What are our rights if my son was hit by a car while riding his bike?

My son was hit by a car on his bike; he flew over the hood and hit the grass. The motorist got out and screamed at my son and was jerking his arm to get up. He is 13 years old and was stunned from the hit. There were 2 witnesses to the accident. The police questioned him at the scene without us present. He wanted us to take him to hospital instead of by ambulance. Fortunately, although $3000 later, it was determined that while scratched up he was OK.. However, his bike, glasses and clothes were trashed. The boy cried for 3 days from the woman screaming calling him a “dumb kid”. The police gave her no ticket or citation. Also, her insurance company denied any responsibility to his medical. Now, 3 attorneys have turned down the case. Am I missing something here; what she did was almost criminal behavior.

Asked on November 7, 2015 under Accident Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Your question does not indicate who was at fault in the collision: that is the key issue in regards to liability (e.g. obligation to pay). If the driver was at fault--that is, if she were driving carelessly or negligently, such as too fast, going through a stop sign, texting while driving, etc.--then she should be liable, and even if her insurer will not voluntarily pay, you could sue her for the money with a reasonable chance of success.
But if she were driving reasonably carefully and the problem was that you son was careless--e.g. he darted out from between two cars, or while riding his bike swerved in front of her car, or turned into/onto the road in front of her without really looking, etc.--then she would not be liable. Liability is based on fault; if your son, not her, was at fault, she is not liable. (And indeed, she could theoretically sue you for any car damage his bike did.)


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