Q. When determining fault for an accident does it matter who hit who first?
A. No. In determining fault, it makes no difference who struck who.
Q. In a motorcycle accident does it matter if the motorcycle struck the car or which vehicle struck first?
A. In motorcycle accidents, the motorcycle almost always strikes the car first and we usually prove it was 100% the fault of the driver of the car.
When determining liability, inexperienced insurance claim representatives may look at whether the motorcycle struck the car or the car struck the motorcycle. Sometimes, an inexperienced insurance claim representative will blame our client saying the motorcycle was the “striking vehicle”.
The driver of the car usually thinks it was the fault of the motorcycle because “he struck me” or “he hit me”. This also happens in car accidents between two cars where who hit who also has nothing to do with who caused the accident.
Who Hit Who First? Did Your Motorcycle Strike the Car or Were you Struck By the Car?
Which vehicle is the striking vehicle is irrelevant to determine who caused the accident. There are many examples that can illustrate why it should never be considered but these examples will make the reason obvious.
Four Examples Where Who Hit Who or Who Hit Who First Doesn’t Matter
The Motorcycle Strikes a Car Which Runs a Red Light
This is an obvious example where “who hit who” or “who hit who first” doesn’t matter.
Assume that a motorcycle is proceeding straight through an intersection with a green light and hits a car that runs a red light. Since the motorcycle strikes the car, the motorcycle is the striking vehicle but the motorcyclist is not at fault because:
- The motorcycle had the right of way with a green light
- Motorcycles can’t stop as fast as cars so it is not likely the motorcyclist could have seen the car in time to avoid the accident, and
- The driver violated the law when the car ran through a red light.
Why does the motorcycle usually strike the car in an intersection accident?
It is far more likely that the motorcycle will strike the car than the car will strike the motorcycle. This is because as the car passes through the red light, it presents a target between 14.3-18 feet wide depending upon the vehicle. To the car, the motorcycle presents a target of only approximately 6.3-8.3 feet wide.
Additionally, even if the motorcyclist sees a car running a red light, it’s probably too late for the motorcyclist to stop the motorcycle because motorcycles are more difficult to stop than cars.
A new motorcycle rider after taking a motorcycle training class will require approximately 60 feet to stop at 30 mph while the driver of a car will be able to stop in 30 feet at 30 mph.
The Motorcycle Struck a Car Exiting a Parking Lot
In this case, the front of our client’s motorcycle in the image below struck a car broadside on the passenger side. The car was 100% responsible for causing the accident because the car exited a store parking lot and violated the motorcyclist’s right-of-way when the driver crossed 2 lanes of traffic because he was waved on by the driver of another car. Neither driver saw the motorcyclist who had the right-of-way.
Note: If we knew the identity of the nice driver who waved on the car exiting the parking lot, we would have sued that driver also. We couldn’t make an uninsured claim against that driver because there was no contact between that vehicle and any other vehicle. It’s a similar situation to a cut-off and run accident which can’t be made without contact between vehicles if the identity of the driver and car is unknown.
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The law does not permit the operator of a motor vehicle to take traffic instructions from another motor vehicle operator and the law also doesn’t permit the operator to violate the right-of-way of another motor vehicle just because another driver waved them on.
GEICO originally offered nothing for the damage to the motorcycle and denied the claim for injuries, claiming that it was 100% the fault of the motorcyclist. After a deposition where we questioned the driver, GEICO admitted their car was 100% at fault and we got our client 100% of the money for his motorcycle (we don’t even charge a legal fee for collect damage).
The Motorcycle Struck the Rear of the Car Turning Left
In another case, our client’s motorcycle struck the left side of the rear bumper of a car making a left turn coming out of a side street. Again, the insurance company claimed the accident was our client’s fault. The New York State Supreme Court ruled that it was 100% the fault of the driver of the car.
The insurance claims representative might have believed this was the fault of the motorcyclist because of two reasons. One is that the motorcycle was the striking vehicle and the other is that the car was hit in the side of the rear bumper.
Insurance claims representatives use cookie-cutter methodologies, including who hit who first, to determine who was at fault but this doesn’t provide a true picture of what really happened.
In addition to a cookie-cutter answer that the motorcycle is the striking vehicle, insurance claim representatives also look at the location of impact on the car. Here, the claims representative thought it was the fault of the motorcycle because the car was hit at the rear bumper.
This would indicate to the claims representative that the motorcyclist failed to see what there was to be seen which is also a violation of New York State Vehicle and Traffic Law. The fallacy of this thinking is that it fails to look at the timing, position, speed of the vehicles. Our accident reconstruction expert proved that there was insufficient time for the motorcycle to stop.
The Motorcycle Struck the Car Making a Left Turn
In another example, we will assume that the motorcycle is going straight through the intersection when a car coming in the opposite direction is making a left turn and is struck on the side by the motorcycle. Thus, the motorcycle hit the car and is the striking vehicle. Does this make it the fault of the motorcyclist? The answer is no. Again, it doesn’t matter who hit who first.
Again, this cookie-cutter approach ignores several factors. If the motorcycle was not speeding, this indicates that the car began its turn without seeing the motorcycle. In that situation, the car is 100% at fault.
We have had many cases with left-turn accidents in which courts have awarded Summary Judgment which means that the court ruled that the car was 100% at fault and the question of fault never even got to be considered by a jury. When we win Summary Judgment, our client also gets 9% interest.
When Does It Matter Which Vehicle Struck First or Who Hit Who First?
In a hit in the rear/rear-end collision where there were 3 or more vehicles, who hit who first or which vehicle struck first does make a difference.
In motorcycle accidents, the motorcycle is often the “striking” vehicle because the driver of the car or truck did not see the motorcycle.
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Motorcycle Attorney Phil Franckel talks about how motorcycle accidents are different
Philip L. Franckel, Esq. is the author of all articles and content on this website, one of the Personal Injury Dream Team™ Founding Partners at 1-800-HURT-911® New York, well-known for representing motorcyclists. He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and is a former Member of the Board of Directors of the New York State Trial Lawyers Association. Mr. Franckel created the motorcycle awareness campaign BE AWARE MOTORCYCLES ARE EVERYWHERE®.
Founding Partner Rob Plevy, Esq.
Robert Plevy, Esq. is a motorcycle accident lawyer and one of the Personal Injury Dream Team™ Founding Partners at 1-800-HURT-911® New York. Robert began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.