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Legally Speaking – A Victim Of Circumstance

By December 22, 2005October 23rd, 2021No Comments

Published Dec. 22, 2005

By Bob Mionske

for VeloNews

Dear Bob;

I was involved in an accident on my bike. I swerved to avoid a crazy cab driver and ran into a pedestrian and knocked her over. She was injured in the collision, so I called an ambulance and waited with her to make sure she would be alright. I also gave her all of my contact information.Now she’s hired an attorney who is threatening to sue me. It doesn’t seem fair that I can be sued for an accident caused by the cab driver. Can I be held responsible for this accident?

New York

Dear A.B.;

Wow, you got the double whammy there—being run off the road, and nowyou’re being sued. Before I get to the issues involved, let me say that after the accident, you did everything you should have done. As we’ll see,this will help your case, so that’s one thing in your favor, right off the bat.

Now, what are we dealing with here? There are a couple of possibilities. First, let’s define a couple of terms. You are not being threatened with criminal prosecution; you are being threatened with a civil action (a lawsuit). If a lawsuit is filed, the person suing you—the pedestrian—is the plaintiff, and you are the defendant. In order to prevail on her claim, the plaintiff must prove her case. If the plaintiff proves her case, you will be found liable, and may be ordered to pay damages. If the plaintiff fails to prove her case, you will not be found liable, the lawsuit will be dismissed, and generally, the plaintiff will be barred from filing another suit against you on a claim arising from the same set of circumstances.

Although it seems unlikely, the plaintiff may be threatening you with a lawsuit for battery—the intentional infliction of a harmful or offensive bodily contact. However, because the plaintiff would have to prove that you intended to collide with her, it just doesn’t seem likely. Under the circumstances, this would be difficult, if not impossible, to prove. Remember, you stopped to render aid, which is powerful evidence that the collision was not intentional.

For this reason, it is far more likely that you are facing a threat of a lawsuit for negligence.Negligence can be defined as an act, or failure to act, which falls below the standard of duty of care established by law for the protection of others against unreasonable risk of harm. I’ll break the negligence suit down into six elements that must be proved (for more on negligence, see my October 6, 2005 column, The Perfect Stone):

  • An Act or Actionable Omission by the defendant
  • A Duty of Due Care
  • A Breach of that Duty
  • Actual Cause
  • Proximate Cause
  • Damages

In a negligence suit, the Act is the physical act of steering and pedaling your bicycle. It could also mean, under a different set of circumstances,the failure to act.

The duty of due care is the legal duty that every person owes to every other person to behave as a reasonable person would under similar circumstances—a legal standard of conduct to protect others from unreasonable risk of harm. Using the facts of your case, you would have a duty of due care to ride your bicycle in a manner that would protect others from unreasonable risk of harm. The reasonable person standard is determined by the “trier of fact”—most likely a jury, but occasionally a judge—and is based on what the jury (or judge) thinks a reasonable person would do under the same circumstances. It is not based on what you personally believe to be reasonable.

A breach of duty occurs when a person’s behavior exposes others to unreasonable risk of harm, either by acting or failing to act as a reasonable person would.

Those first three elements—an act or failure to act, a duty of due care, and a breach of duty—when combined form a negligent act. Now let’s look at an example: suppose there is a duty of due care to not ride your bicycle on a crowded sidewalk at a high rate of speed. This means that the jury has determined that a reasonable person would not ride their bicycle in this manner. If you do ride your bicycle on a crowded sidewalk at a high rate of speed, that is a breachof duty, and the physical act of steering and pedaling is the act. Thus,the act of riding your bicycle on the sidewalk at a high rate of speed would be a negligent act.

Now let’s look at causation. In a suit for negligence, there are two types of causation that must be proved: actual causation and proximate causation. To determine actual causation we ask whether the defendant was the actual cause of the damage to the plaintiff. We also consider proximate causation, which is the issue of forseeability; when we consider the negligent act we ask whether the damages were foreseeable or whether they are too remotely connected to the incident to consider.Now, let’s go back to the riding on the sidewalk example: it would be foreseeable that riding a bicycle on a crowded sidewalk at a high rate of speed would result in a collision with somebody or something. It would not be foreseeable that somebody observing you riding your bicycle on a crowded sidewalk at a high rate of speed from a window 20 stories above would choke on his donut and die. In this example, one could show proximate causation for the negligent act of riding on the sidewalk that resulted in injury to a pedestrian, but could not show proximate causation for the negligent act of riding on the sidewalk that resulted in injury to the donut victim.

Finally, after the plaintiff has shown a negligent act and causation, the plaintiff must show damages—either physical (personal injury) or economic (financial) or both.

A review of the facts

Now, let’s apply the facts of your case to a negligence lawsuit. You were riding your bike, and swerved to avoid a crazy cab driver and ran into a pedestrian, knocking her down. There are three things we need to examine here: the cab driver’s actions, the pedestrian’s actions, and your actions. We’ll examine the cab driver and the pedestrian in a moment, but first, let’s look at how the facts apply to you.

The first element of a negligent act—the physical act of steering and pedaling—is present.

The second element of a negligent act—a duty of due care—depends on what a jury would think a reasonable person would do under the same circumstances. As one example, a jury might determine that a reasonable person under the same circumstances would ride their bicycle in observance of the traffic laws. In fact, if you were riding in observance of the traffic laws, you could introduce that as evidence that you were acting as a reasonable person would under the same circumstances. If a jury determined that riding in observance of the traffic laws is what a reasonable person would do under the same circumstances, and if you were riding your bicycle as a reasonable person would, then the plaintiff would be unable to prove a negligent act, and the case would be dismissed. On the other hand, if you were in some way violating the traffic laws while riding, the plaintiff would be able to prove a negligent act.

Let’s assume for a moment that you did act negligently. There was physical injury, so the plaintiff suffered damages. The only question remaining would be causation. Actual causation—your riding into the pedestrian—would be easy to prove. What about proximate causation—was the injury resulting from your negligent act foreseeable? If so, the plaintiff will prove her case. If not, the case will be dismissed.

Now—what about the pedestrian’s role in this accident? The location of the pedestrian may have some significance in the outcome of this case. For example, if the pedestrian was on the sidewalk, or in a crosswalk, the pedestrian would have the right of way. However, if the pedestrianwas crossing the street at any point other than a marked crosswalk, the vehicles have the right of way. So if the pedestrian was not on the sidewalk, or in a crosswalk, two problems are raised for her case. First, you had the right of way; second, there was no foreseeability, and thus, no causation. Additionally, if the pedestrian was jaywalking, and caused damage to you or your bicycle, you could file a lawsuit against her, which would give you a stronger position from which to reason with her attorney.

Finally, there’s the question of the cab driver. Remember him? The guy whose erratic driving caused you to swerve into the pedestrian? You will be relieved to know that the law doesn’t let him off the hook, and may excuse you.

First, in an emergency situation that is not created by your own negligence—such as swerving to avoid an accident—the courts apply a different standard of due care. Second, even if you committed an otherwise negligent act, such as not obeying the traffic laws, the cab driver’s role in this accident may be the true proximate cause of this accident; in that case, the cab driver’s erratic driving may be considered a superseding act that shifts liability for the accident away from you, and onto the cab driver. Finally, let’s say that you and the cab driver were equally engaged in a mutual act of road rage, the cab driver swerved into you, and you swerved into the pedestrian. Under New York’s comparative negligence law, the jury may apportion out liability to each of the parties they findliable, including the plaintiff. Thus, as one example, they might find the cab driver 50-percent liable, you 30-percent liable, and a jaywalking plaintiff 10-percent liable.

You are not required to produce witnesses to testify regarding the cab driver; your own testimony is admissible as evidence. However, having witnesses testify regarding the cab driver can only help your case, so you should make every effort to locate witnesses. Because you are facing the threat of a lawsuit, you should consult withan attorney immediately. If you have an auto insurance policy, ask the attorney if your policy covers this type of accident. In addition to receiving legal advice, hiring an attorney to represent you means that the plaintiff’s attorney cannot press you for settlement directly—he or she will be required to deal with you through your attorney, and that will help ease some of your worry.

Good luck,


(Research and drafting assistance provided by Rick Bernardi-Law Student-Lewis and Clark Law School)


This article, Victim of Circumstance, was originally published on VeloNews on December 22, 2005.

Now read the fine print:
Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
If you have a cycling-related legal question, please send it to Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at
Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.