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Bicycle Lawyer in NYC???

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Bicycle Lawyer in NYC???

Old 10-31-05, 10:44 PM
  #26  
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Originally Posted by Blue Order
A matter of fact and a matter of law are two different things. There was an accident and a pedestrian was injured. Those are matters of fact. Who is responsible is a matter of law, and that is for the court to decide. In order to prove his case, the pedestrian's attorney has to prove each element of the tort he is claiming. He has to establish that certain facts happened, and that those facts meet the elements of the tort, and that as a matter of law, his client is entitled to relief. And he has to get the court-- whether it's a judge or a jury and judge-- to agree.
I merely stated a fact. As previously noted, I did not offer legal advice. Thanks for that.

Originally Posted by Dchiefransom
Heck, here in California, it would still be the cyclist's fault, even if the cab had knocked him into the pedestrian. If I'm sitting in my car at a traffic light, and someone rearends me, pushing me into the car in front of me, my insurance company has to pay the guy in front of me.
Not true. That depends on the integrity and recollection of the party in front of you, along with that of the party behind you.
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Old 10-31-05, 10:50 PM
  #27  
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Originally Posted by Expatriate
I merely stated a fact. As previously noted, I did not offer legal advice. Thanks for that.
A pedestrian was knocked down. That is a fact. The cyclist may or may not be responsible. That is not a fact. That is a question of law. Whether the cyclist is responsible depends upon statutes, case law, and the facts of the case, as well as any allowable defenses.

The facts of the case are unknown. That is why the attorney who posted needed clarification of the facts before he could comment more specifically.
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Old 10-31-05, 10:53 PM
  #28  
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Originally Posted by Expatriate
I merely stated a fact. As previously noted, I did not offer legal advice. Thanks for that.



Not true. That depends on the integrity and recollection of the party in front of you, along with that of the party behind you.
That's weird. It happened to my Father-in-Law. All three cars were still there, with his messed up on both ends. His insurance ended up paying the guy in front of him. My agent said it's to save insurance companies money, so one company won't have to pay for several cars. Hopefully I won't have to find out for myself.
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Old 10-31-05, 10:58 PM
  #29  
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Originally Posted by Blue Order
A pedestrian was knocked down. That is a fact. The cyclist may or may not be responsible. That is not a fact. That is a question of law. Whether the cyclist is responsible depends upon statutes, case law, and the facts of the case, as well as any allowable defenses.

The facts of the case are unknown. That is why the attorney who posted needed clarification of the facts before he could comment more specifically.
You must just be here for the argument? If the pedestrian was not jay-walking, the cyclist is responsible. But there is a big difference between liability and responsibility. If there was a 3rd party that contributed to this, it's the responsibility of the cyclist to prove that he alone was not 100% liable.
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Old 10-31-05, 11:02 PM
  #30  
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Originally Posted by Dchiefransom
That's weird. It happened to my Father-in-Law. All three cars were still there, with his messed up on both ends. His insurance ended up paying the guy in front of him. My agent said it's to save insurance companies money, so one company won't have to pay for several cars. Hopefully I won't have to find out for myself.
Sounds fishy. There may have been a payment made to settle the claim of the car in front, but then the middle company would pursue the car in back. It gets messy when there's an uninsured party in back as well. The severity of damages and amount of impacts (1 vs 2 for the front car) usually helps to determine who is at fault.
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Old 10-31-05, 11:13 PM
  #31  
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Originally Posted by Expatriate
You must just be here for the argument? If the pedestrian was not jay-walking, the cyclist is responsible. But there is a big difference between liability and responsibility. If there was a 3rd party that contributed to this, it's the responsibility of the cyclist to prove that he alone was not 100% liable.
This is ridiculous. There's only one attorney who's responded, and he had nowhere near the certainty on questions of law that you, a non-attorney, have. I'm not here for the argument-- I'm here to make sure that the original poster understands that there's a difference between opinions from non-attorneys and advice from attorneys.

And I've had my say, so I'm done with it.

FLMMKR: Your friend needs to consult with an attorney.
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Old 11-01-05, 01:02 AM
  #32  
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Originally Posted by Blue Order
This is ridiculous. There's only one attorney who's responded, and he had nowhere near the certainty on questions of law that you, a non-attorney, have. I'm not here for the argument-- I'm here to make sure that the original poster understands that there's a difference between opinions from non-attorneys and advice from attorneys.

And I've had my say, so I'm done with it.

FLMMKR: Your friend needs to consult with an attorney.
The lawyer that posted didn't state what his specialty was, so that has no bearing here. I did not make my comments based on the law, I based them on experience. It's a very practical tool. Is there anything I posted that you find to be incorrect or inaccurate? From now on, I shall preface my comments with the words "I'm not an attorney, but it has been my professional experience that..."
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Old 11-01-05, 02:38 AM
  #33  
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Originally Posted by Dchiefransom
Heck, here in California, it would still be the cyclist's fault, even if the cab had knocked him into the pedestrian. If I'm sitting in my car at a traffic light, and someone rearends me, pushing me into the car in front of me, my insurance company has to pay the guy in front of me.

Exactly. goes right along with the guy not touching a cyclist, cyclist swerves and hits someone, still the cyclist fault. Talk to a policeman or look for a lawyer that offers free consultations or free phone advice.
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Old 11-01-05, 03:25 AM
  #34  
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Originally Posted by EricDJ
Exactly. goes right along with the guy not touching a cyclist, cyclist swerves and hits someone, still the cyclist fault. Talk to a policeman or look for a lawyer that offers free consultations or free phone advice.
What you're referring to is contributory negligence, which is frequently difficult to prove. It could just as easily be argued that the cyclist failed to maintain control of his vehicle, which in this case is a bicycle. Talking to a police officer would be no help in this situation. The cyclist in question needs to find out what the injured party is demanding as far as compensation. The attorney for the injured party will need to decide if the cyclist is a good candidate for recovery.

I'm not an attorney, but it has been my professional experience as a subrogation claims person that in California, if a motorists rear-ends someone, pushing them into another vehicle, they will be held responsible for all the damages they have caused. As stated above, the insurance company for the middle vehicle may elect to pay for the damages of the vehicle in front, but they will pursue the vehicle in back for this payment. This would happen if the middle vehicle was insured, but the back vehicle wasn't.
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Old 11-01-05, 03:53 AM
  #35  
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In accidents responsibility is and always be a matter of law and it is solely for the representatives of the law to decide who or what is responsible and how that affects liability. This from a said representative of the law, not an attorney, lawyer or barrister but a judge.
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Old 11-01-05, 07:39 AM
  #36  
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Only if they go to court. Until they actually go to court, the law is whatever they think it is.
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Old 11-01-05, 07:44 AM
  #37  
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And another thing. Responsibility is *not* a matter of law, you've got cause and effect backwards. The law is a formal mechanism for resolving disputes, but the responsbility would exist even if the law did not.
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Old 11-01-05, 08:13 AM
  #38  
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but the responsbility would exist even if the law did not.
True but because law does exist responsibility is a matter of it.
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Old 11-01-05, 09:13 AM
  #39  
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It is well established law in many states (again I don't claim to know what the law is in NY) that if driver1 drives negligently and causes another driver, driver 2 to strike a third party (vehicle or pedestrian or property) driver 1 is responsible for the damages suffered by the 3rd party, whether or not there was actual contact between driver 1 and driver 2. That is the law in many jurisdictions. As Blue Order correctly pointed out, there are issues of law and issues of fact.

Whether driver 2 can establish that driver 1 was negligent is an issue of fact. Driver 2 asserts that a cab (for example) cut him off, causing him to swerve and hit something else. If he can prove those facts to a fact finder, e.g. a judge or jury, then according to the law above, driver 1 is responsible for the 3rd parties damages. As far as the evidence that driver 2 has to produce to prove his case, in most jurisdictions all he needs is his statement that he was run off the road. That is sufficient to get the judge or jury to rule on the issue of whether driver 1 was negligent. Note, this doesn't mean that driver 2 wins, this means that the trier of fact can take into consideration the issue of driver 1's negligence. The judge or jury can always rule that they don't believe driver 2's story, but if they do believe driver 2, then driver 1 is responsible for the 3rd parties damages. So in this case, if driver 2 has witnesses, then it is more likely the trier of fact will believe driver 2's version of the facts, but driver 2 is not required to have witnesses in order to get the trier of fact to rule on his contention that driver 1 was at fault.

Note that in this example in order to keep this as straightforward as possible, I have not addressed the issue of comparative negligence. Most states have adopted the doctrine of comparative negligence in which the trier of fact must apportion the % of fault (negligence) among the actors. In a nutshell, this is how it works. In the scenario above, just by way of example, the trier of fact could determine that yes, driver 1 negligently cut off driver 2, but driver 2's brakes weren't working correctly due to negligent maintenance which didn't allow him to stop in time, striking a pedestrian that was negligently jay walking.
The trier of fact could rule that driver 1 was 90% at fault, driver 2 was 2% at fault and pedestrian was 8% at fault. Then, driver 2 would only be responsible for 2% of the pedestrians total damages (lets assume the total damages are $100.00) or $2 minus 8% (the percentage the pedestrian was at fault), for a grand total of $1.84. Or the trier of fact could say that any one of the actors was 100% at fault or any possible combination thereof. Again, these figures are just for demonstration purposes, I don't have enough information to give a specific opinion in the poster's case.

Thats why, Dchiefransom in your situation, the classic "sandwich" car accident, the middle driver can be partially at fault and responsible for the 1st driver's damages, but only if he was negligent, for example, if he did not leave a reasonable distance between him and the car in front of him, and, the middle car would only responsible for the % that he was at fault. The last driver, however, would still be primarily negligent.

Finally, NYcm'r raises a good point, your friend may also have a claim against the pedestrian (if she was jaywalking) and the cabbie, if he can find him, for their negligence, assuming he has bodily injuries and/or property damage. If he can, based on the facts, file a claim, it is also gives him a very good negotiation position, he can tell the jawalker's attorney, you drop your claims against me and I will drop my claims against you. The best defense is a good offense.
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Old 11-01-05, 09:22 AM
  #40  
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By the way, 90% of my practice is in the area of personal injury on the side of the plaintiffs, the majority of my PI cases are car accidents, most with issues of insurance coverage and comparative negligence. I've been practicing for 18 years.
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Old 11-01-05, 01:56 PM
  #41  
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Originally Posted by The Seldom Kill
In accidents responsibility is and always be a matter of law and it is solely for the representatives of the law to decide who or what is responsible and how that affects liability. This from a said representative of the law, not an attorney, lawyer or barrister but a judge.
Liability is a matter of law, responsibility is not.

San Rensho, thank you for that rather lengthy explanation. What do you do when the defendant has no assets?
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Old 11-01-05, 02:16 PM
  #42  
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I tell my client there is no point in going forward with the case. That is why I wrote in my original post that if the bicyclist has no assets, he should tell the pedestrian's attorney that fact during settlement negotiations.
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Old 11-01-05, 02:32 PM
  #43  
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Originally Posted by San Rensho
I tell my client there is no point in going forward with the case. That is why I wrote in my original post that if the bicyclist has no assets, he should tell the pedestrian's attorney that fact during settlement negotiations.
Got it. You call them "Settlement negotiations". In the insurance industry, we just get a "Go pound sand" letter from the claimant, and then decide what course of action to take from there. You've got roughly twice the time in the business I had, but I'm sure I made it up in volume. There's no way the cyclist will be able to prove contributory negligence on the part of the cabby, as there was no mention of him being ID'd, nor have we been told of any potential witnesses. The pedestrian is unlikely to corroborate that version as well, as it's not in their interest to put any blame on a party that can't be located.

So what's your take on this situtation? Apparently, Blue Order has something against me.
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Old 11-01-05, 03:05 PM
  #44  
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What I'd like to know is, where was the pedestrian hit? And who had the light?

Hypothetically, if he's in the middle of the street, going with traffic, has the green, and a cabbie cuts him off, so he serves let's say into another lane, then hits the pedestrian, then the FACT is, that he hit a pedestrian who was on the road when cars had the green.

On the other hand, there have been quite a few accidents where cars have jumped the curb due to the driver blacking out, being hit by another car, etc, and plowed into a bunch of pedestrians on the sidewalk. You might want to see what was involved in those cases too.
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Old 11-01-05, 03:41 PM
  #45  
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Slvoid, shouldn't we just shoot them all?
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Old 11-01-05, 04:23 PM
  #46  
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Originally Posted by Expatriate
Slvoid, shouldn't we just shoot them all?
Well I was going to say, if this was at some odd hour of the night w/o anyone around, he should've put one to the head to make sure she stayed down then biked away.
But unfortunately, she survived. Another thing I'm not sure about is how malicious her intent is, does she want compensation for like, the expensive salon nails she broke or is she out for blood?
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Old 11-01-05, 04:29 PM
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Originally Posted by slvoid
Well I was going to say, if this was at some odd hour of the night w/o anyone around, he should've put one to the head to make sure she stayed down then biked away.
But unfortunately, she survived. Another thing I'm not sure about is how malicious her intent is, does she want compensation for like, the expensive salon nails she broke or is she out for blood?
Thought you were getting soft on those peds. Thanks for clarifying.
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Old 11-01-05, 05:31 PM
  #48  
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It is an opinion on a matter of law.

Originally Posted by Expatriate
It's actually a fact. Without being able to prove that there was another contributory party, the cyclist is on his own.

Re: Chestnuts. I was just hoping to get my NYC friend to agree with me on something, anything, else.
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Old 11-01-05, 05:43 PM
  #49  
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Originally Posted by rideabike
It is an opinion on a matter of law.
Indeed. Based on many years of experience.
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Old 11-01-05, 09:19 PM
  #50  
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Originally Posted by Expatriate
Indeed. Based on many years of experience.

Yes, we agree, America is overrated.
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