Hit by truck while on picnic bench...

by Jennifer
(Lafayette, Oregon)

My daughter was sleeping on a picnic bench in 2014 at a county fair and a vehicle backed up and hit her. The vehicle pushed my child and the bench, pining them against a fence and causing injury to her shoulder. My daughter went into shock, and they took her by ambulance to a hospital where they determined her shoulder was fractured.

She the visited another Dr. who stated he felt it was not fractured and ordered physical therapy and 3 weeks off work. This injury caused pain and huge amounts of stress and anxiety on my child. For over a year the pain has not stopped, just endless problems and no answers.

Tests for the shoulder have came back good. We have had two different MRIs over the year, and are very thankful for the good outcomes. The driver's car insurance stated it has been over a year and it's not their problem. They have also demanded my daughter's psychology (therapist) records, but I refused. This to me violates her privacy and is a HIPAA issue.

I feel cornered personally and financially. This individual was negligent, he parked in a crowded area he should never of been in and backed up and hit my child. He was an employee of the county fair the event was being held at. And his personal car insurance is the one handling all of it.

Why is my daughter paying the price by not receiving proper care? I understand parts of this problem have been because of the doctor's run around, but now my hands seem to be tied by the driver's insurance. They offered her $2000, but to me this is insane.

She may need more treatment if this problem turns out to be in her neck, and with state insurance her treatment is all up in the air (state insurance is paying for the mental health part since she was seeing them for other reasons as well). What can I do? Thanks.

Visitor Question:
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ANSWER for "Hit by truck while on picnic bench...":

Jennifer (Lafayette, Oregon):

If your daughter was taken by ambulance to the hospital there is likely a police report, or at a minimum, an ambulance incident report. Be sure to review those documents and submit them to the insurance company.

If the police were dispatched to the scene, their report may state whether or not the driver was at fault, and if so, whether the driver was issued a traffic citation. That citation can be strong evidence in proving fault.

From the facts you present, it appears the driver may have been negligent. However, it can be argued park benches were not made for sleeping, but rather for sitting. Inasmuch as your daughter was in a prone position sleeping, it can be argued the driver may have looked and was unable to see her.

In addition, it can be argued if your daughter hadn't been sleeping she might have heard the vehicle backing up.

The State of Oregon follows the Modified Comparative Negligence Doctrine. Under this legal doctrine the victim (your daughter) is entitled to reimbursement for her damages as long as her comparative negligence in the accident didn't exceed 51%.

If her negligence is determined to be 51% or higher, by law she is entitled to no compensation from the driver's insurance company, or the state fair's insurance company. If her comparative negligence is 50% or lower, she may be entitled to an amount of compensation representing the percentage of fault of the driver.

Learn more about 51% modified comparative fault here.

The comparative negligence determination is normally decided by the insurance companies involved in the claim for damages. As the victim, if your daughter does not agree with that percentage determination, she can file a lawsuit and let a judge or jury decide the percentage of her own negligence, if any.

To read Oregon's statute (law) on comparative negligence see:
Section 31-600 of the Oregon Revised Statutes

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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