Understanding Bicycle Accidents – Nevada

According to the National Highway Traffic Safety Administration, around 50,000 people per year are injured in bicycle crashes. But researchers estimate that only about one in ten injury bicycle crashes are reported to police, so the actual number is probably more like 500,000 people a year, or roughly 1,300 per day.

These incidents are very common in Nevada, due to the almost year-round warm weather and the opportunities for both urban and off-road biking. Yet despite the number of bicyclists in the state, bicycles are not “vehicles” according to Nevada law. This distinction, which is somewhat unique to the Silver State, has some effect on liability in bicycle accidents.

First Party Liability in Bicycle Accidents

Despite their special status, bicycles are still subject to all the normal “rules of the road,” including right-of-way. Nevada also has two versions of a move-over law. On multi-lane roads, if a bicyclist is in the right lane, drivers must move into one of the other lanes if at all possible; on single-lane roads, drivers must give bicyclists at least a three-foot cushion when passing.

This law is an important tool in negligence cases, because if a motor vehicle collides with a bicycle, the tortfeasor (negligent driver) is presumptively liable for damages under the negligence per se (negligence “as such”) rule. In most negligence cases, the plaintiff must prove five elements – duty, breach, cause-in-fact, proximate cause, and damages. However, in negligence per se cases, the plaintiff must only establish:

Violation of Statute: The tortfeasor must break a safety law, such as driving while under the influence of alcohol, ignoring a traffic control device, speeding, or not giving a bicyclist sufficient room; non-safety laws, like an emissions violation or an expired drivers’ license, do not count. The three-foot measurement is often rather subjective, but if a car makes contact with a bicycle, it is quite clearly less that three feet away from it.

Cause: There must be a direct connection between the statutory violation and the victim’s damages. If a motorist brushes too close to a bicyclist who then veers off the road and strikes a pedestrian, the pedestrian’s injury may or may not be foreseeable under Nevada law.

Damages: Although the victim must sustain a tangible injury, such as a personal injury from a fall or property damage to the bicycle, the victim is also entitled to compensation for intangible and noneconomic losses.

Negligence per se also creates a presumption in favor of punitive damages in Nevada, and in recent years, judges have been much more willing to instruct juries in this regard. Essentially, the victim is entitled to additional damages if the jury concludes that the tortfeasor (negligent driver) acted with conscious indifference for the safety and property of others. In the liability portion of a trial, the victim must establish negligence by a preponderance of the evidence, but in the punitive damages portion of a trial, the victim must present clear and convincing evidence. A damages cap may also apply, in some cases.

Third Party Liability in Bicycle Accidents

A little over 12 percent of Nevada drivers are uninsured, which is slightly below the national average. That’s probably because the Silver State has one of the lowest auto insurance requirements in the Union. So while most drivers technically have insurance, in many cases they are under-insured, because their policy limits are insufficient to cover the victim’s losses, especially if the collision involves a catastrophic injury, like a wrongful death.

In some cases, under-insurance is not a factor, because most people have at least some assets and tortfeasors are usually personally liable for any part of a judgement that the insurance company does not pay. In other cases, there may be an applicable third party liability theory. Some common employer liability theories include:

Respondeat Superior: If the tortfeasor was an employee acting within the scope of employment, respondeat superior (“let the master answer”) applies and the employer is liable for at least some of the damages. Almost all workers are “employees” for negligence purposes, even if their bosses classify them as something else. Moreover, employees were within the course and scope of employment if they were doing anything of value to the employer.

Negligent Entrustment: If respondeat superior does not apply, the employer can still be liable, because bosses have a duty to carefully hire their workers and properly supervise them while they are on the job.

In terms of third party alcohol liability, Nevada does not have a dram shop law that holds alcohol providers liable if their customers negligently injure someone else. However, negligent undertaking is a recognized third-party theory. Assume Party Host promises to take Intoxicated Guest home but fails to do so, and IG crashes into a bicyclist on her way home. Under those facts, PH could be liable for the victim’s damages.

Liability

In a few cases, fault in a car crash is rather easy to establish. For example, if Debra Defendant is talking on her cellphone while driving her own vehicle on her own time when she rear-ends Paula Plaintiff, who is stopped in traffic and waiting at a red light, Debra is clearly at fault and clearly responsible for Paula’s damages.

But assume Paula pulled out in front of Debra in traffic and Debra rear-ended Paula. Who is at fault in that scenario? Or assume Debra was hauling goods for XYZ Company in a delivery truck when she hit Paula. Who is responsible for damages in that scenario?

Liability is a two-part inquiry. First, the responsible party, or responsible parties, must be identified. Second, the appropriate party, or parties, must pay damages.

First Party Liability in Car Crashes

The crash between Debra and Paula did not happen by chance or by accident. Most likely, the choices both parties made in the hours, minutes, and moments before the collision caused the wreck.

Decisional liability has to do with the choices made, or not made, before operators start driving. Typically, these decisions revolve around the three types of impairment. Although the sources (alcohol, drugs, and fatigue) are very different, the effects are quite similar.

In most cases, drivers are alcohol-impaired after only one drink. Alcohol is an antidepressant, so people who drink nearly always experience a sense of release and euphoria. When it comes to driving, this feeling of euphoria often means that operators are slower to recognize dangerous situations and more willing to push the envelope in terms of their driving habits. That extra few ticks on the speedometer or half-second delay before tapping the brakes can mean the difference between a safe drive home and a serious injury collision. There are also physical symptoms, such as blurred vision and slower reaction times, that are extremely dangerous when operating heavy machinery, including motor vehicles.

Contrary to popular myth, much drugged driving results from abuse of prescription and over-the-counter medications. Many painkillers and antidepressants are very powerful and have serious side-effects even when patients take them exactly as directed. Taking too many pills, or taking pills while not under a doctor’s care, can be even worse. Similarly, many over-the-counter sleep aids and other medicines have active ingredients that required prescriptions just  few years ago.

Fatigued drivers have many of the same issues as drugged and drunk drivers. In fact, driving after eighteen consecutive waking hours is like driving with a .08 BAC, which is above the legal limit in both Nevada and California. Moreover, most of the tips and tricks that observers once suggested, like turning up the radio volume, may make drivers feel more alert for a few minutes, but the effect quickly passes. Also, these tricks do nothing to remedy the impaired judgement and motor skills associated with fatigued driving.

Behavioral liability, or the choices that drivers make just before the crash, is the second liability area. Typically, behavioral liability is associated with motor vehicle code violations, like speeding, illegal lane changes, ignoring traffic control devices, and the like. Distracted driving is also a serious issue, which is why California lawmakers recently expanded the cellphone ban. Previously, the ban only applied to talking or texting; the amended VC 23123.5, which takes effect January 1, makes it illegal to “use or hold” a cellphone or other electronic device.

Finally, there is environmental liability. Many drivers fail to adjust to adverse conditions, like rain or darkness, by slowing down and driving more carefully. Additionally, although it is easier to drive on familiar streets than unfamiliar ones, many drivers do not acknowledge or appreciate the difference.

In most car crash cases, the insurance company tries to shift blame to the victim, to reduce or deny recovery. Contributory negligence is one of the most common arguments. To return to the previous example, assume Paula made an illegal lane change, and Debra — who was speeding — rear-ended her. In cases like this, the juries must apportion fault on a percentage basis.

California is a pure comparative fault state that divides liability based solely on the percentage of fault. Assume the damages were $100,000 and the jury splits fault 50-50. In California, Paula would receive $50,000. But if the same crash and same result occurred in Nevada, Paula would get nothing. That’s because the Silver State is a modified comparative fault state with a 51 percent bar. So, if the defendant’s liability is not at least 51 percent, the plaintiff is ineligible for recovery.

Third Party Liability in Crash Cases

Many states have dram shop laws that hold commercial alcohol providers liable for damages if their intoxicated patrons later injure someone. But Nevada has never had a dram shop law and California legislators recently did away with the Golden State’s version of that law.

Other third party liability theories may apply, such as respondeat superior (“let the master answer”). In a nutshell, if the tortfeasor (negligent driver) was an employee acting within the course and scope of employment at the time of the crash, the employer is at least partially responsible for the victim’s damages. All the relevant terms are defined in broad and plaintiff-friendly terms.

Third party liability is often important because so many drivers are under-insured. Nevada has one of the lowest minimum auto insurance policy requirements in the country, and California’s requirements are not much higher. While it is relatively easy to collect damages from insurance companies, it is difficult, but not impossible, to collect from individuals.

Understanding Bicycle Accidents – California

With mild weather almost year long, California was made for outdoor activities, like bicycling. Unfortunately, most streets in the Golden State were not made for bicycles. Back in the day, the car was the king, and road layouts largely match that attitude. There have been some changes recently, but for the most part, bike lanes are narrow or nonexistent and laws are not very favorable. The culture of the car also means that motorists do not always look out for bicyclists.

As a result, California led the way amongst all other U.S. states in bicycle fatalities between 2010 – 2012, with 338 deaths. In fact, when a fast-moving 4,000-pound car hits a slow-moving 15-pound bicycle, the results are almost always tragic for riders. Fortunately, injured victims have a number of legal options in these situations.

Bicycle Accident Causes

Most of these collisions occur during the summer months and during the day, because of the prevalence of child riders during these months and hours. Children are not as visible in traffic and may not be as familiar with the rules of the road as older bikers.

According to a report from the National Highway Traffic Safety Administration, the most common reason for cycling accidents is collision with a car (29%). Riders are normally not seriously injured if the vehicles are moving 20mph or slower, but they are nearly always seriously injured or killed if the vehicles are traveling 40mph or faster. Speed increases the force in a collision and also reduces reaction time. That latter condition is especially important with regard to bicyclist visibility, a point that is discussed below.

While some drivers speed and ignore traffic laws, others should never have gotten behind the wheel at all, because they were already dangerously impaired. Such impairment can come from:

  • Alcohol: After just one drink, most people experience loss of muscle control, and they are also unable to quickly make good decisions.
  • Drugs: Legal painkillers, sleep aids, antidepressants, and other medicine, if they are used improperly, are as dangerous as illegal “street drugs,” like heroin and cocaine.
  • Fatigue: Statistics show that driving after being awake for eighteen consecutive hours is like driving with a .08 BAC.

Moreover, many people operate motor vehicles while they are distracted by eating, using a cellphone, talking to passengers, and countless other non-driving activities.

Damages Available

In California, bicycle crash victims are entitled to cash compensation for their economic, out-of-pocket losses. These damages include items like medical bills, lost wages, physical rehabilitation costs, and medical device expenses. With regard to medical bills and other medical expenses, attorneys often send letters of protection to third-party providers that guarantee payment when the case is resolved. So, victims get the medical care they need without having to pay out-of-pocket or rely on health insurance.

Noneconomic damages are available as well, for things like pain and suffering, loss of consortium (companionship), loss of enjoyment in life, and emotional distress. Although it is impossible to put a dollar value on the quality of life, money damages are normally the only kind of relief that the law allows.

In some cases, victims are entitled to additional punitive damages. In California, the jury may assess additional damages to deter future wrongdoing and punish the tortfeasor (negligent driver) if the victim presents clear and convincing evidence that the tortfeasor intentionally disregarded the property and safety of others by undertaking a course of action known to be dangerous. A cap may apply, in some cases.

Legal Issues In Bicycle Crash Cases

To obtain these damages, victims must prove that the tortfeasor was at fault for the wreck. Such proof must be a preponderance of the evidence, which means there is more evidence in favor of the plaintiff. Put another way, if there are two stacks of paper side by side, and a person adds one sheet to the stack on the left, there is more paper in that stack than there is in the other one. Normally, there is a two-year statute of limitations in negligence cases.

Even if the motorists are clearly at fault, both they and their insurance companies often try to shift blame onto the victims. As mentioned earlier, visibility is sometimes an issue here. Indeed, tortfeasors often make statements at the scene like “he came out of nowhere” and “I never even saw her.” However, lack of visibility is never an excuse for negligence, because if it was, no one would ever cause a car crash at night or in the rain.

Bikers have a reputation for not following some traffic laws, like coming to a complete stop at stop signs or signaling turns. If a bicyclist coasts through a stop sign or makes an illegal lane change, the insurance company often tried to use the sudden emergency defense. This doctrine excuses liability if the tortfeasor was reacting to an unexpected situation. However, traffic law violations are not normally considered unexpected situations, because such events are so common. Therefore, the sudden emergency defense typically is inapplicable in bicycle crashes.