Motorcycle Law: Documenting Accident Scene

November 26, 2010
Oliver Shami, Esq.
Oliver Shami, Esq.
Legal Contributor|Articles|Articles RSS

If there is one thing Oliver loves more than the law, it’s motorcycles. He has raced everything from motocross, sportbikes, GP, and supermoto, earning an AMA 250GP pro license in 2001. He has authored a performance riding program titled “TrackStar” and regularly instructs performance riding on racetracks. His family thinks he’s insane—with good reason.

If you are in a motorcycle accident in Colombia you will find yourself having to prove your innocence  the legal system being based on Napoleonic Law: guilty until you prove yourself innocent.
The immediate moments following an accident are refered to as the ‘golden hour’ in law, where crucial pieces of evidence can be documented in their original state.

The unthinkable just happened. You’ve just gone down because an inattentive driver slammed into you while changing lanes. You’re stunned and still so full of adrenaline that you can’t feel any pain. Your shoulder’s hanging unusually low, and you know you’ve probably snapped your collarbone. You can barely stand on your left leg. You’ll find out a few hours later at the emergency room that you fractured your fibula, your collar bone and suffered a concussion.

Back at the scene of the collision you inspect your helmet and see scratches down its side. You notice the SUV that side-swiped you on the shoulder of the freeway; its driver speaking with a police officer. Shortly thereafter, an ambulance and the fire department appear on scene. You’re asked some questions from EMT’s about what happened and how you’re feeling. They check you out, secure you onto a gurney and load you inside the ambulance.

While in the ambulance, a police officer pokes his head in and asks you a few questions about what happened. Your head is starting to throb and you feel nauseated. You’re in a fog but you do your best to answer. The officer leaves and you’re transported to the hospital. You spend two days there to have your collarbone plated and lower leg casted. You’re also informed that you will be out of work for at least six weeks.

Differences between what was documented and what actually happened can be drastic. Make sure there is visual documentation to support your own case.

Fast forward a few weeks. You’re on the phone with the SUV driver’s insurance adjuster trying to get your ride repaired and your medical bills paid. The unthinkable has just happened again. You’re informed by the adjuster that the police report found you at fault and that there was no evidence of a collision between you and the SUV. After obtaining and reviewing a copy of the police report, you notice that no witnesses were listed (despite seeing several people stopped at the scene) and that the driver of the SUV denied making any contact with you. Even worse, the statements in the report attributed to you are inaccurate. It’s a nightmare. How could this happen?

Unfortunately, scenarios similar to this happen much too often. Although many police officers are diligent in their investigations, critical pieces of evidence such as witnesses, paint transfers, skid marks or roadway debris are often left out of police reports. Some police officers are also biased against motorcycle riders. The unfortunate result is police reports that often place some or all of the blame on the motorcyclist, and insurance companies who rely heavily on police reports to determine liability. So what could you have done in this situation to prevent this nightmare?

In emergency medicine, the “golden hour” refers to a time period lasting from a few minutes to several hours following injury during which there is the highest likelihood that prompt medical treatment will minimize the injury. There is also a “golden hour” in law. It is the same time period as above where the prompt gathering and preserving of evidence will minimize legal harm to you.

rider in ambulance...
If you are seriously injured, make sure to quickly arrange for someone else to take photos of the accident scene.

Let’s “rewind” to the scene of the collision. During the “golden hour” do not rely on police officers to document the scene of an accident for you. Their work is a start, but all too often insufficient to support your claim. In almost 20 years of practicing law, I have seen critical witnesses and other key pieces of evidence left out of police reports way too often. This missing evidence often makes the difference between winning or losing a case. If you are physically capable, take photos! If you cannot, have someone else take photos, such as a companion rider. If you were alone, call a friend, family or co-worker to come to the scene to take photos and assist you. If no one comes out to help, ask a friendly witness to take photos with your phone.
Photo document the entire scene of the collision. Take photos of the general area, the specific location (mile marker or landmarks), the vehicles involved and their locations (including your bike), damage to the vehicles, paint transfers, license plates of all involved and stopped vehicles, skid marks, roadway debris from any source (gravel, etc.) and any unusual conditions. “Unusual conditions” are anything that raises your eyebrow. People often perceive things that are amiss only unconsciously. The only signal we receive consciously is a gut feeling that something is off. Don’t ignore that feeling. At worst, you will have wasted a photo. On the other hand, you may have preserved a key piece of evidence.

Vehicles with ABS often do not leave actual skid marks but may leave “ghost-skids” that rapidly disappear over time. These can be critical pieces of evidence that will disappear quickly if undocumented. Even if you can’t measure skid marks, accurate photos of skid marks or “ghost skids” will allow someone to return to measure them or enable experts to reconstruct their dimensions even if police failed to take adequate measurements.

Regarding witnesses, get their names, addresses and phone numbers. Ask around. Don’t be shy. Again, do not rely on police to obtain all witnesses to the collision. Again, if you are incapable, ask for assistance from a fellow-rider or anyone who comes to the scene. Police often receive calls to other accidents and must leave the scene before

She cleans up nice  I promise.
Small details like scratches, paint transfers, dents and even your own clothing can serve as valuable evidence later on.

conducting a thorough investigation. They often miss critical evidence and witnesses. Once the police cuts everyone loose from the scene, key witnesses may be gone forever. That missing key witness may have witnessed the contact between the SUV and you.

To the best of your ability, remain calm with the police officer and the offending driver. No matter how valid your reasons for being angry at the scene (and rightfully so), it never looks good to have a police officer testify at trial that you were uncooperative or belligerent at the scene. Jurors tend to assume you are hiding something. Assume that everything you say and do at the scene will be evaluated by a jury a year or two later. You want to appear reasonable at all times.

Although your clothes and helmet may be ruined, save them! They may contain evidence of paint transfers and can make compelling trial exhibits. Your bashed in helmet will help a jury understand the mechanism of your concussion and the reasons for your residual cognitive problems.

Although your diligence in documenting the scene of the collision may not be enough to change an insurance adjuster’s mind, it may very well make the difference between winning or losing your case in court if you are forced into filing a lawsuit because you were not treated fairly by the insurance company. Trust me, your lawyer will appreciate the photos and witness information. And your case will be helped that much more because of your clear thinking during that “golden hour.”