and wearing reflective clothing, such as reflective vests.
Cross streets at a designated crosswalk or intersection whenever possible.
Walk on a sidewalk or path instead of the road. Walk on the shoulder and facing traffic if a sidewalk or path is not available.
Avoid using electronic devices like earbuds or walking if you have been using alcohol or drugs. They can cause distractions and impair judgement and coordination.