Expert: Richard Hixenbaugh - 10/11/2009

Question
QUESTION: Hi, my son was backing straight out of a stall (in a shopping center)with the intent of backing into the stall behind him, because it didn't have a shopping kart in it. When he was completely out of the stall he was hit by a VW Bug in the left rear bumper and scraped along the back of the bumper. The VW's damage started at her front, left fender and went to her driver's side door. My son told me that he looked both ways and did not see anyone in the lane and he was looking over his right shoulder as he was backing up. My thought is that the other driver is at fault because my son ensured thae he had a clear right of way before backing up and if he was already there when she entered the lane she should have slowed down or stopped to prevent the accident from ever happening. What are your thoughts? My insurance company will be speaking to my son on Monday and I want to make sure we present the facts well.

Thank you.

ANSWER: Hi Betty,

Parking lot accidents are some of the most difficult to determine liability. The likely result be be one of the following:

1) Liability will 100% your sons due to the fact that he was backing out of a parking space and has the greatest duty to be sure he has a clear path to do so. or

2) liability will be 50/50 placing half of the blame on each driver.

Your son will just have to state his version of events. The other driver will do the same and the claim adjuster will make the best decision they can.

I hope this helps
Richard Hixenbaugh

---------- FOLLOW-UP ----------

QUESTION: Thank you for your reply to my question. I have a follow up question... Where is it written that the person backing up is always at fault and that the other person has the right of way? Everyone says this, but I can not find it written anywhere! Only (on roads and highways) that before backing up you should make sure you have a clear and unobstructed right of way before backing up. So, (even in a parking lot) if a driver does this and someone then comes along after the person has backed up, shouldn't that person have a responsibility to be safe and not continue driving into the car that is backing up?

This is really perplexing me as I drive around parking lots (now that my son has had this accident) I notice that everyone yeilds to everyone else to be safe and curtious. I would never dream of driving past a person who has even started to inch out of a parking spot.

Thank you for your time.

Answer
Hi Betty,

I don't know specifically where it is written but it is written somewhere. This is a legal principal that is very very old and is either codified in your states laws and/or is the basis of a legal decision handed down in a court case that established it as case law.

The person backing up has the greater duty because they are entering a busily traveled area. The vehicle in the lane of traffic has the right of way because they are traveling in a standard traveling lane.

It is not that your son is absolutely at fault or that the other driver is absolutely without fault. It is that everyone feels they are correct and will tell their story in a way that makes them sound like they were in the right and that the other person was in the wrong. A claims adjuster listens to the statements of each side and makes the best possible decision they can in the absense of independent witnesses.

In my previous answer, I gave you the most likely results, however, it may turn out differently depending on the statements of the 2 driver, the level of experience of the adjuster, and the claim training they have received.

I hope this helps
Richard Hixenbaugh