What to do when the passenger is at fault in an accident
Different situations can happen on the roads, in which the culprit is not always the person behind the wheel. Recently, there have been more and more cases where the accident occurred due to some improper actions of the passengers. The incident may be related to both public transport and passenger cars.
What to do if the passenger is the cause of the accident?
Most such situations are resolved in court. But not all cases involve victims going to court, because they assume that with little damage, the time, financial and other costs may not be justified.
When there are clear causes in an accident that happened on the road due to the fault of some passenger, the car owner can save his or her money on auto repairs. The money can be recovered from the at-fault citizen, especially when the insurance company is unwilling to carry out the reimbursement.
Understanding the liability of all parties in an accident helps to know the principle of how such cases are handled in the courts. The basis of the proceedings is the cause of the damage to the car.
Important: An insured event is a situation where the damage was caused by a vehicle, and the car has evidence of driving damage.
When the driver needs to prove that in a particular accident was not his fault, but the passenger’s, it is necessary to urgently establish the identity of the citizen. In some situations, such a person has to be detained until the arrival of law enforcement officers. Otherwise, the damage will not be covered at the expense of the guilty passenger.
Will MTPL be paid if the passenger is at fault?
Cars that don’t move are unlikely to cause mechanical damage without outside help to others. In such a case, most insurance companies can legally refuse to cover any damage. They recognize this situation as an uninsured event.
Becoming a victim of extraneous damage to a car can occur in a variety of places:
- standing on the curb;
- while parked in a paid parking lot;
- in a free parking lot;
- near a crosswalk;
- While performing a maneuver.
Popular situations are when a passenger unintentionally opens the front or back door of a car and then some sort of accident occurs. The action may be negligent or inattentive.
In judicial practice, the situation is not defined by the current law. Such gaps in the law cause certain difficulties in the courts. Judges have to render verdicts based on the specific circumstances of the case. This applies to accidents where the door was opened by a passenger.
In fact, events can occur when a passenger opened the door of a moving car. Such events are construed against such a citizen. The law requires that before taking certain actions, one must make sure that the consequences do not interfere with surrounding traffic.
Also, an accident may occur when a car has been open for some time and a passing vehicle has hit it and damaged it. In this state of affairs, the driver of the moving car must necessarily be the culprit. Under current law, he is required to control a safe distance to ensure free passage. The passenger will turn out to be innocent, and one can hardly count on MTPL insurance.
Difficulties in determining fault
The main issue of events is determining the at-fault party, who should end up covering the cost of recovery. Both the driver and the passenger can be assigned. One situation is when a car accident has occurred and the driver was not in the cabin, only the passengers.
In these circumstances, the people in the cabin will not be at fault, even when someone accidentally touches the handbrake or takes the car off the speed limit. The passenger would be exonerated and the driver would be punished because the law requires that the safety of all occupants be respected. To prove the innocence of the driver in practice can be very problematic, so in such cases, you need to exercise maximum caution.
When the passenger demolishes or damages the mirror of the standing car in the parking lot when opening the door, it is not necessary to call the GIBDD. This fact falls under the competence of the police. It is necessary to call an officer to draw up a protocol.
In any situation, it is important to clearly identify the guilt of each party. Similar cases with different external factors can be interpreted differently in court. When the accident was clearly committed by the fault of the passenger, it is necessary to detain him until the arrival of the traffic police.
There was an accident because of the opening of the car door: who is guilty and what to do? The judicial practice
The driver, driving on the roads, should be extremely careful not only in the process of movement, but also at the moments of parking / stopping or embarkation and disembarkation of passengers. At such moments, the risk of harming other road users increases manifold. When the driver opens his door, he most often looks in the mirror and watches the road, but the passengers rarely do so, so the motorist is obliged to watch them as well. If you do not watch the passengers, then there may be an accident, in which you will have to prove your innocence. Below in the article we will try to analyze the most frequent situations of accidents with the opening of the car door, we will tell who is to blame and what to do participants.
Opening the door, there was a blow: is it considered an accident?
To answer this question, we need to recall the basic concepts from the traffic rules. First, let us recall the definition of road traffic:
Road traffic – a set of social relations arising in the process of movement of people and goods with or without vehicles within the roads.
In our case, the open door of the vehicle will be to blame. So, road traffic was carried out with the help of a car. With this it is clear. Let’s move on to the definition of a traffic accident.
A road accident is an event that occurred during the movement of a vehicle on the road and with its participation, which killed or injured people, damaged vehicles, structures, cargo or caused other material damage.
In this situation, it will be important at what point the car door was opened. That is, whether the car was involved in the process of driving on the road.
At the same time, you should take into account the position of the courts, including the Supreme Court of the Russian Federation, that the landing and disembarkation of passengers or the driver himself in the car is part of the process of movement of the vehicle. Therefore, in most cases, if there is damage to property or other road users, it will qualify as an accident.
But the question of who violated what and who is at fault in such an accident remains open.
Who is to blame for a car door-opening accident?
Practice shows that the issue of determining fault in an accident with an open door is not so unambiguous. In 2022, you can find three different ways to distribute and establish fault in such an accident, viz:
- The passenger who opened the car door is at fault,
- the driver in whose car the door was opened is to blame,
- both the driver and the passenger of the car are to blame.
To understand why this happens, let us remember the basic rules and responsibilities of both the driver and the passenger when boarding / disembarking.
- Passengers: are required to embark and disembark only on the side of the curb or sidewalk. In this case, the car must come to a complete stop, so they are not allowed to open the doors of the vehicle while driving (paragraph 5.1 and 5.2 of the Rules of the Road).
- The driver: is obliged to carry out embarkation and disembarkation after the car has completely stopped, and movement can be started only when all doors are closed (gunkt 22.7 of Rules).
The most attentive people probably already think that there is not a word about how to open the doors when the car is already standing. It is mentioned in a separate paragraph, but it cannot be attributed to the duties of either the driver or the passenger, it is general.
The most important for us item of traffic rules: it is forbidden to interfere with open doors for other traffic participants (item 12.7 of the Rules).
So it turns out that the driver must watch out for passengers, and the passengers themselves must act without violating traffic rules. Hence the ambiguous judicial practice concerning the definition of the guilty person in the accident with the car door open.
Situation #1: A passenger opened the door, another car drove into it: who is guilty?
To begin with, let us immediately determine that this is not the case when you can consider the guilt of the driver who drove in.
Prove the innocence will have to only the passenger and the driver of the standing car. As mentioned above, both the passenger and the driver may be found guilty of a violation. In this case, they will be charged with different points of traffic rules.
Some inspectors will bring the passenger under paragraph 1 of article 12.29 of the CAO RF (punishment: warning or 500 rubles). In my opinion, charging under this article is wrong, since there was a traffic accident, and, therefore, interference with the movement of other cars. In this case there is another norm of responsibility, namely, part 1 of article 12.30 of the CAO RF (sanction: fine of 1000 rubles).
Drivers, as a rule, are prosecuted under part 4 or 6 of article 12.19 of the Administrative Code for violation of the rules of stopping or parking, and the point of traffic rules, which they violated, indicate 12.7.
But bringing, for example, a passenger to administrative responsibility does not guarantee that the driver remains innocent. In 2022, the court practice mostly goes the way of laying the blame and responsibility on the driver of the vehicle, even when there is an “admin” on the passenger. The fact is that the driver is not a mere road user, but the owner of a source of increased danger, hence the “increased” responsibility for everything that happens to the car.
If you find yourself in such an accident from a standing car, from which the passenger, opening the door, there is a small chance of a successful outcome for you, if you put a question about the violation of the driver of the moving car the necessary lateral interval (paragraph 9.10 of traffic rules).
There is no definition of lateral interval anywhere. However, there is a methodical calculation in forensic technical expertise. According to such methodological information, when avoiding an obstacle, the required value of the side interval is calculated by the following formula:
Where V1 is the speed of the overtaking car. For example, if V1 is 40 km/h, the safe side interval will be calculated according to the formula: 0.35 + 0.005×40, i.e. will be equal to 0.55 meters or 55 centimeters, which is quite enough to add the distance in width of the standing car plus the open door.
But the main thing here is to try to convince the judge that if the driver of the car ahead had respected the safe interval, he could have avoided the accident even if the door of the standing car was suddenly opened, without foreseeing such action of the driver or passenger. This, unfortunately, will not always be possible, as the question for the judge must be whose violation was more directly causally related to the accident.
Situation #2: Hit by a door in the parking lot
Under this formulation of the situation there are many different situations in which different participants can be found guilty. Here are some examples.
- One car has been parked without a driver for a long time, the other has just arrived. The driver of the second car hits the neighboring car with the door.
- In the second example, the situation is the same, but the passenger of the other car gets damaged by the door.
- Both cars are parked for a long time, and the moment one of them is being boarded, someone hits the open door with it.
- The cars are parked, but no one is going to get into them, but has opened the door to put or take something away.
- The open door of one car doesn’t touch the other car, but someone in the second car also opens theirs and hits someone else’s car.
These are not all the options, you can also think of a strong wind and some passersby. But in general, the practice of assigning blame here depends very much on the specific circumstances and factors in which the accident occurred – who does what in the parking lot with their car.
In all of these situations, the perpetrators will need to be identified depending on their responsibilities and the circumstances of what happened. Both the passenger and the driver can be blamed, there is, alas, no universal formula.
In some cases, it will be considered a traffic accident. For example, when one of the cars just pulled up. In others, it is a stretch to talk about an accident. If it can be proven that those involved in the incident got into the car and were about to leave, and this is an action that collectively relates to road traffic. Otherwise, it is simply a traffic incident that resulted in some kind of damage.
Situation #3: A car drove into a long open door
On the one hand, the situation is simple, but we shouldn’t forget what a great country we live in. Not every driver will be decent and say that, yes, he did not notice the open door and drove into it. In most cases, you will have to prove that the door was open a long time ago, and did not interfere with the movement of other vehicles.
And here, as in all our other articles, let us remind you of the importance of the DVR in the car. If you have decided to get it after such an accident (we hope that you have decided), it can help surveillance cameras, which is better to find immediately after the accident by yourself and ask the owners to keep the record, and then petition the traffic police for its admission to the materials of the case.
If you can not prove it, then with a high probability the driver, at whom the door was opened, will be declared guilty.
- This article describes the basic principles of the law. Meanwhile, in judicial practice everything depends on the specific circumstances.
- In 96% of all cases, there are subtleties that can affect the outcome of the entire case.
- Therefore, we recommend entrusting the case to professionals who will study your case and choose the right strategy to win.
The site TonkostiDTP are professional accident lawyers, with experience in all major types of disputes (MTPL, guilt, administrative penalties).
Situation #4: If a bicyclist hits
When a door is knocked down by another car, the damage can be serious, of course, but usually only to the “iron.”
In the situation with “small-wheeled” road users, things are more complicated. Whether it’s a bicyclist, someone on a scooter, electric scooter or roller skates, or even a pedestrian, they can all suffer significant health damage if they hit an open door. And if it’s a child, all the more so.
In this case, the responsibility for the above violations of the driver or passenger of the car will be stricter, and the punishment will be according to Articles 12.24 of the Administrative Offences Code or 264 of the Criminal Code. In addition, the perpetrators will receive compensation for damage to the health of the cyclist or other road users.
If the driver of the vehicle is found guilty, the insurance company will pay for him mostly by CMTPL, but if only the passenger, he will have to pay everything out of his own pocket. It is important to remember that in case of injury, the victims will be able to claim for moral damage, which can amount to 100, 200 or even 500,000 rubles.
In a situation where it is possible to blame the cyclist for the collision with an open car door, the driver will still pay for the damage. All because he owns a source of increased danger and his guilt is presumed. But he will be able to fix the door at the expense of the cyclist, because the latter is directly to blame for the accident. The exception is a motorcycle, which has driven into the door – in this case, the motorcyclist is also the owner of the IPO, so the damage compensation is made on general grounds.
What to do in an accident with an open door?
In a car door accident, as in any other type of accident, the first thing to do is to comply with the requirements of the Road Traffic Regulations for this case, which are outlined in paragraphs 2.5, 2.6 and 2.6.1.
Here are the main ones:
- Turn on emergency lights, put the sign of an emergency stop;
- do not move the car;
- don’t move or remove any debris or parts;
- call an ambulance, if there are victims, police.
Depending on the situation, if there is time and opportunity, take photos of the accident scene, the location of the vehicle, bicycle and any other items. Fix on the photo-video tying cars to fixed stationary objects.
Next, or in the process of photographing, concern yourself with finding witnesses to the accident. If there is DVR footage, save it. Perhaps the eyewitnesses or other participants in the accident will have the video.
If not, look for street cameras that may have captured everything that was happening at the time of the hit-and-run on the open door.
Everything, that you can gather and that will prove your innocence, you need to indicate in the documents of GIBDD, let them attach the records or request them from the owners of the cameras.
Make sure that the inspectors correctly measure and indicate everything in the scheme of the accident. In the case of any inaccuracies indicate your comments and do not write, that you agree with the scheme, it is better to indicate that you are acquainted. The scheme and all documents is better to photograph, so you have copies.
If you do everything correctly, in the future it will help you or your lawyer (defender) to prove your innocence.
The general trends in open door accident jurisprudence have been described above. Below are some of the acts, which will show what the courts are guided by, making a decision.
- Judicial acts of all instances to appeal an administrative fine on a passenger car. She was charged under Part 1 of Article 12.29 of the CAO RF.
- Appeal determination of the judicial board of civil cases of the Moscow City Court in case № 33-10146/2019 from 22.03.2019. Here the case is more interesting. The injured car had a CASCO. The insurance company paid damages and wanted to collect on subrogation from the passenger of the car, which opened the door. But the court refused, because it found the driver guilty and sent the insurer for compensation under the MTPL of the driver of the guilty car.
- St. Petersburg City Court decision on administrative case No. 12-245/2018 on March 22, 2018. The driver opened the door, which the cyclist drove into. He was prosecuted under Part 2 of Article 12.24 of the CAO RF and was deprived of his license for 1 year and 6 months. The driver pointed out that the cyclist allegedly violated the traffic rules and other violations in the case, but this did not help him, unfortunately or fortunately.
- St. Petersburg City Court decision on case #7-249/2020 from February 18, 2020. The driver of the car was prosecuted under Article 12.19(6) of the CAO RF. He opened the door of the car into which the trolleybus drove. Arguments that the trolleybus driver violated Article 9.10 of the traffic code on the side distance did not convince the court and the complaint of the motorist was dismissed.
- Appeal determination of the Sverdlovsk Regional Court in case № 33-1639/2020 on January 30, 2020. The insurance company of the owner of the guilty vehicle demanded recourse from the driver, who was not included in the MTPL insurance. In this case, the door in the car was opened by a passenger. The driver referred to the important Resolution of the RF Supreme Court Plenum, but the courts did not take his argument into account.
Regarding the Decisions of the Plenum it is necessary to say separately, as they are a bit contradictory.
Back in 2010 the Plenum on Damage to Health (Resolution #1 of the Plenum of the Supreme Court of the RF of 26.01.2010) was adopted, which stated the following:
It should be taken into account that harm is considered to be caused by a source of increased danger if it was a result of its action or manifestation of its harmful properties. Otherwise, the harm is compensated on general grounds (for example, when a passenger, opening the door of a parked car, causes bodily injury to a passing citizen)..
This is the paragraph the auto driver was referring to in the most recent act of jurisprudence. If you consider what is written in the Plenum, then you can’t hold the driver responsible for the passenger opening the door.
But there is another document. PPVS RF № 58 on MTPL dated December 26, 2017. Its paragraph 12 states the following:
Under the use of a vehicle should be understood not only mechanical (physical) movement in space, but also all actions associated with this movement and other operation of the vehicle as a source of increased danger.
For the purposes of the CMTPL Act, the use of a vehicle is understood as its operation within roads, as well as in territories adjacent to roads and designated for vehicle traffic (in yards, residential areas, vehicle parking lots, filling stations, as well as any other territories where there is a possibility to move (pass) a vehicle).
As we see from court practice, the courts are reluctant to delve into whether the standing vehicle was a source of increased danger, whether it exhibits harmful properties and whether the open door of the car is a manifestation of such properties. But it is an argument, which can release the driver of the car from responsibility for the actions of the careless passenger, if it will be possible to prove his/her position to the court.