Backing out of the Drive-way [Auto-Accident]

[goshtic]

What is the name of my state? California


Hello, new here and I need some advice. Basically just want to know who's at fault in this situation.

A parked car #1 getting ready to exit their home drive-way, rears into car #2 that was just momentarily parked no more than 3 minutes ago infront of the car's #1 home street side-curve slightly blocking the drive-way. As that car #1 is trying to merge into the street lane and the car #2 suddenly tries to take off cutting into and blocking car #1 drive-way's exit and that's where the impact occurs. Basically the point of impact is between the pavement junction of the street and sidewalk.

Now I understand it would be car #1 at fault, if #1 hit #2 as a parked vehicle or hitting #2 as an incoming traffic (car#1 backing all the way out toward the street). However, in this case, when both cars were techically parked and car #1 was has made the motion first to move and then all of a sudden car #2 decide to also moved and resulted an impact from car #1.

Keep in mind Car #1 was fully aware of Car #2's position before proceeding to back out of the drive way at the speed of where one is slowly releasing the breaks and backing out. As Car #1 is coming out of the drive-way. Car #2 should've been fully aware of a vehicle attempting to leave the drive-way, but yet proceeds to cut in front of Car #1. Now would this still be Car #1 fault for not stopping in time or Car #2 fault's for failure to yield to an already moving vechile, specially when car #1 is let to assume Car #2 had just parked at the curve and in no way can predict that car #2 would suddenly be taking off in an instantous moment.

Here's a diagram illustration of what I mean, it's a crappy Paint job. So try to bear with me.

http://img411.imageshack.us/img411/9229/diagramfig1hz6.jpg
If that link doesn't work: http:// img411.imageshack.us/img411/9229/diagramfig1hz6.jpg

The resulting impact from Car #1 left a minor dent on Car #2 passenger side door. The est. repair cost is around $450. While Car #1 only suffer a minor scratch on the rear bumper.

Thanks in advance for any info/advice you can provide me.
- Goshtic.

 

[TomD1974]

If I understand your detailed explanation correctly, it seems pretty clear that the car backing out of the driveway is at fault because of its intrusion into the public right-of-way. Vehicles driving on the road do not have to yield to vehicles who are attempting to come out of driveways. And if the second car was parked, legally or not, it would STILL be the fault of car #1.

 

[goshtic]

Hmm. I understand deliberately hitting a car parked illegally or not is the fault of the one that made the impact. I do understand cars moving on the road has the right of way. But if you're saying it's still Car #1 fault in a case where Car #2 'was' parked at the curve and decided to 'move' toward Car #1's drive way path at the instantous moment of Car #2 backing out and allowing an accident to occur, it's still the fault of Car #1 for backing into Car #2? So if a vechile parked on the side road waiting for a car coming out of the drive-way and you move infront of that car's driveway and it hits your vehicle. It would be the fault of that car's backing into you?

If you say it's still Car #1 fault. then that's quite constrive. That would basically mean I can go find some rich folk's drive-way and parked at their curve and wait for them to back out, as they backed out toward the sidewalk and I move my car in their driveway path and allow them to hit my side door, it wouldn't be my fault?

Then let me ask you in what cases that it would not be their fault for Car #1?

 

[tranquility]

When there's intent, it's no longer negligence, but trespass to chattel or battery. "Oops" has one set of rules and intentionally doing something has another.

 

[CdwJava]

I agree with Tranq, intent of #2 is important. If he cut in your way KNOWING that you were pulling out and with the intent that you should hit him, then we may have a criminal act as opposed to a traffic accident.

In most instances under CA law and collision reporting procedures, the vehicle ENTERING the street from the driveway would be required to yield to the vehicle in the street (that includes at the curb).

Generally, it is not relevant when it comes to assigning fault in the police report whether the driver of vehicle #2 "should" have known #1 was backing out of the driveway. I can see that this would likely be listed with fault assigned to #1 and an associated factor of a sudden start being assigned to #2. However, that still gives the point on the license to #1.

Was a police report taken? If not, then no point should be assigned. And under all circumstances, insurance companies are free to assign blame as they wish - they can even share the blame.

- Carl

 

[goshtic]

Thanks for the responses, they've been informative.

There was no police report taken.

So from what I understand, it seems the driver on the street, parked or not, and not having to really pay attention to their surroundings can more than likely get away with not being at fault, if a car backed into them?

The intent is important, I agree, but they can always play it in denial; Car#2: "I parked my car on the curb to make a quick phone call and tried to move back onto the street when I was done with the call, but suddenly a car backed out from the drive way rear-ended my passenger side door, as I was trying to move into street lane."

If car #2 pay attentioned to his/her surrounding and could've prevented the accident by noticing a vechile backing out and remained parked at the curb (and not move into the way), wouldn't it be common sense that Car #2 is liable for the accident, since if he/she didn't move into the drive-way path, there wouldn't be an accident? Since how can Car #1 tell if the parked car is going to take off or not, unable to determine such spontaneous moments, when car #2 is parked so close to the drive-way path.

 

[CdwJava]

There was no police report taken.

Then you need only deal with insurance companies. What does your company have to say?

So from what I understand, it seems the driver on the street, parked or not, and not having to really pay attention to their surroundings can more than likely get away with not being at fault, if a car backed into them?

Nope, didn't say that. However, the car ont he street generally DOES have the right away. but, that's when the matter involves a police report. Insurance companies use whatever they want to decide fault - heck, the can use a Ouija board if they wish.

The intent is important, I agree, but they can always play it in denial; Car#2: "I parked my car on the curb to make a quick phone call and tried to move back onto the street when I was done with the call, but suddenly a car backed out from the drive way rear-ended my passenger side door, as I was trying to move into street lane."

And until mind-reading becomes acceptable in court, that kind of argument would throw the fault right back on you.

If car #2 pay attentioned to his/her surrounding and could've prevented the accident by noticing a vechile backing out and remained parked at the curb (and not move into the way)

Per the Vehicle Code, the backing vehicle is required to yield to traffic on the street.

wouldn't it be common sense that Car #2 is liable for the accident, since if he/she didn't move into the drive-way path, there wouldn't be an accident?

Alternatively, had you been watching, you would have seen the car move.

A civil court or an insurance company might see things your way. I can almost guarantee that a police report would not ... in fact, it almost certainly COULD not have done so. Lucky for you, none was taken.

Again, what does YOUR insurance company have to say? I presume you were insured, correct?

- Carl

 

[goshtic]

I do not know what the insurance company have to say yet, as they just received the full detail of the report today and undergoing with the reviewing.

Per the Vehicle Code, the backing vehicle is required to yield to traffic on the street.

What about parked vehicle on the street trying to move onto the street's traffic? A parked car don't have to yield to a car backing out of the drive way? They can stop and go as they please?

Alternatively, had you been watching, you would have seen the car move.

Not possible, when car #1 checking traffic in both ways on the street at the sidewalk curb, and as car #1 look toward their right to check for traffic, and see that car #2 remain parked on the right view, is remain parked, and as car #1 look to their left to check traffic in that direction, and they tell themself, "Ok, it's safe to back out. No incoming traffic in sight at all." and release the break then--bump. Car #1 rear-end to Car #2 that was parked at the side curb. Because, suddenly the parked car #2 is now next to car #1's rear-end.

It's impossible for the driver backing out to know if the parked car is going to suddenly move or not, it being parked there tells Car #1, that Car #2 is not moving, then it's safe for Car #1 to back out. Whereas in that Car #2 driver's point of view, him/her seeing Car #1 backing out should tell him/her, oh ok, that car is backing out, I should wait, since I'm parked at the moment.

 

[CdwJava]

What about parked vehicle on the street trying to move onto the street's traffic? A parked car don't have to yield to a car backing out of the drive way? They can stop and go as they please?

In general, yes. The responsibility belongs to the vehicle entering the roadway:


21804. (a) The driver of any vehicle about to enter or cross a
highway from any public or private property, or from an alley, shall
yield the right-of-way to all traffic, as defined in Section 620,
approaching on the highway close enough to constitute an immediate
hazard, and shall continue to yield the right-of-way to that traffic
until he or she can proceed with reasonable safety.

A collision is prima facie evidence that the act was unsafe.

But, this is a moot discussion as the CVC and how it applies to fault is effectively moot since there is no police report. The insurance companies are free to use more subjective means.

It's impossible for the driver backing out to know if the parked car is going to suddenly move or not, it being parked there tells Car #1, that Car #2 is not moving, then it's safe for Car #1 to back out. Whereas in that Car #2 driver's point of view, him/her seeing Car #1 backing out should tell him/her, oh ok, that car is backing out, I should wait, since I'm parked at the moment.

I am NOT saying your actions were unreasonable, I am only telling you how it would likely have been reported in a police report pursuant to SWITRS (our collision reporting system in CA). Your insurer may decide that you were not to blame at all ... on the other hand, the other company may decide you are 100% at fault. In the end, I suspect they will decide you each share fault.

Good luck.

- Carl

 

[goshtic]

Thanks, I'll report back again when the results are in.

 

[ecmst12]

I'll explain it another way. Even in the case that both cars started moving at the exact same moment, and hit each other at the exact same moment, the car in the driveway would still technically be at fault, because that car has the GREATER DUTY to yield to traffic in the street. A driver backing up also has the greater duty to yield to cars moving forward.

Mostly, this is just an accident, they happen, that's why we have insurance. You probably couldn't have done anything different, and neither could the other guy. If it gets determined to be your fault, which it probably will, don't take it personally, it doesn't mean you're a bad driver

 

[TomD1974]

IMO, intent is irrelevant because it can't be proved (unless someone wants to admit to trying to cause the accident, which is a bit unlikely.

To the OP, yes, you can park your car in the street next to the "curve" (aka curb) by a rich person's house, and wait for them to hit you. And it will be their fault. Knock yourself out!

 

[goshtic]

Hi guys, here's the update. Carl (CdwJava) is correct about the out come. In the end, the insurrance company decided both party was at fault and no point was given to either party.

 

[moburkes]

Hi guys, here's the update. Carl (CdwJava) is correct about the out come. In the end, the insurrance company decided both party was at fault and no point was given to either party.

Insurance companies don't give points. The adjuster determines the fault, and pays out (or not) accordingly. At renewal, the at fault parties are surcharged on their respective policies (unless your state requires 51% or more fault in order to surcharge, and you weren't determined to be 51% or more at fault).

 

[CdwJava]

However, one can appeal the points through our DMV. If the DMV decided that they equally shared fault, they might decide not to issue a point to the moving driver ... though I would think that very odd, I suppose it can happen.

Typically the state assigns one party fault, and the insurance companies can divvy it up as they will.

- Carl