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Bicycle Accident Cases Publication

John D. Winer, San Francisco

A. Who Can Sue for a Bicycle Accident.

Anybody riding a bicycle who is injured or whose family member is killed by someone else’s wrongful conduct may bring a lawsuit. This is true for adults an children (who can bring a lawsuit through a parent or guardian).

Although it is rare, people who are injured by bicyclists can also bring a lawsuit if they can establish negligence on the part of the bicyclist.

The spouse of the injured plaintiff can also bring his or her own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

B. Who Can Be Sued for Injury or Death Resulting from Bicycle Accident.

i. Motor vehicle drivers.

Any motor vehicle driver whose wrongful or negligent conduct causes a bicyclist’s injury or death can be sued.

ii. Manufacturers of vehicles, bicycles, helmets and tires.

Further, in cases in which a bicyclist is injured or killed by a defectively designed or manufactured motor vehicle, bicycle, tire or bicycle helmet, the bicyclist or his or her survivors may be able to bring a case against the manufacturer, supplier or seller of the bicycle, tire, bicycle helmet or any motor vehicle involved in the accident.

iii. Negligent maintenance.

Also, if a plaintiff can establish that the bicycle accident was caused by the negligent maintenance and repair of the bike by a bike shop, the plaintiff may be able to maintain a cause of action against the bike shop where the repairs occurred.

iv. Dangerous condition of public property.

Cases in which a bicycle accident is caused by a dangerous condition of public property, such as a roadway or failure to have a bicycle lane, are covered by public entity liability law in California. Public entities may be found liable for dangerous conditions if there are no immunities barring recovery and plaintiff can prove that the dangerous condition was a substantial factor in causing the accident.

v. Dangerous condition of private property.

Cases in which bicyclists are injured due to the negligent maintenance of private property or a dangerous condition of private property are covered under California premises liability law. The law will generally allow monetary recovery against possessors of public property if the plaintiff can prove that the dangerous condition contributed to the accident.

C. The Rights and Duties of Bicycle Riders.

Under the California Vehicle Code, every bicyclist riding on a roadway or highway has all of the rights of a motor vehicle driver and all of the responsibilities of a motor vehicle driver.

Thus, in analyzing bicycle accident cases, for the most part a bicyclist is treated the same as a motor vehicle driver and not as a pedestrian. This may be different when a person is walking a bicycle, as opposed to riding on a bike, or when a person is on private property.

D. Special Vehicle Code Sections That Apply to Bicyclists.

i. Some laws provide special duties on bicyclists.

Although many people do not realize it, there are a number of California Vehicle Code sections that apply specially to bicyclists. Since nobody has to pass a DMV examination to ride a bicycle, most people do not know of most of these special rules and regulations; however, they are the law and ignorance of the law is never an excuse.

ii. Laws that provide special protection for bicyclists.

On the other hand, there are also laws that provide bicyclists with protection that motor vehicle drivers do not have.

iii. Violation of the law by a motor vehicle driver may create a presumption of negligence.

If a law that is enacted to protect bicyclists is violated, it can provide a basis for a presumption of negligence of a motor vehicle driver.

iv. Violation of law by a bicyclist may create a presumption of comparative negligence.

If a bicyclist violates a Vehicle Code section it may crate a presumption of the bicyclist’s comparative negligence and lead to a reduction of any award in the bicyclist’s favor by the percentage of the bicyclist’s fault. For instance, if a bicyclist violates a statute and is found to be 50% at fault for an accident, the award can be reduced to 50%. For instance, a $1,000,000 verdict could be reduced to $500,000.

v. Examples of significant laws that apply to bicycle accident cases.

What follows is a discussion of some of the more important laws that apply in cases involving a collision between a bicyclist and motor vehicle driver:

a. Driving under the influence of alcohol and drugs.

The same laws that apply to driving a motor vehicle under the influence of alcohol and drugs apply to bicyclists including suspension of privileges to drive a motor vehicle.

b. Equipment requirements.

Bicycles must have:

  • brakes;
  • handlebars which will not require the bicyclist to raise her hands above the level of the shoulders in order to grasp the handlebars;
  • a bar or seat low enough so that bicyclists can support the bike in an upright position with at least one foot on the ground;
  • if the bicycle is operated on a road during the night, it must have:
  • a lamp emitting a white light which, while the bicycle is in motion, illuminates the highway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle.
  • a red reflector on the rear which shall be visible from a distance of 500 feet to the rear when directly in front of headlamps on a motor vehicle.
  • a white or yellow reflector on each pedal visible from the front and rear of the bicycle from a distance of 200 feet.
  • a white or yellow reflector on each side forward of the center of the bicycle and with a white or red reflector on each side to the rear of the center of the bicycle unless there are reflectorized tires.

c. Special requirements for sellers of bicycles.

No seller of a bicycle shall sell, or offer for sale, a reflex reflector or reflectorized tire of a type required on a bicycle unless it meets the requirements established by the DMV.

Further, all new bicycles must contain a red reflector on the rear, a white or yellow reflector on each pedal visible from the front and rear of the bicycle, a white or yellow reflector on each side forward of the center of the bicycle, and a white or red reflector on each side to the rear of the center of the bicycle, except that bicycles which are equipped with reflectorized tires on the front and rear need not be equipped with these side reflectors.

d. A bicyclist must ride as close as practicable to the right hand curb unless moving with the normal speed of traffic.

Any person riding a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction shall ride as close as practicable to the right hand curb or edge of the roadway with the following exceptions:

  • when overtaking and passing another bicycle or vehicle proceeding in the same direction.
  • when preparing for a left turn at an intersection or into a private road or driveway.
  • when reasonably necessary to avoid conditions that make it unsafe to continue along the right hand curb.
  • when approaching a place where a right turn is authorized.
  • when riding in a one-way roadway that has two or more marked traffic lines, a bicyclist can ride as close to the left curb as practicable.

e. Seating of persons riding bicycle.

Under the Vehicle Code, each person riding on a bicycle must have a seat and any passenger four years old or younger or weighing 40 pounds or less must have adequate protection from falling off the bicycle or from the moving parts of the bicycle.

f. Bicycle lanes.

When a bicycle lane has been established, any person operating a bicycle less than the normal speed of traffic moving in the same direction shall stay within the bicycle lane unless:

  • overtaking and passing another bicycle, vehicle or pedestrian within the lane.
  • when preparing for a left turn at an intersection or into a private road or driveway.
  • when reasonably necessary to leave the bicycle lane to avoid debris or other hazardous conditions.
  • when approaching a place where a right turn is authorized.

Further, even under one of the above exceptions, a bicyclist shall not leave a bicycle lane until the movement can be made with reasonable safety and then only after giving an appropriate signal.

Although bicyclists are required to ride in bicycle lanes, except with limited exceptions, once they are in the lane, they receive special protection under the law from motor vehicles.

Under the Vehicle Code, no motor vehicle operator is allowed to ride in a bicycle lane except:

  • to park where parking is permitted.
  • to enter or leave the roadway.
  • to prepare for a turn within a distance of 200 feet from the intersection.

g. Bicycle helmets.

Any person under 18 years of age is not allowed to operate a bicycle, or ride upon a bicycle as a passenger upon a street or bikeway or any other public bicycle path or trail unless the person is wearing a helmet.

h. Bicyclists must not ride against traffic.

A bicycle, riding on a roadway, or shoulder of a roadway, shall be operated in the same direction as vehicles on that same roadway.

i. Hand signals.

Bicyclists are required to give hand signals when making turns or moving from lane to lane. To make a left hand turn, the hand and arm must extend horizontally and in making a right hand turn, the arm must extend upward except that the bicyclist may extend the right hand and arm horizontally to the right side of the bicycle.

E. When a Motor Vehicle Driver Will Be Found Negligent in a Bicycle Accident Case.

First of all, in analyzing bicycle accident cases, one must remember that with the exception of the special Vehicle Code sections mentioned in the previous section, and other additional Vehicle Code sections applying to bicycles, a bicyclist has the same duties as a motor vehicle driver in terms in stopping, turning, yielding the right of way and traveling at a safe speed.

The general law of negligence still applies to vehicle/bicycle collisions; that is, irregardless of any Code violation, the driver of a motor vehicle owes a duty of ordinary care to a bicyclist and will be found liable for negligence if he or she fails to act as a reasonable person would in driving the motor vehicle under similar circumstances.

F. Investigation of a Bicycle Accident Case.

i. The police report.

Hopefully, in any serious injury or death bicycle accident case, the police will be called to the scene and will conduct an investigation and prepare a police report. The police report is a public document and can be obtained by the plaintiff, or plaintiff’s attorneys or investigators a reasonable time after it is completed.

Although the police report itself cannot come into evidence at the time of the trial (it can come into evidence, however, at most arbitrations), the findings of the investigating officers can be elicited through the officer’s testimony at trial and can be utilized by the expert witnesses in the case.

Thus, a plaintiff should always obtain a police report in a bicycle accident case.

ii. Investigation by the plaintiff attorney.

Whether or not a police report is created, a plaintiff’s attorney, either personally, through an investigator or both, should investigate the accident scene. It is normally useful if possible for the plaintiff to be present during the investigation.

Obviously, the sooner an accident scene can be investigated the better; however, even some time after an accident, there may be useful evidence to collect at a scene, such as skid marks, vehicle debris, ruts in the road and scrape marks.

In addition, the condition of the accident scene itself may provide useful information for the case, such as the existence of signs, lights and other factors that can contribute to an accident. Pictures should always be taken documenting the condition of the scene as close to the time of the accident as possible, and in appropriate cases, videotapes.

iii. Maintaining the bicycle and helmet.

It is critical that the bicycle be maintained in the exact condition it was in when it came to rest at the time of the accident and, in cases involving head injuries, traumatic brain injuries or wrongful death, that the helmet the plaintiff was wearing at the time of the accident also be maintained. Failure to do so may seriously compromise a plaintiff’s case.

iv. Obtaining the statements of witnesses.

Eye witnesses to a bicycle accident can make or break a case. Plaintiff generally will want to send an investigator to speak to witnesses and obtain signed declarations if the potential testimony is favorable. It is sometimes helpful for the investigator to bring the witness back to the scene to determine distances and other accident factors.

v. Investigation to determine possible defendants other than the motor vehicle driver.

In a bicycle accident case involving a serious injury or death in which the driver of the motor vehicle who collided with the bicycle may not have enough insurance to cover the plaintiff’s damages, consideration should be given to determining whether anybody other than the motor vehicle driver was responsible for the injury.

Thus, the police report should be reviewed, the accident site investigated and witness statements should be obtained to see if there were any other possible defendants, such as people who had illegally parked their cars and blocked the views of the bicycle driver or the motor vehicle driver; a public entity for failure to provide a safe roadway or adequate lighting; a manufacturer, seller or repairer of the bicycle if there was evidence of product failure and any other possible defendants.

G. The Importance of Retaining Bicycle Experts Who Specialize in Bicycle Cases.

i. Bicycle experts should be retained in any serious injury or death case involving a bicycle.

In any serious injury or wrongful death bicycle accident case, the plaintiff should retain an expert who has special expertise in analyzing bicycle accidents.

ii. Reconstruction experts.

Although most accident reconstruction experts and mechanical engineers are qualified to analyze bicycle accidents, it is helpful if the plaintiff retains someone with a special expertise in the subject matter.

iii. Biomedical and biomechanical engineers.

Further, in a case involving a potentially defective helmet, plaintiff will need to retain an engineer with expertise in helmets and a biomechanical or biomedical engineer to establish the causal relationship between the defective helmet and the brain damage or death suffered by the bicyclist. Helmets are not designed to prevent all head injuries; therefore, the testimony of an expert will be required to establish a helmet was defective.

iv. Other potential experts.

Other types of experts can also be helpful in bicycle accident cases. These include safety experts, human factors experts (who analyze the behavior of the parties involved in a collision), material experts, highway design experts, traffic engineers and other experts depending on the case.

v. Photogrammery experts.

Further, serious bicycle accident cases are usually very suitable for photographic, video or film recreations of the accident in which a photography/film expert works with the accident reconstruction expert to film a recreation of the accident or create a computer simulation which will help a jury determine liability.

vi. Plaintiff attorney must be willing to advance the costs of experts.

It is important in a serious bicycle injury or death case, that the plaintiff attorney is able to advance the costs necessary to retain all of the experts needed to win the case. In some clear liability cases, this may involve no need for experts; however, in complex cases, the plaintiff attorney may have to advance tens of thousands of dollars or more on a number of different experts.

H. Analysis of Fault as Between a Bicyclist and Motor Vehicle Operator.

i. The Vehicle Code and negligence law only provide the basis of liability, not an absolute determination of fault.

As previously mentioned, fault is determined in a bicycle accident case under a negligence analysis, with Vehicle Code violations by either the bicyclist or the motor vehicle operator providing “presumptions” of negligence.

ii. Testimony of the parties and witnesses.

The testimony of the bicyclist and the motor vehicle operator will obviously play an important role in fault analysis as will the testimony of any eye witnesses and the investigating police officer.

iii. Focus of experts in disputed liability cases will be the “physical evidence.”

Experts will, to some extent, rely upon the testimony of the participants and witnesses to an accident; however, their more significant focus will be upon the physical evidence which is available such as:

  • damage to the bicycle.
  • type of injuries suffered by the bicyclist.
  • damage to the motor vehicle.
  • skid marks on the road.
  • scrape marks on the road.
  • ruts in the road.
  • point of rest of the bicycle, bicyclist and motor vehicle.
  • point of impact of the bicyclist, bicycle and the motor vehicle. This determination will be based upon the point of rest of the bicycle, bicyclist and motor vehicle, and upon any other physical evidence which indicated where the impact occurred such as debris from the bicycle or motor vehicle, termination of skid marks, scuffs and scrape marks; pieces of clothing of the bicyclist left on the roadway; and blood the bicyclist left on the roadway.
  • condition of the tires of the bicycle after impact.
  • any other physical evidence which will help reconstruct the accident.

I. Special Aspects of Expert Testimony in the Analysis of Bicycle Accident Cases.

i. Analysis of potential failure of component parts of the bicycle.

First, a bicycle expert may want to consider the possibility of component failure in causing the bicycle accident. This might lead to a potential product liability case against the bicycle manufacturer, seller or component manufacturer. Elements that should be considered are:

  • frame failure.
  • wheel component failure.
  • front fender failure.
  • seat failure.
  • front derailleur failure.
  • rear derailleur failure.

The discovery of such a failure may not only lead to a potential case against the product manufacturer, but also the bicycle shop that had repaired the plaintiff’s bicycle.

ii. Analysis of bicycle helmet in head injury, traumatic brain injury and wrongful death cases.

Further, an expert can be retained to consider improper design or failure of the bicycle helmet. The factors to be considered here are:

  • the ability of the cycle helmet to withstand impact.
  • defects in the strapping or fastening mechanisms.
  • whether the type of injury the plaintiff received could have been prevented by an appropriate helmet.

iii. Analysis of cases involving a potential dangerous roadway or bicycle path or potential defective roadway.

A bicycle expert might also want to consider impact of roadway and cycle path design on the accident. This can both explain the mechanism of an accident and lead to a potential dangerous condition case against a public entity or a private possessor or owner of land. The bicycle expert will want to look at:

  • bicycle path design.
  • the bicycle path construction.
  • bicycle path maintenance.
  • roadway construction.
  • roadway maintenance.
  • roadway design.

iv. Factors considered by bicycle accident reconstruction expert.

A number of other important accident factors can be determined by a bicycle expert such as:

  • force on the bicyclist at impact.
  • speed of the bicycle and other vehicle.
  • determination of the perception and reaction time of the bicyclist.
  • determination of the speed of a bicyclist down an incline.
  • trajectory determinations.
  • breaking coefficient of friction formulas.

J. Injuries and Death in Organized Bicycle Race Cases.

i. The effect of signed waivers.

In almost all organized bicycle races or triathlons, the participants have to sign comprehensive waivers before being allowed to participate in the event. These waivers seek to eliminate liability for any injury that occurs as a result of absolutely anything that might happen during the race.

Despite the fact that the existence of the waiver gives the bicycle race organizers and participants almost no incentive to follow safety standards (other than maybe for their own safety), courts have increasingly upheld the validity of the waivers.

ii. Assumption of risk.

Further, there is an assumption of risk element to anyone who participates in a bicycle race or triathlon. In California, assumption of risk can bar a plaintiff from any recovery even if the race organizer was clearly negligent.

iii. Bicycle race accidents are difficult but not impossible.

These factors make these cases difficult, but not necessarily impossible. There are basic risks in a bicycle race for which a release should be valid.

However, there are other factors such as poorly designed raceways, an inadequate number of spotters, poor road conditions and an improper mix of skilled and unskilled riders which all increase the risk of an accident and all can be prevented by the reasonable foresight of the race organizers.

This still may not be enough for a plaintiff to establish liability; however, if the plaintiff can establish that they were fraudulently induced to sign the release by misrepresentations in the release form, this may be a path to liability.

Also, despite the release, plaintiff would still be able to bring an action for product liability if the injury or death was caused by the failure of the plaintiff’s bicycle or another bicycle which caused the accident or the failure of the plaintiff’s helmet.

Further, plaintiff can make an argument that the release should not cover unforeseeable hazards such as negligently maintained open and closed courses, improper traffic monitoring on open and closed courses and improperly maintained crowd control when crowd control is guaranteed to the contestants.

K. Compensatory Damages in Bicycle Accident Cases.

In a bicycle accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented

L. How Soon Must a Case Be Brought After a Bicycle Accident?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

M. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

N. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

O. Considerations in Evaluating Cases for Settlement.

i. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

ii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

iii. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing his or her own injury, then their potential jury award is reduced on the basis of their percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

iv. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.

v. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.

Aggravated liability situations, such as a defendant who was found to be driving drunk or a defendant who intentionally hurts a plaintiff will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

vi. Punitive damage exposure.

If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

vii. The character and credibility of the parties.

A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

viii. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.

ix. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

x. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xi. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xiii. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xiv. Policy limits and defendant’s assets.

No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xv. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xvi. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xvii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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