The "I did not see the cyclist" Defense and dealing with it at Trial
Injuries to cyclist happen all too often as a result of driver inattention. See Common Causes of Bike Accidents. Typically, the negligent driver will immediately claim they did not see the cyclist and claim that as their defense, basically shifting blame to a cyclist for not being seen by the driver, despite adequate lighting, visible clothing, and no violation of the law or negligence by the biker.
To be clear, negligence law in Missouri and just about every state in the US, requires unintentional breach of a duty, not intentional breach of a duty. Intentional breach of a duty, i.e. intentionally hitting a cyclist, is criminal assault and battery, and on the civil side is an intentional tort, such as assault, not negligence. Negligence is inadvertently or recklessly causing a collision. Examples of negligence: failing to hit your brakes in time and hitting the rear of another car, not seeing another cyclist or motorist and turning into their path of travel and casuing a collision, inadvertently cutting a cyclist off, inadvertently running a red light because you are looking at your cell phone, etc ... Therefore, the "I did not see them" defense and therefore "I did not do it on purpose" defense is not a defense at all.
I know this seems to be an obvious distinction, but in order to sway juries, defense lawyers try to mix up concepts of negligence and intentional acts as part of their defense, you cannot let that happen. Attempts to improperly influence the jury with the argument that because the bike injury or other accident was not caused by an intentional action, then the victim should not be compensated fully, because by fully compensating the victim you are somehow punishing the defendant who did not do anything on purpose.
Why is the negligence versus intentional act distinction important in bike injury and other personal injury cases?
This is a very important mindset you have to be prepared to deal with when going into a jury trial. During "voir dire", commonly know as jury selection, the victim's lawyer must discuss with the jury that the burden on the Plaintiff (victim) is to show negligence, not intentional conduct; but even more importantly, through jury selection and throughout the trial, the injury victim's lawyer must emphasize with the jury that the juries' job is to award money or compensate the Plaintiff for the harms and losses suffered, that is it! It is improper for them to consider impact on the defendant, their insurance company, or other factors, because once the jury determines the defendant was negligent then the only thing to consider is what amount of money will make up for the victim's harms and losses. The award of money damages is solely about past, present, and future harms and losses suffered by the victim. See Calculation of Damages in Injury Claims
See Also:
Bicycling.com article: The "Ignorance is Bliss" Defense
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A few years back I took a St Louis bike accident claim through a jury trial in St Louis County. The case arose from a "right hook" by the driver of the car.
Both the drunk driver and the bicyclist were traveling west on the south service road. The drunk and negligent driver of the truck rear-ended the back tire of the bicycle, sending the cyclist over his handlebars and landing 35 feet from the initial impact site. The at fault and negligent driver stated that he never saw the Missouri cyclist prior to colliding with him. The injured cyclist was taken to St. Joseph’s Hospital in critical condition and the drunk driver, who was suspected of intoxication, was taken to jail.
In May 2008 my client was struck by a Hummer H2 while legally traveling on his bicycle in a designated bike lane in the Soulard area of St Louis MO. He proceeded through an intersection that had no stop sign for his direction of travel, however, the cross traffic had a stop sign and the other driver went through the stop sign and violated my client cyclist's right of way and causing a collision which resulted in 