by Guest » Tue Mar 04, 2008 07:43 pm
Who is liable in this case?
Both in error. She hit me, but insurance wants out on a technicality.
What happened:
I pulled into a side street to enter a parking lot. There were two entrances one directly on the corner and one roughly 2-3 car lengths down. I took the 2nd entrance. It turns out that it was one-way, but was not well marked. I did not know until i had entered the lot.
I pulled in slowly, only as far in as, maybe 2 car lengths. I realized it was one way, so I was planning to simply back into a spot on my right.
This is when the incident occurred. I was stopped and a woman in one of the parking spots to my left, backed out, without even looking, right into my drivers side door. It hit right where my door meets the body of my car (2 door honda) Her car was fine. Mine was not. It should be roughly 800-1000 in damages as it is a new car.
This was my first accident. She admitted liability at the scene, but there was no witness. We exchanged info and i called my insurance right away. I took a picture and emailed it to her that night. It was private property so no police.
At first her insurance said they would take care of it. Now, her insurance is saying it is entirely my fault b/c of one-way parking lot, but she hit me!
I did enter the wrong way, but i was not moving and had she looked in her rear view, i was directly behind her. She would have hit me regardless of the direction i was facing at the time.
What rules/laws/regulations can i cite or find to say who is at fault? Even if it says I am. I just want to know. I agree that i was indeed in error as far as traffic laws...
However, as for the actual accident, it had nothing to do with what way i was going. She had a clear view of me, and a clear view of the street i came from, it was a very open parking lot, and it wouldn't have mattered what way i was heading. She simply did not look behind her and backed up.
Both in error. She hit me, but insurance wants out on a technicality.
What happened:
I pulled into a side street to enter a parking lot. There were two entrances one directly on the corner and one roughly 2-3 car lengths down. I took the 2nd entrance. It turns out that it was one-way, but was not well marked. I did not know until i had entered the lot.
I pulled in slowly, only as far in as, maybe 2 car lengths. I realized it was one way, so I was planning to simply back into a spot on my right.
This is when the incident occurred. I was stopped and a woman in one of the parking spots to my left, backed out, without even looking, right into my drivers side door. It hit right where my door meets the body of my car (2 door honda) Her car was fine. Mine was not. It should be roughly 800-1000 in damages as it is a new car.
This was my first accident. She admitted liability at the scene, but there was no witness. We exchanged info and i called my insurance right away. I took a picture and emailed it to her that night. It was private property so no police.
At first her insurance said they would take care of it. Now, her insurance is saying it is entirely my fault b/c of one-way parking lot, but she hit me!
I did enter the wrong way, but i was not moving and had she looked in her rear view, i was directly behind her. She would have hit me regardless of the direction i was facing at the time.
What rules/laws/regulations can i cite or find to say who is at fault? Even if it says I am. I just want to know. I agree that i was indeed in error as far as traffic laws...
However, as for the actual accident, it had nothing to do with what way i was going. She had a clear view of me, and a clear view of the street i came from, it was a very open parking lot, and it wouldn't have mattered what way i was heading. She simply did not look behind her and backed up.
Posted: Wed Mar 05, 2008 01:46 pm Post Subject:
I, too, think this could be very interesting in the outcome.
But, I think we are not taking into consideration the fact that this driver was where she wasn't supposed to be.
Do "one-way" traffic laws apply to driveways on private property?
Was this private property or owned by the city?
Posted: Wed Mar 05, 2008 05:13 pm Post Subject: Who is at fault? I was hit, but my fault by technicality???
In my non-legal personal opinion (we all have em)
In this Thread there is a lot of Co-mingling of Department of Transportation rules & regulation and Private Property rights & responsibilities.
One would think, by the OP's comments, this accident was clearly in the parking lot. Which one would think should throw out any DOT rules & regulations. Making it an "Tort" action. Usually in tort "reasonable" is the key factor.
Is it reasonable for a driver to back into a stopped Car and not be responsible for any damage caused?
Is it reasonable for a driver to back into a Person and not be responsible for any damage caused?
Is it reasonable for a driver to back into a No Parking sign and not be responsible for any damage caused?
Is it reasonable for a driver to back into a building and not be responsible for any damage caused?
If I put a "One Way" sign in my driveway could a Law Enforcement Officer Fine you for backing out of my driveway?
FK,
Posted: Wed Mar 05, 2008 07:29 pm Post Subject:
Good question FK but I'm sure these people will be able to give the best advice possible. That is what they are here for.
Posted: Wed Mar 05, 2008 09:48 pm Post Subject:
FYI, I live in central California
i talked to my insurance agent today and sent her a statement that i wrote up of facts and liability. The lot was poorly designed, and had no markings as to the enterance or exit, and i had only pulled in as far as first two parking spots. Which unfortunatly the person who hit me was in. I do not know what i could have done better in this situation. The only way to tell it was a one way was to really enter the lot. Also, she had a much clearer view of me as there were no cars to her left. And not to metion i was practically stopped behind her when she hit me. Ive been scouring the internet for ideas and support of my position and from everything that ive found I really do not believe that I casued this accident in any way. She was clearly not paying attention. And like Lori said, What if it had been a child behind her walking the wrong direction, or a bicycle? I think, everything else aside it is her duty to assure a clear and unobstructed path behind her. She failed to do so, and that caused the accident. I was just suprised that she admitted to it being her fault... and it seems everything is taken care of until out of the blue someone changes their mind.
So i guess we will see... its the job of each insuarance agency to get the best deal for their client so i can see why they would try and use that against me. Its the only thing they've got. I think the best thing to do is write out a very detailed statement, provide support, lots of pictures (google maps/ satalite pictures do wonders) and see how it pans out.
Posted: Wed Mar 05, 2008 10:44 pm Post Subject:
It looks like you may be in the clear here, at least partially anyway.
I would take the time to look up the following case law:
An individual who brings a claim or lawsuit against another driver for injuries sustained in an automobile accident, also known as a "claimant" or "plaintiff", must prove that the other driver was negligent. Simply put, it must be proven that the other driver failed to use that degree of care in operating his or her vehicle which would be required of a reasonably prudent driver under similar circumstances. Whitford v Pacific Gas & Elec. Co., 289 P2d 278, 136 Cal.App.2d 697 (1955). Also, it must be proven that the other driver's negligence was the cause of the plaintiff's damages and injuries. Clarke v Hoek, 174 C.A.3d 208 (1985); Peter W. v San Francisco Unified School District, 60 C.A.3d 814 (1976).
The cause which must be proven, "proximate cause" or "legal cause", requires the claimant/plaintiff to demonstrate (1) the defendant's negligence contributed to the plaintiff's injury. Sagadin v Ripper, 175 C.A.3d 1141, 221 C.R. 675 (1985), Gordon v Havasu Palms, 93 C.A.4th 244, 112 C.R.2d 816 (2001); and (2) there is no foreseeable, independent intervening act causing the plaintiff's injury. Mitchell v Gonzales, 54 C.3d 1041, 1 C.R.2d 913, 819 P.2d 872 (Negligence must be substantial factor in causing injuries)
Comparative Negligence
Comparative negligence is negligence on the part of the plaintiff that contributes to his or her injury. California has adopted a "pure form" system of comparative negligence. Accordingly, if a plaintiff is even slightly at fault in creating the injury, damages will be reduced in proportion to his or her fault. Li v Yellow Cab Co., 13 C.3d 804, 119 C.R. 858, 532 P.2d 1226 (1975).
Common Actions Held To Be Negligent Under California Driving Law
Failure To Yield Right Of Way - (Veh.C. 21800, et seq.) Intersections (Veh.C. 21800(a)-(e), Saterlee v Orange Glenn School Dist. 29 C.2d 581, 177 P.2d 279 (1947); Left turns (Veh.C. 21801) Sesler v Ghumman, 219 C.A.3d 218, 268 C.R. 70 (1990); Yield Right Of Way Signs (Veh.C.21803); U-Turns (VehC. 22105)
Good Luck!
Maze
Posted: Wed Mar 05, 2008 10:56 pm Post Subject:
tcope-- you think the doctrine of last clear chance would apply here? Just curious, not saying you're wrong, but interested in your ideas.
I did not mention the Last Clear Chance Doctrine as it would not apply in a comparative negligence state (comp neg states don't need the LCC doctrine as it's built into the definition of comp neg). But I did mention just last clear chance as it does apply (really just semantics).
Yes, I think LCC applies! It accounts for a good portion of liability in my opinion. If I understood the OPs description, her car was stopped in the isle way when the impact occurred. The other driver had the responsibility to make sure the area behind his/her car was clear and did not. So that driver _clearly_ had the opportunity to avoid the accident... simply don't back up into the OPs car! The OP can't get away from the person backing up as she cannot move sideways to avoid (POI to the OP's car was the side door).
Seems to me that the "proximate cause of the collision" was the driver that turned into a one-way drive going the wrong way.
Nope, as there is a broken chain of events. The break is the time frame between the two actions and that entering the wrong way really has little to do with the actual accident. Look at it this way... what would have been different of the OP's vehicle was facing the opposite direction? Again, I'm looking at the OP's statement:I was stopped and a woman in one of the parking spots to my left, backed out, without even looking, right into my drivers side door.
Granted, I don't know that the OP was really stopped nor how long the OP was stopped and this could make a difference. But this is why I thought the OP was also partially at fault in the accident.
If I was the other parties carrier, I would have inspected the damage to the OP's car to see if there was an indication that the OP was moving at the time (long scrape marks instead of a neat dent). Also, any scrape marks would indicate is the OP's direction at the time.
I suppose the argument could be made that the backer only looked in the direction that traffic was ''supposed'' to be coming from...
I agree with this and it's a good argument for the other driver to raise. But I'm also going by the POI to the OP's vehicle being the side door. This really indicates to me that the OP was directly behind the other driver when he/she backed up. Again, if the OP was actually moving at the time, it would change all of this.One would think, by the OP's comments, this accident was clearly in the parking lot. Which one would think should throw out any DOT rules & regulations. Making it an "Tort" action. Usually in tort "reasonable" is the key factor.
The OP has the same tort action regardless. Where the accident happen would not matter (tort is a civil wrong, which is always going to be involved in an accident. What you're thinking of is that the drivers may not be cited as it's private property).FYI, I live in central California
Comparative Negligence applies. Meaning, each drive can collect the percentage that the other party is at fault. If the OP contributed 25% to the accident, the OP can collect 75% of her loss from the other party. Given that this is Comp Neg, I don't see how the other carrier can deny 100% liability. That is just a bad call all around.OP, it does not really matter that the lot was poorly designed. This just means you made an "honest" mistake by pulling in. It's still a mistake you are responsible for.
My suggestion is to make sure the other adjuster knows you were stopped at the time (is this correct?), that the other driver obviously should have seen you behind his/her car if they looked and that the other driver had a duty to make sure the area behind him/her was clear (that duty was breached). You can also point out that it does not matter which direction your car was facing as the accident would have happened either way (again, if you were _stopped_ behind the other vehicle at the time). If nothing else, if the other carrier won't accept any liability, they are probably making a bad call.
Posted: Thu Mar 06, 2008 11:04 am Post Subject:
Wow tscope you really know your stuff. I am impressed.
Posted: Thu Mar 06, 2008 11:10 am Post Subject:
you are absolutely correct angelkiss6963
Have you filed this claim with your own carrier? Do you have collision coverage? If so your carrier can pay to repair your vehicle then if your company and the other one cannot agree more than likely the claim will go to arbitration (which is binding). For the final outcome....Hang in there, I think you are in the 'right'. Has the other company made any offer of their idea of percentage of liablity?
Posted: Thu Mar 06, 2008 07:21 pm Post Subject:
I hear that term "binding" in alot of different things especially pertaining to court. What exactly is "binding"...just curious.
Posted: Fri Mar 07, 2008 12:14 am Post Subject:
You can't just leave us hanging on this, what's happening? :D
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