I recently received an email from a person who was involved in a serious bicycle accident. His frame snapped in half and he suffered some severe injuries – he needed stitches in his forehead and an elbow and is waiting to see a specialist about a knee injury. He is walking with one or two canes as he awaits his appointment to see an orthopedist.
Because the frame snapped at a weld, the man blamed the manufacturer, believing that the frame’s limited thickness led to the failure of the frame.
I told the injured man that in a product liability lawsuit, WE would have the burden of PROVING that the bike accident was caused by a defect in the bicycle. That would involve bringing in experts, and it is often expensive to retain one or more. Because of the cost, it only makes sense to pursue cases where there is a reasonable prospect of a substantial jury verdict.
I continued, to quote from my email:
Accordingly, I must be very careful to only accept those cases where my potential client has suffered severe, permanently disabling injuries. As a practical matter, this means I must sadly decline those cases where the cyclist has suffered less severe injuries that are likely to completely resolve in a matter of weeks or months.
Very often, we need to wait to see how a client’s injuries are going to resolve before making any final decision to accept or decline a case. It is always our hope that an injured person will quickly recover, as I would much rather have someone have a good, healthy body than a good lawsuit.
Based upon your injuries as described in your email, it is simply too early to tell if your injuries will be severe enough to justify the considerable costs of a product liability action.
Although I certainly don’t mean to minimize the injuries you suffered, it sounds like they may successfully resolve without permanent limitations – at least that is my sincere hope for you.
But after more than 25 years representing the injured, I have learned that none of us has a crystal ball to accurately predict the future so I think it is important that we take the steps necessary to preserve important evidence in your case in the event that it DOES turn out that your injuries are severe enough to warrant pursing a product liability lawsuit.
To that end, I offer the following recommendations (and this is for ALL INJURED BICYCLISTS):
- PRESERVE THE BIKE IN ITS CURRENT CONDITION: Under no circumstances should you repair, modify or otherwise alter the bike. Failure to preserve the bike and its components exactly as they were at the time of your accident could be fatal to your ability to pursue any sort of claim.
- DO NOT SEND THE BIKE BACK TO THE MANUFACTURER: Sad to say, the manufacturer is generally very eager to get a defective bike back into its control and out of your hands. Very often they do this under the guise of “warranty inspection,” but regardless of what they call it, if you have any thought of pursuing a product liability lawsuit, do NOT give up possession of the bike. If the manufacturer wants to inspect the bike, let them come to your house to do it and make sure that any inspection involves absolutely no alteration of the bike.
- TAKE YOUR OWN PHOTOS OF THE BIKE: Like they say, a picture is worth a thousand words, so take LOTS of good, digital photos of the bike and its components. If necessary, borrow a decent digital camera but make sure you have good, focused photos (both close-up and farther away) of the bike and any defective components.
- TAKE PHOTOS OF THE SCENE OF YOUR BIKE CRASH: Again, these photos can be very useful so make sure to take lots of good photos (both close-ups and farther away) of the accident scene. If there is physical evidence at the scene (i.e., a skid mark, gouges in the pavement, broken reflectors, etc.), get good photos. If possible to do so safely, include a ruler or yardstick showing the actual dimensions of any physical evidence.
- TAKE PHOTOS OF YOUR INJURIES: It is important to document as comprehensively as possible,ALLof your injuries. So take photos ofALLinjuries – bruises, scrapes, road rash, stitches, casts, etc. Also, take continuing photos as your injuries progress. And record the date that all photos were taken so you will be capable of accurately describing the date each photo was taken.
- MAKE SURE TO KEEP ALL PAPERWORK: Get together a folder of all paperwork regarding your bike: the sales invoice, and any correspondence with the manufacturer or their insurance carrier.
- MAKE SURE TO KEEP A LOG/DIARY OF ALL MEDICAL TREATMENT: Keep a folder/notebook where you can easily track all medical treatment.
I hope this background information and recommendations assist you while you wait to see if your injuries successfully resolve or not. My own rule of thumb is that I want to make sure someone is symptom-free for at least 3-4 months before making a decision as to how to proceed.
If you are still suffering symptoms after 3-4 months, you should have a consultation with an experienced bicycle accident lawyer. I offer such consultations for free and do them in person, over the phone, via Skype or by email depending on what is most convenient to the client.
If all is well for 3-4 months, then I feel comfortable saying to go ahead and see if things can be worked out amicably with the manufacturer on your own. Sometimes that involves a new bike, payment of the medical bills and lost wages, and occasionally some compensation for your pain and suffering. The manufacturer will usually require you to sign a Release, which is a document that basically says you are giving up any and all claims you may have against the manufacturer in exchange for the money they are paying you. NEVER sign a Release unless you are absolutely, positively sure that you are satisfied with the settlement offer because once you sign that Release, you are done FOREVER. If in doubt, do NOT sign ….
That was my counsel to the bicyclist. I hope you never suffer an injury while riding, but if you do, keep my advice in mind!
Thanks for reading and remember to ride safely!
James B. Reed
Ziff Law Firm, LLP
Toll-Free: 800-ZIFFLAW (943-3529)