To sue or not to sue
 

Opening statement. I am not a fan of our overly litigious society. However.

Mrs. bivenator was riding her bike with bivenator 3.0 on the back. It was approx 8:45, late dusk with darkness taking over. She is riding on the sidewalk in the neighborhood as is allowed. She approaches an area of the sidewalk that is being repaired, dark orange safety net surrounds the torn up patch. This patch is easily seen as there are lights along the path and the net was visible.

Mrs bivenator then travels another 20 yards and crosses a bridge that spans a water drainage area. She is still on the sidewalk that runs adjacent to a two lane residential street. This area is very dark because there are no lights because of the drainage ditch.

She doesn't see the second construction area until it is too late. She takes evasive action and puts her leg out to brace her fall. The ankle and knee buckle under and much pain ensues. Fortunately bivenator 3.0 came out unscratched despite the harness straps in the child seat coming loose from its attachments.

Xrays show no fractures but the swelling, pain and an inability to put weight on the leg continue. We are waiting a week to give it a chance to heal if it is a simple sprain but I expect we are going to find some structural damage to a ligament or meniscus in the knee. This lady has a high pain threshold and she is really uncomfortable.

I put in a call to the HOA to get them to contact the construction company to put up an adequate warnings so that it would prevent another accident. I was told during the course of the call that the barriers in place were up to code according to the city standards.


A barrier in a lit area would probably have a different code than an unlit area. Is this considered an unlit area? It sure was dark and the net was nearly invisible even when standing within a few feet.

Mrs bivenator was wearing a headband with a small led light and was not going fast as she had a kid on the back and was riding a single speed coaster brake bike.

Pictures below show the area that night and the next morning. The netting is hard to pick up even in the daylight.










http://forums.pelicanparts.com/uploa...1470341387.jpg
http://forums.pelicanparts.com/uploa...1470341451.jpg

She was riding a bike at night with poor lighting. She was driving too fast for the current conditions. It is that simple. Consider it a lesson learned. Don't ride at night if you don't have a good headlight.

Any gravel on the road?

I would not sue for that accident.

Sorry for your troubles. Get well soon, Mrs. Bivenator!

IMO you're on your own and it's an unfortunate accident, caused by your wife riding a bicycle in the dark, with no headlight, on the sidewalk.

She had a light and the construction site was inadequately marked. If it were someone walking on the sidewalk without a light, they would also very likely be injured.

If someone else gets injured after they have been notified there was a problem, the HOA and the construction company are in for a world of hurt. I would let the HOA know that. It is one thing to have a hazard and be unaware of it, something entirely different when you are aware of the hazard and do nothing.

A couple of questions. Do you mean that the second zone was also barricaded with orange mesh but that she didn't see it in the dark? Did she run into the construction site or fall without hitting the barricade or construction? The photos are of the actual site of the accident and taken from her perspective?

Let me start by saying, it does suck that your wife got hurt, good thing nothing is broken and it's a good thing Jr is alright as well. I sincerely mean that as I wouldn't want it to happen to Mrs Saucy and Sauce 1.0 or 2.0.

That being said. its called an:

AC-CI-DENT.

1: an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury.

2: an event that happens by chance or that is without apparent or deliberate cause

Unfortunately our over litigious society has seemingly forgotten that these things happen and there are a good amount of times that the individual to which they occur are at fault for their own demise. This was not an 1800s cotton gin a child was playing in...

Your wife should have been on the street, especially after the first construction site. Just my MAHO (my a-hole humble opinion ) ;)

An LED light for the handle bars cost what $5?

I would not sue.

At best there appears to be equal liability here.

This could just as easily have been some other obstruction, a piece of debris that found its way onto the walk, fallen tree branch for example, who would you sue then?

How were the tires on the bike?

They were good tires, but not great tires.

MRM, she did not see the second zone and yes it too was barricaded with orange mesh. That is the spot in the picture. She did not hit the orange mesh barrier or enter the construction. When I arrived to retrieve her the bike was resting against the barrier.

The scenario was basically a Burmese tiger trap in the middle of the sidewalk.

I was doubtful when she called to say that she could not see the barrier. When I got there I was suprised at how well disguised the orange mesh was at night. She did have a light attached to her head like a "minion" I have worn the same light and any reflective material is very visible.

We asked the HOA head of the sidewalk project to meet me tonight while the barriers are still up so that he could take a look. He hasn't returned our call yet.

People that stopped to help her said that there were cones earlier in the week but they were not there the last two.

My vote is not to sue, but I can see where you'd like to make sure the construction company got a clear message. Do they still make barriers with the flashing light on top?

Yep, something like https://www.amazon.com/Cortina-03-10-3way6v-Polycarbonate-Incandescent-Barricade/dp/B00AZ9Q3B6/ref=pd_bxgy_60_img_2?ie=UTF8&psc=1&refRID=R38WPS7M 0W0HY3ZMRB6C on top of https://www.amazon.com/Cortina-97-01-002-Polypropylene-Folding-Barricade/dp/B00AZ9PCK4/ref=pd_bxgy_328_img_2?ie=UTF8&psc=1&refRID=0X14YNZ S6FQHH2HH25C6 would do it

The pictures above are from her view, this is the same view without my headlights.
Anything reflective would have been easily seen.
http://forums.pelicanparts.com/uploa...1470345170.jpg

I was raised that we are responsible for our own actions and decisions.
IOW = PERSONAL RESPONSIBILITY.


If I decided to ride a bike on the sidewalk (which is for pedestrians and not bikes BTW, regardless of if it's allowed in your hood) and I decided to do it in the near dark without adequate lighting to illuminate my path and help me identify potential hazards, and I hit a hazard and fell, I would call myself names like dumazz, stupid-head, poop for brains, etc.

But the one thing I WOULD NOT DO is look for someone ELSE to blame it on.
If the thought even crossed my mind i would get sick to my stomach with shame.

It's no one's responsibility to make he world fool-proof.


BTW based on the info in your post, I do not believe your opening statement.
You're fishing for rationalization to do the wrong thing.
Ain't gonna get it from me.
But I believe deep down you know what is right and will do the right thing.

Hope she gets well quickly.

Every day of the week.
Big:
http://www.ksibarricades.com/images/...icadetype3.jpg

And small:
http://d35gqh05wwjv5k.cloudfront.net...s-68893-lg.jpg
http://www.seton.com/vertical-panel-barricades-es1010.html

How could suing about this even enter into your head?

I'm sorry, I missed the part about her having a headlamp.

I'm still in the "unfortunate accident" camp.

Get well soon!

Tough crowd, thanks for the well wishes to mrs bivenator.

It occurred to me to sue because a company caused an unsafe condition that injured my spouse.

I suppose the question is whether codes were properly followed will dictate whether a lawsuit is viable.. i.e. is reflective tape or flashers required

If it were a tree limb that were in the road then it would be an act of god, the hole left in the sidewalk is not.

Kinda like most everything else.

I'm a bit confused. You said she took evasive action and stuck her leg out to break her fall. I'm curious, given that you said she never impacted or entered the construction area, onto or into what did she fall? If, as you say, she wasn't riding too fast, it would seem, based on your photos, that an alert rider would've simply steered around the hazard or stopped short.