QuestionHi. I was legally parked on the right side of a one way street in New York. The street has one lane and cars parked on both sides. My driver side rear door was open wide and I was checking something in my back seat, so I was standing right in the opening of the door with about my torso inside the car, my legs sorta sticking out and on the ground. I was facing inside so my back was pointing out to the street. I was there for a few mins when all of a sudden I hear a loud bang! A car had struck my door while passing. Good thing it didn't get me. When I looked at the damage the edge/tip of my door was bent and the door could close but wouldn't stay closed while the other car was damaged from the passenger side mirror(completely off) and a dent/scrape right below the window line starting after the mirror and all the way to the end of the rear door. When the police came they said that I was 100% at fault and that is what it says on the police report. Is this correct? Thank you.
Answer Hello Jack,
The police are not really responsible for determining liability. To clarify, if an officer finds that an offender has broken a traffic statute in the course of causing a collision they can and should charge that driver with said statute. If there is a statute in NY that prohibits opening a car door while traffic is passing, then you could likely be charged with that.
As well, in most states if an officer concludes that a driver or drivers in some way contributed to an accident, this can be noted on the crash report, though normally there is no provision for percentages.
It is the responsibility of the insurance company(s) involved to determine liability when making claim payment decisions.
As for the police report, yes an insurance company can certainly refer to it when assessing an accident, but they should never use it alone as a source for determining liability. For example, either or both insurance companies should take statements from both drivers and any witnesses. And they need to inspect and evaluate the damages. In other words, a liability decision should be based on a variety of factors - not just on the opinion of the police officer - who, by the way, was not a witness.
From an insurance standpoint, I would certainly consider this: If you have your door open (even in presumable violation of a traffic law), does not the other driver have a duty to avoid you? Especially if you are leaning into your car! Doesn't that driver have a duty to pay attention? If it was a bright sunny day, there were no obstructions to the other driver's view, then why on earth would it be OK for him to just run into you?
NY is a comparative negligence state. Simply stated, what that means is that each driver is assessed for a percentage of responsibility or negligence. Even if you were negligent in allowing your door to infringe on a moving lane of traffic, certainly the other driver has an obligation to watch where he's going! And, from your description, you had been there for at least a minute or so. (Probably not a wise choice, though.)
Obviously I don't have all of the details. However, I cannot see that you are "100%" responsible. Nor do I believe the officer has the authority or the responsibility to make that decision. His job is to enforce traffic laws. Regardless, that is the reality. When presenting your claim, make certain you emphasize that you were in clear view, that you did not open the door into the car, that it was a bright sunny day and there were no obstructions (if that is actually the case). Under those circumstances certainly it is unreasonable for you to be completely at fault.
Ultimately both insurance companies will need to determine a percentage of liability. Once they establish that - whether valid or not - you are stuck with it. You may need to rely solely on your Collision coverage.
The only higher authority is a jury. Since there were no injuries, that would not be at all likely here.
Hope this helps.
Jane Pytel
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