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Scott McDonald and Associates PLLC

My opinion on 'presumptive liability'

King 5 News recently ran a spot on making motorists presumptively liable for injuries to bicyclists. Presumptive liability means that, unless the driver of a car can definitively prove otherwise, the driver is assumed to be at fault for the collision. This is a good idea. In many cases the insurance companies assert comparative fault on the injured person despite little evidence of the same. For example, in a recent case I litigated the insurance company asserted my client was 20% at fault because the other driver had “control of the intersection” even though the other driver was legally drunk and ran a red light. In that case, as trial was approaching, the insurance company paid up but the insurance company’s stubbornness forced my client to file a lawsuit, thus incurring costs of litigation.

In the bicycle versus motor vehicle collisions there are many small issues the insurance company can assert in an attempt to deny an injured bicyclist full payment for the harm caused. In one case I litigated the driver’s insurance company asserted that the bicyclist, who had right of way, should have seen that the offending driver wasn’t looking before he proceeded. This defense was allowed to be asserted. This unfairly reduced my client’s damages. If the collision causes the death of the bicyclist then this presumption would allow liability to be established where it may otherwise be impossible (given the bicyclist would be unable to testify).

There are also many drivers, some of whom end up on juries, that don’t like to share the road with bicyclists. If jurors with this prejudice have the opportunity to use spurious claims of comparative fault they will reduce the damages unfairly.

Finally, the motorist will be able to overcome the presumption of liability by presenting evidence that the bicyclist caused the collision. This proposed law would work as a proof shifting tool so that the process is more just.   While I have had great success in the past with bicycle accidents, this law would ultimately serve to better protect Washington cyclists in collisions with motorists. 

If you have been injured biking, I encourage you to contact me so we can discuss how to assure you get the help you need. 


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