My 12-year-old son made a terrible decision to ride our uninsured ATV on a public road about three miles from our house and was hit by a car. My husband and I were at work. He ended up fleeing the scene because he was scared.
Since I wasn’t at the accident and he is 12 the car driver’s insurance adjuster did very little to investigate. We received a subrogation letter from them stating that we were legally responsible for the damages to their insured.
I understand the ATV is not legal on public roads and we had no insurance, but if they would have done a thorough investigation, they would see that the woman driving the car was at fault in all other aspects of the accident.
She was following behind our son as he rode the ATV. When his hat flew off, he saw no oncoming traffic so he went to make a sharp U-turn (in the opposite lane) and at that same time she decided to pass him. That’s when she hit him in the back left side of the ATV.
I met her at the insurance office. She made the comment that she had seen him and saw his hat fly off, but he never saw her until a split second before she hit him.
As an adult we are in control of our vehicles and if she saw his hat fly off why didn’t she predict his next move and back off??
My question is, do I have a fair chance on this case if I hire an attorney? I appreciate your insight.
Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.
If you hired an attorney for this case, you’d likely have a fair chance of assigning some of the blame to the woman driving the car.
Shared Fault for the Accident
In automobile accidents, and personal injury cases in general, the person responsible for causing an accident is the negligent party.
Negligence means that someone failed to act reasonably under the circumstances, and as a result, caused an accident that led to someone’s injuries.
Here, the woman’s insurance adjuster is trying to assign all of the blame for the accident to your son.
The facts show that he does bear some of the blame for the incident. He was driving an ATV on a public road, and it seems that he made a sudden turn to get his hat without signaling in any way.
There are times when a person injured in an accident is also responsible for causing the accident. In these cases, we say that the injured party is comparatively negligent. In other words, they helped cause the incident and thereby contributed to their injuries.
If an injured party helped cause an accident, they could still try to receive compensation for their injuries. However, the amount that they can recover gets reduced by their percentage of fault. For example, if a person suffered injuries of $1,000, but was 25 percent at fault for the accident, they’d only receive $750.
The facts here suggest that the woman driver was comparatively negligent. It seems that she was driving close to your son. Maybe even too close, considering your son is 12 and he was driving an ATV. A reasonable driver in that situation maybe should have given your son extra space to help avoid an accident.
Further, as you stated in your email, it seems that she should have slowed down after seeing your son’s hat. But it doesn’t seem like that was the case.
An attorney could contact the adjuster and help convince them that the woman helped contribute to the incident. If convincing, then the woman’s compensation would get reduced or she may not receive any compensation at all.
Oklahoma and Modified Comparative Fault
Oklahoma is a modified comparative fault state. This means that it imposes modified comparative fault laws.
In a modified comparative fault state, a person can only receive compensation for an accident if they were 50 percent, or less, at fault for causing the accident. If a person was 51 percent, or more, at fault for causing an incident, then legally they’re entitled to zero compensation.
The applicable Oklahoma law is 23 OK Stat 23-13(2014).
An attorney in your case would likely try to argue that the woman was 51 percent or more at fault for the incident. If successful, then she can’t receive compensation for her injuries.
Learn more here: ATV Accident Settlements
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
We wish you the best with your claim,
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