In an accident can a driver be found partly to blame for not anticipating everything as a potential hazard?
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In an accident can a driver be found partly to blame for not anticipating everything as a potential hazard?
I was in an accident where on a very narrow street a woman in a parked car opened
her door just as I was passing by. She admitted to not even looking before
swinging her door open. It caused damaged from my front well to the back door on
the passenger side. She was very apologetic and took full blame of the accident.
My insurance is saying because I failed to see the door open, that I’m also to
blame. As a driver one must be very aware of everything you drive by. That is
impossible to do. My focus was on the road, the upcoming intersection with a red
light, two people and a dog waiting to cross the street at the corner where I
usually turn, so I was not being a negligence. When did parked cars become a
accident waiting to happen? If I had known what a hazard they were I would have
crept along at 10 mph. How can I dispute this?
Asked on June 15, 2017 under Accident Law, California
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
You dispute it the way you did here, with logic and factual support; but that doesn't mean the insurance company will agree. However, that is not the final word: the insurer's conclusion is not a legally binding decision. If they don't agree you were not at fault at all, and you feel the extra money you would have received had there been no fault assigned to you is worth suing over, you could sue the insurer for breach of contract: for violating its obligation to pay the full amount of the claim under the circumstances. You will then be able to present your arguments and evidence to the court; the insurer will present its side; and the court will then make a final determination as to fault and payment.
Note though that drivers do have to watch for doors for opening from parked cars as a general matter. While you are correct that there are circumstances under which clearly, you could do nothing--the door opening as you were passing, too close to stop or swerve--that is a judgment call, since the line between when you should have stopped and when you could not is a fine one. It is not impossible that the court will agree with the insurer and find that you were partly at fault (especially if it feels you were driving too fast for that street--narrow; cars parked narrowing it more--which would be negligent or careless and which would reduce your window to avoid accidents). You would spend the money, time, and effort on a lawsuit and still lose; factor that possibility into deciding whether to take legal action.
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