Roadrage Intentional hit during pass 2-up helmet only gear (texas)

[Josh1234]

I read an article on the web somewhere (so it MUST be true) written by an attorney who goes to court all the time as a motorcycle expert.  The short story is that he DID mention that even if someone hits you, the court can examine if what YOU were doing means you were more likely to get injured.  You're culpable for your own actions, and it's much easier to sue if you were being law abiding and as safe as possible.

 

Even if it's only "less damages" when the rides wins the lawsuit, what percentage of this accident was the motorcyclist's fault?  The defense for the losing side will almost certainly say that the rider contributed to the accident significantly (and they'll be correct).

 

That said, I still hope they throw the book at the driver.  Shit aint right.

[Gump]

This isn't true, I know someone with no motorcycle license and someone hit them. The driver was charged even though he shouldn't have been on the road. The driver even tried to fight it.

I'll try and find the ORC on it. Cops don't know the law, they'll charge you sure, but a skillful attorney would get it dismissed. Seen it, dude ran a red light, gets hit, sited for the accident. Other driver admitted what speed he was going which was unlawful. Charges dropped. Other party can't sue.

Edited October 20, 2015 by Gump

[ScubaCinci]

The guys is a real winner:

http://www.yourglenrosetx.com/article/20151019/NEWS/151019367

 

 

However, this is not the first time Crum has had a run in with the law in Hood County, or Somervell County for that matter, and is also not the first time he has been accused of misconduct with a motor vehicle, according to arrest and court records.

On July 28, 1989, Crum was arrested by Arlington police for assault and family violence, and later charged and sentenced to one-year's probation. He was also force to pay an undisclosed restitution. Fast forward a few years to Aug. 23, 1993, Crum was picked up by Granbury PD for silent or abusive calls to a 9-1-1 service – a class B misdemeanor that was later dismissed after he recognized himself as the culprit prior to the case being deferred on Sept. 9, 1993.

All illegal, but not exactly relatable to the current charge.

Six months and change later, Crum was scooped up by Somervell County sheriff’s deputies for unauthorized use of a motor vehicle – a 3rd degree felony he plead no contest to. Crum was convicted of the charge on Sept. 26, 1994, which resulted in an $87 court cost, 80 hours of community service and two years of community supervision.

Thirteen years later, he was again found to be improperly using a vehicle by the Somervell County Sheriff’s Department. Crum was observed to be driving recklessly on March 28, 2007, but this time was also charged with making a terroristic threat. Despite pleading 'not guilty' to the charge of making a terroristic threat, he was later convicted of both charges and confined to two years in jail, while being forced to pay $500 in court fines and a $612 court fines.

[Gixxus Christ!]

I'll try and find the ORC on it. Cops don't know the law, they'll charge you sure, but a skillful attorney would get it dismissed. Seen it, dude ran a red light, gets hit, sited for the accident. Other driver admitted what speed he was going which was unlawful. Charges dropped. Other party can't sue.

This does not sound right. Right of way trumps speed. I was speeding and a church van pulled out of a gas station across 5 lanes of traffic and I had no choice but to hit him. Cops determined my speed to be 45 in a 35 by the skid marks and damage to the vehicles. Other driver was cited and his insurance paid out.

[Gump]

This does not sound right. Right of way trumps speed. I was speeding and a church van pulled out of a gas station across 5 lanes of traffic and I had no choice but to hit him. Cops determined my speed to be 45 in a 35 by the skid marks and damage to the vehicles. Other driver was cited and his insurance paid out.

In my example it got treated as a no-fault. Each party and their insurance companies are on their own. Might not sound right but laws arent always fair. Judges also might not like it but they can't argue case law or whatever it's called.

Edited October 20, 2015 by Gump

[Scruit]

In Ohio you cannot be charged if the other vehicle was operating unlawfully. Which the bike seemingly was.

 

Cite?

[Scruit]

This does not sound right. Right of way trumps speed. I was speeding and a church van pulled out of a gas station across 5 lanes of traffic and I had no choice but to hit him. Cops determined my speed to be 45 in a 35 by the skid marks and damage to the vehicles. Other driver was cited and his insurance paid out.

 

IANAL:  Your speed is only really going to be a factor if it is determined that you were going so fast that a reasonable driver would have thought ti was safe to emerge based upon your distance.  45 in a 35 is not an unexpected speed.  90 in a 35, sure.

[Scruit]

IANAL:

 

I got into a debate with a co-worker of mine who held two strong opinions;  "If you have a cast or bandage on our arm or leg then it is illegal to drive."  and "If you are driving illegally then any accident is automatically your fault".   My opinions were that "a cast or bandage is only relevant if it interferes with your ability to drive" and "Accident liability is about the facts of the accident, not about the driver".

 

I asked her who would be at fault if she rear-ended a drunk driver that was waiting at a red light. She said the drunk driver "because he shouldn't be on the road".  She didn't see any problem with her logic.

 

In truth, the accident liability would be decided without regard to his being drunk.  And his would be processed for DUI in the same way as if he'd been pulled over.  Thereby, each person is punished for their relevant actions.

 

 

Very similar logic applies to the Texas case:

 

 - The fact that the biker had no valid license will likely get him a ticket, but is not relevant to the accident.

 - The illegal pass was not the cause of the accident.  The driver swerving was the cause.  If the bike's illegal pass had put him in a place where the driver collided with him while making a maneuver in good faith (such as joining a turn lane and hitting a bike that had been passing on the shoulder leading up to the turn lane) then the illegal maneuver of the bike is entirely relevant.   However, any attempt to argue that the bike shouldn't have been there is irrelevant IF the court finds the swerve was intentional. 

 - There are 4 different legal paths to consider:

   a) The biker's traffic infractions.  No license & illegal pass.  Should be cited. 

   b) The driver's traffic infractions.   Failure to maintain lane.  Likely will not be cited in deference to the felony charge for the same act.

   c) Tort liability for the accident damages.   I don't believe the biker is at all at fault for the accident as his actions did not cause the vehicles to come into conflict.  The driver should shoulder all liability, IMHO, however it would not surprise me if his insurance tries to get out of a payout on the basis that this was an intentional act.  They will still likely wind up paying out because although the swerve is very likely to be ruled intentional, it's a different matter to prove that the *collision* was intentional, which is the actual cause of the damages.  The driver could claim that he was trying to dissuade the illegal pass, not trying to actually HIT the bike. 

   d) Driver's criminal liability.   This is clear, although the video is going to be key evidence if he fights it based upon his new "Stung by a bug" story.  After seeing the video I don't believe the bug story one bit.  The real sticking point is the need to prove that the *collision* itself was intentional, or can they secure a conviction based upon the mens rea of reckless intent.   Even though I don't feel he was overcharged, I do expect a plea deal.

Edited October 20, 2015 by Scruit

[Steve Butters]

In Ohio you cannot be charged if the other vehicle was operating unlawfully. Which the bike seemingly was.

You're wrong on this. Sure it worked out that way for your one scenario, but this blanket statement is false. You cannot intentionally cause bodily harm to somebody because they're breaking the law while driving. You're smart enough to understand that I'm sure. Like scruit said below, if they can prove that the swerve was intentional, then it becomes irrelevant. It's two separate criminal actions. Otherwise people would just run over every motorcycle they see doing 5mph over and then laugh and claim immunity.

Edited October 20, 2015 by Steve Butters

[Scruit]

I was hit by a suspended licensee, driving a car that didn't belong to him. He turned left in front of me, I hit him around 50 mph (limit was 45) and my face broke my windshield. After the docs fixed my face (yeah, yeah...) I required some plastic surgery and whatnots. I spoke with an attorney and he told me I was basically fucked because I wasn't wearing my safety belt. The insurance company still wrote me a check for close to $30k, but I had to make that happen on my own. 

 

Moral of the story... Attorneys are also dumb. 

 

I can understand the attorney's advice that any payout could be less than if you had been wearing your belt as the belt would likely have mitigated the damages.  That doesn't automatically mean you can't collect - just that you may wind up with a 80/20 or 70/30 split in liability for the bills. 

 

Or the insurance company may just pay out what it considers to be a "small" amount to head off the risk of you getting a more aggressive lawyer.

 

EDIT:

 

Your lawyer was likely thinking about this when he advised you:

 

http://www.selffundingmagazine.com/article/subrogation-and-the-seat-belt-defense-.html

On the other hand, 15 states do have some mechanism in place which could result in reduction of plaintiff’s damages for not having a seat belt on at the time of an accident: Alaska, Arizona, California, Colorado, Florida, Georgia, Iowa, Michigan, Missouri, New Jersey, New York, Ohio, Oregon, West Virginia and Wisconsin. These states rationalize that while the accident itself may have been caused by the driver’s negligence, the actual injury for which damages are sought is often exacerbated by the “second collision” which occurs within the plaintiff’s vehicle as a result of his/her not wearing a seat belt.

Edited October 20, 2015 by Scruit

[Gump]

You're wrong on this. Sure it worked out that way for your one scenario, but this blanket statement is false. You cannot intentionally cause bodily harm to somebody because they're breaking the law while driving. You're smart enough to understand that I'm sure. Like scruit said below, if they can prove that the swerve was intentional, then it becomes irrelevant. It's two separate criminal actions. Otherwise people would just run over every motorcycle they see doing 5mph over and then laugh and claim immunity.

Agree. Might be different if the cager kept his mouth shut.

[redkow97]

some of you are blurring the lines between criminal and civil actions.

 

Civil actions to show negligence can be contested based on contributory or comparative negligence.  I honestly don't know which theory ohio employs, because I don't practice civil law.  There's also been some description of "negligence per se" (although not by name).  What that means is that when a person is breaking a law that is intended to protect the type and class of person injured by the actual violation of that law, the law-breaker is automatically deemed "negligent" in a civil setting.  That doesn't apply in criminal cases.

 

The most likely way that woudl come into play is if the passenger on the motorcycle sues the 'driver' of the motorcycle.  He was making an illegal pass, and his passenger is arguably of the type and class of person no-passing laws are designed to protect.

[Gixxus Christ!]

The pass was legal. In Texas if a car is impeding traffic you can pass on a double yellow provided you don't exceed the speed limit. Old man was doing 45. Bike was doing 63 at impact. Speed limit was 65.

This is based on the latest info I can find on the internet.

[redkow97]

The pass was legal. In Texas if a car is impeding traffic you can pass on a double yellow provided you don't exceed the speed limit. Old man was doing 45. Bike was doing 63 at impact. Speed limit was 65.

This is based on the latest info I can find on the internet.

 

If that's true then it eliminates a negligence per se argument, and weakens any negligence arguments against the rider. 

 

I think the reason this debate is spiraling is because we're trying to address too many questions at the same time.  The driver of the car is clearly committing a crime.  I don't think anyone is contesting that.   His civil liability (as I intended to point out in my earlier post) is more of a question of fact, and as a result, a more interesting question (to me).

 

Whether or not the rider was committing a crime is (apparently) at issue.  If he wasn't exceeding teh speed limit and could safely complete a pass around the car, then he may not be committing a crime.  Whether or not he could safely see far enough and complete the passing maneuver are factual issues that a jury would decide though.

[durk]

The game you play passing in a double yellow. I've had people try to run me off the road on a couple occasions.

But it's the risk you take.

I too have experienced this but I don't get what makes ppl feel they have to police the road. I go with Tonik's advice and stay wide.

Edited October 20, 2015 by durk

[sprocket226]

That's freakin' crazy.

Hope the woman comes out okay, and the asshole who hit them spends a lot of time behind bars.

My aunt lives in Granbury, and she rides, gotta let her know about this.

[jschaf]

The driver needs to be locked up for some years. I have come across a few like this in Ohio. The rider definitely could have avoided the collision by looking around the car instead of target fixating. There was still at least a clear half lane. I feel real sorry for the pillion. She didn't deserve this outcome at all.

[ScubaCinci]

What kills me is the gall of the guy to do it with another car right behind him...regardless of the video there's an eyewitness right there and not a single fuck was given.

[Connie14]

The driver of the car should be thrown off the side of a truck at 60mph, so he can feel the pain that his actions inflicted upon the riders. Too bad that it would be considered cruel and unusual punishment.

[Steve Butters]

According to the riders Facebook, he says the man mistook him for a different rider who he was disgruntled with and he was slowing down intentionally waiting for the bike to pass so he could hit him... Rider claims car would have come to a complete stop if he had not initiated the pass.

This old dude got in trouble for chasing a few guys who were riding on the road in a golf cart because he didn't like how loud the cart was.. Chased them down with a shotgun hanging out the window and then stood in their driveway waiting to confront them... Was charged with making terroristic threats when arrested for it

He's just off his rocker

[Gump]

Damn

[Scruit]

Given his history (psychotic turdmuppet), and his age (68), he could easily be jailed until he's too feeble to pull that shit again if the judge wants.  He's facing a maximum of 20 years per count.

 

He also needs a lifetime driver's license revocation given his psychosis manifests itself while he's driving.

[Gixxus Christ!]

Lmfao at turdmuppet

[ScubaCinci]

turdmuppet

[Ryan_c_F]

I'm stealing turdmuppet for my own uses. Good turn of phrase, Scruit.