Driver Hit a Child and Didn’t Provide Information

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Driver Hit a Child and Didn’t Provide Information

My 12 year old son was playing ball in a school parking lot. He and another child
were hit by a car. Both were knocked down, but got right up. The driver rolled
down his window, asked if everyone was okay, and my son said I think so and
the driver drove off.

Later that afternoon my son complained of pain and I took him to the ER and
after some x-rays the doctor said along with the bruises he also had a hairline
fracture broken bone. He’s been complaining of headaches ever since.

The car had decals for both Uber and Lyft, but no one got the drivers name or
the cars license number. What can we do?

Asked on July 10, 2018 under Accident Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

As you seem to be aware, you can only successfully sue someone if you can identify and find them. But you can start a lawsuit without knowing their identity: this called filing against a "fictitious" party or defendant, and is often colloquially referred to as suing "John Doe" or "Jane Doe," since you generally use those names as placeholders. The reason you would do this is that once a lawsuit is started, you have access to certain legal procedures or mechanisms called "discovery" that can help you identify the person--for example, you could issue subpoenas to Uber and Lyft, who may have records for who was driving for them at that date and time, in that area, especially if you can give them a description of the vehicle. So you could sue "John Doe" then subpoena Uber and Lyft to see if you can identify him--then you can amend, or revise, the complaint (the legal document which initiates the lawsuit) to name the proper person.
 
 
Similarly, you could sue John Doe, Uber and Lyft, then use a different discovery technique (not a subpoena) available against parties to lawsuits (such as written interrogatories or questions; requests for the production of documents) to again find out from them who "John Doe" was. This may be the better course, since it gives you two other solvent parties, Uber and Lyft, one of whom may be liable: to oversimplify, if John Doe was actually working for (that is, driving at the time for) Uber or Lyft when the accident occurred, they could be liable for the accident and you might have recourse to their insurance. If they can show that John Doe was not driving for them at the time, the will be able to get the case against them dismissed or dropped--but let them prove that, if they can; there are plausible grounds to believe that he may have been driving for one of them at the time, so there is no reason to not at least initially name them. So the best course is to probably sue John Doe, Uber and Lyft, then use discovery to try to find John Doe's identity and address. While it's possible that at the end of the day, you will not discover John Doe's identity or prove that either Uber or Lyft may be liable, you won't know that until you try."


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