car-bicycle accident- fail to remain...

piezomot
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car-bicycle accident- fail to remain...

Unread post by piezomot »

My son, the 16 year old teenager, was cycling along the road and saw a car slowing down ahead of him without showing any turn signals. Unsure of the driver actions, my son turned to the deserted sidewalk on his right where he continued biking for some time until car turned sharply right to his driveway just a meter in front of my son without seeing him. To avoid a collision my son turned right but car continued moving since the driver still didn’t notice him and the collision occurred. My barely managed to keep control of his bicycle and avoid a serious injury, however his left leg was hit. He was in such shock and pain that he couldn’t think clearly and was not able to use right judgment and tried to distance himself from the collision scene to check his hit leg.

This accident was investigated by a police officer who granted my son with "Fail to remain" ticket. He told us that the driver would be charged for careless driving since he didn’t notice cyclist on a sidewalk and collided with him when making a right turn to the driveway if my son did not leave the scene.

In spite of the "Fail to remain" ticket the car driver (plaintiff) wants us to pay his full damage ($1122.04) as this according to plaintiff this will not be reimbursed by his insurance company making a statement that the plaintiff should not have to make a claim for repairs on their automobile insurance when the individual responsible for the damage is known and bring this issue to the small claims court. Is this legal as the bicycle is covered under my home insurance company? The plaintiff has to prove one of three things: Negligence, intentional tort or strict liability.

Can it be the case?
Last edited by piezomot on Wed Oct 08, 2008 8:04 am, edited 1 time in total.


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Bookm
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Unread post by Bookm »

Sidewalks are for walking pedestrians only. That's why they're called pedestrian sidewalks, not bike paths. Motorists should only expect to encounter walking pedestrians when exiting a street.

Perhaps the law sees it different. This is just my opinion. If a cyclist, skateboarder, roller-blader, etc. hits me, I too would sue for damages.


piezomot
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Unread post by piezomot »

Driver's Handbook notes:

Motorcycles, bicycles, limited speed motorcycles and mopeds often need to pull to the right or right side of their lane to avoid dangerous road conditions or to be seen by other drivers. When turning right, signal and check your mirror and the blind spot to your right to make sure that you do not cut off a cyclist.

It is clear the car driver fault in my opinion.


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Unread post by BelSlySTi »

piezomot wrote:Driver's Handbook notes:

Motorcycles, bicycles, limited speed motorcycles and mopeds often need to pull to the right or right side of their lane to avoid dangerous road conditions or to be seen by other drivers. When turning right, signal and check your mirror and the blind spot to your right to make sure that you do not cut off a cyclist.

It is clear the car driver fault in my opinion.
It says road, lane and not sidewalk!
I do hope your boy is ok!
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Unread post by hwybear »

Have to agree with Bel and Book on this one!
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


piezomot
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Unread post by piezomot »

hwybear wrote:Have to agree with Bel and Book on this one!
I do not agree!

According to the Ontario Highway Traffic Act the same rules are for the sidewalk as for the road. In other words the Ontario Highway Traffic Act is extends on the sidewalks.


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Unread post by ticketcombat »

piezomot, please remember that we are trying to help you. We are objective in the sense that we only read what you wrote. If you think a court is going to see it your way, you've got a very hard lesson coming.

I don't know your location but the City of Toronto has a pretty good page on cycling in the city here, including accident scenarios and suggestions on how to avoid (read who caused) the accident.

Bicycles are regulated like other vehicles under the highway traffic act. Bikes with wheel diameters greater than 24 inches are not permitted on sidewalks (Toronto by-law). And the HTA doesn't like cars driving on sidewalks either!

A good rule of thumb is to never approach or overtake a vehicle turning right from the right side. Your son didn't know what the car was doing but he was approaching it, it wasn't overtaking him. And he chose to ride on the sidewalk. Did he have a bell on his bike?

Now let's get to your problem. You haven't stated how the cop found your son if he rode away. If he merely stopped some distance away then you've got a pretty good shot at fighting the ticket. (I'm assuming your son has a driver's license.)

As for the car driver, he's in trouble too. He's looking at a major charge and a major insurance hit. That's why he's trying to sue you and not let his insurance company find out. You both want to avoid costs and legal fees which should be the starting point of negotiations. You son is not 100% guilty, but he's also not 100% innocent. You need to man up your share of the costs. And one other important point to remember: the prosecutor needs both of you to testify at each other's trial.
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piezomot
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Unread post by piezomot »

First of all thank you all for your help and comments!
You haven't stated how the cop found your son if he rode away.
My son was with his co-student from his school who was a good citizen :) and did not leave the scene. When police came the poor guy wrote down exactly what police officer wanted from him to hear i.e. that they did not stop on the stop sign, which is by the way 150 metes away and is not related to accident circumstances and that the car driver was not yelling. But I have not seen any person who would be happy after the car accident and would not use any "F-words"...

Following the above mentioned paragraph I would like to add that the car driver decided to chase my son in the car and cut him off on another driveway – potentially dangerous behavior that could have resulted in another collision and injury. Car driver exited his vehicle yelling and repeatedly using obscene language and was trying to detain my son by grabbing onto his shoulder. This aggressive behavior of the car driver scared and shocked my son even more and caused him to leave the scene of the accident for his own safety.

We were trying to dispute this aggressive behavior of the car driver with the police officer but he told us that it is normal and acceptable in such situations- it is called making a Civil arrest.

Also the police officer was trying to threaten us with demerit points (was pushing to pay to the car driver on spot, and offering not laying any charges), perfectly knowing that there are no demerit points for cyclists...

(For more information on the fines for cycling offenses visit http://www.toronto.ca/cycling/pdf/hta.pdf)

My question is why the Toronto police officer was in kahoots with the car driver and did not lay any charges against him in this situation...


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Unread post by ticketcombat »

A couple of things. There are demerit points for cyclists if they have a driver's license. The City of Toronto info you quote is confusing and the writer is making an inaccurate conclusion based on a deferral to a regulation.

Second, are you now saying the other driver wasn't charged?

Finally, look at it from the driver's perspective: some kid hits your car and then tries to ride off. If the kid was injured, the driver would be in serious trouble even though the kid took off. He was trying to keep him at the scene of the accident.

Your son should have stayed there like his friend. His leaving was wrong. He panicked. We understand why he did it but that doesn't make it right. Every parent is going to defend their kid. OK. But the "my son didn't do anything wrong" position is preventing you from getting into the negotiations which is where you need to be.
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piezomot
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Unread post by piezomot »

There are demerit points for cyclists if they have a driver's license.
No ticketcombat, you are wrong here, read this note below:

The HTA defines bicycles are defined as vehicles. As vehicle operators, cyclists are subject to most of the same HTA requirements as drivers of motor vehicles. However, there are some important differences. The application of demerit points is an important difference.

According the the Ontario Ministry of Transportation, "the demerit point system only applies to certain offenses committed in a motor vehicle. However, I understand that on rare occasions demerit points are in error assigned to the driving record of an individual for an offense committed on a bicycle. When the Ministry of Transportation is notified of such occurrences, the error is immediately corrected." (1993 letter from Ontario Minister of Transportation to the Chair of the Toronto Cycling Committee)

We continue to hear that cyclists are being charged with demerit points in error. If you are being given a summons by a police officer ask them to clearly indicate that the "vehicle type" is "bicycle" on the Provincial Offenses Notice. If the notice is submitted to the Ministry of Transportation without a bicycle being indicated then it could be mistakenly coded as a motor vehicle offense.


I have called to MTO and they removed demerit points.

Another thing is that I was not happy with one of these Traffic Tickets companies. I paid them $500 to help me in court with this case and they did not do anything... First they did not know anything about demerit points for cyclists as you do and second they have done what I could of done by myself- speak to Justice of Peace and reduce this (pleaded guilty) from "Fail to Remain" to "Fail to Report", saying to me that it is "better deal". I could not see this being better deal as both of them are Major Offences and both stay 5 years on driver record...

There is a saying exist- if you want to do things properly- do it yourself!


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Unread post by ticketcombat »

I am more than willing to admit when I am wrong. Like my friends who received tickets while on bikes and got demerit points, I too was not aware of the "bicycle" designation rule on the vehicle type box. As there is no actual citation of an act or regulation in the http://www.ibiketo.ca/node/2311 blog, and they don't name the minister or provide the date or a copy of the 1993 letter; and the City of Toronto (bastion of accuracy) vaguely references section 56 of the HTA, the only thing left to assume is that this is an MTO internal policy. I also note one comment to the blog dated June 19th, 2008;
The officer clearly marked that the no motor vehicle was involved, and yet 3 demerit points have been deducted.
So you can understand why this is a common misunderstanding if 15 years after the minister's letter, it's still happening!

UPDATE 10:44 pm
This bicycle demerit point issue was irking me so I called the MTO Driver Improvement Office (they're the ones you meet with before they suspend your licence) to get to the bottom of this. It turns out the City of Toronto was correct in referencing section 56 of the HTA where it states that a demerit point system is for drivers of motor vehicles while bicycles are considered vehicles. Riders are still subject to fines, but not demerit points.

MTO also stated they cannot reverse demerit points. The issue has to go back to the court to issue a correction. They also indicated this error happens mostly in Toronto.
Last edited by ticketcombat on Wed Oct 08, 2008 10:58 pm, edited 1 time in total.
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piezomot
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Unread post by piezomot »

This is the answer I have on this incident from allexperts.com

Answer
The ticket that your son received has no bearing on the facts of loss and the fact that an insurance company would attempt to use that as part of their liability decision absolutely disgusts me.

Your son is not liable for any of the damages to the other driver's vehicle. The other driver should be 100% liable for any injuries that your son suffered along with any damage to the bike.

Additionally, this insurer has thrown the practice of "good faith" claim handling out the window and is setting themselves up for a "bad faith" claim from their own insured as they are failing to protect him from the potential lawsuit that your son could bring.

It is VERY, VERY rare that I advise someone to get an attorney before they've at least attempted to get a fair settlement offer but in this case, you need to find the meanest S.O.B. personal injury attorney that you can.

Don't worry about small claims court as these idiots have likely taken things to another level.


Going back to my original post, isn't it illegal for the car driver to sue me? First, his car is covered by his insurance and he must report accidents to his insurance company first and get reimbursement, second my son bicycle is covered by my home insurance and this incident was reported to them. How come we have the car insurance required by law and at the same time it looks like people can completely ignore this fact and sue each other for vehicle accidents damage in spite of the insurance?

Anybody can answer this question?


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Unread post by racer »

Bookm wrote:Sidewalks are for walking pedestrians only. That's why they're called pedestrian sidewalks, not bike paths. Motorists should only expect to encounter walking pedestrians when exiting a street.
First off, I would much rather be a "pedestrian who was hit by a bike" rather than a "bycyclist who was hit by a car" (ie a dead cyclist). Having once been cut off by a BUS (realize how angry I was - these are supposed to be the safest drivers!) while I was in cycling lane, and I can tell you for sure that there is no safer spot for a cyclist other than a sidewalk. If there is an idiot on the road and I'm on my bicyle - forget the law, bylaw, and posted bilingual sign, I'm going on the sidewalk. Quite obviously in this case there was such an idiot on the road. Bad example of "pedestrian sidewalks" because there are motorized vehicles (wheelchairs) on it. Some are a lot less considerate than most cyclists. Also, what about pedestrians crossing a road? Are pedestrians confined to the limit of their block and when they need to go they must take a car?

Now, the driver has a careless driving charge. Meaning his driving caused the accident. His afterwards behaviour chased away your son, thus causing his "Fail to remain at the scene". He is at fault 100% here on both counts - "preventing an injured party from remaining at the scene of an accident". What his insurance is trying to do here as admission of guilt - if you pay him, therefore you are at fault, and thus he no longer has a careless driving ticket, because you proved him not guilty by paying his damages. Dirty, dirty tactics, what is his insurance company (I want to make sure not to use them). Making a "Civil Arrest" shouldn't include bodily damages, no matter the circumstances.
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Unread post by Radar Identified »

Something about the insurance company's response does not add up. Insurance companies are supposed to assess fault and payouts based on the Insurance Act of Ontario, not the Highway Traffic Act. The fact that the driver says that his insurance company is using a "fail to remain" charge as the basis for determining that your son (or you) has to pay is very unorthodox, for lack of a better expression. If that is the case (which, truthfully, seems very unlikely), they have essentially told him that they are not going to comply with the Insurance Act. He should take up that issue with his insurance company, or report them, because they have committed an offence.

Sometimes people will get in an accident but try to settle it outside of insurance, which helps keep their premiums a little lower than they would if they filed a claim. I find it hard to believe that a licensed insurance company would tell him "yeah just go use small claims court, we don't have to pay." Riiiiiiigght. The fact that he so readily complied with their advice, if that's indeed what they told him, is also strange. There is a possibility that he might be trying to avoid telling his insurance company, or maybe he just didn't want to file a claim.

He does not have to file a claim for the damages, even if he reports the accident, but unless you've agreed to settle this outside of insurance, that's his problem, not yours. He can legally file a lawsuit, (he can sue for anything he wants) but whether or not it will be successful is an entirely different issue. That's where laws and statutes kick in. When it goes to discoveries he'll probably be in for a surprise. My suggestion is to counter-sue. Have you told your insurance company that you are being sued?


piezomot
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Unread post by piezomot »

Have you told your insurance company that you are being sued?
Yes I did, they asked me to send them the plaintiff claim and they will do somthing about it, I do not know what...
Insurance companies are supposed to assess fault and payouts based on the Insurance Act of Ontario, not the Highway Traffic Act.
I know that insurance companies do their own investigation, even if police say no one is at fault that may decide who is at fault.

Also I would like to mentioned that I came to plaintiff (car driver) house and was trying negotiate, but driver wife opened her mouth very widely as it was her car, plus they did not want to admit their fault at all...
Last edited by piezomot on Thu Oct 09, 2008 4:39 pm, edited 1 time in total.


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