You were riding your bicycle in the center median and got hit by a passing motorist's mirror. You were knocked to the ground and injured. You were taken to the hospital with multiple fractures. Now you want to know if the driver that clipped you was liable.
To hold the driver liable, you must prove negligence. You must show that the driver had a duty to drive in a safe and careful manner, a breach of that duty, the standard of care that the driver should have adhered to, that the driver caused the accident, that your injuries proximately resulted from the accident and that you incurred damages. If the driver alleges that you were comparatively negligent, you must show that you were free from comparative negligence.
Oregon is a comparative negligence state where the defendant pays for the percentage of negligence attributable to him. If he's 100 percent at fault, he pays 100 percent of the damages. If he's 70 percent at fault and 30 percent of the fault was attributable to the plaintiff, then defendant pays only 70 percent of the damages. If plaintiff is held to be 51 percent at fault for the accident, he recovers nothing.
Liability in the median
Bicyclists are required to obey the same rules of the road as motorists. The median is there for a reason. Nobody is to drive on it, but both you and the motorist did, or at least the motorist came too close to it. It's highly likely that a jury is going to find you comparatively at fault. At issue becomes how much will be attributable to you.
Comparative fault issues
Whether the accident occurred during broad daylight or at night is pivotal. If at night, the color of your clothing and whether your bike had reflectors and/or lights on it weigh on the issue of your comparative negligence. Whether the vehicle that hit you was coming from the front, rear or your side will also be considered.
In evaluating your case, you need to take all of the comparative negligence into consideration. Your defendant will certainly raise allegations to the effect that the accident, or at least part of the accident was your fault. A jury might agree, so any settlement offers should probably be carefully considered. Before going into this on your own contact our attorneys today!