Dangerous Therapy

The New Year brings resolutions of all shape and sizes. Several (okay; most) are quickly dismissed and deemed insignificant by Valentine’s Day. But for many, sticking to a diet, losing weight, and getting in shape are all sincere and discerning goals to be realized by wannabe Texas health aficionados (especially those under doctor’s orders).

So starting slow is the key. Dust off that 10-speed, hop on, and go for a short, sustainable ride. Take your pet out for an even-paced walk around-the-block. You can work up to the rolling hills and extended dog park excursions in due time. Moderation is the key – especially when your “activity button” hasn’t been pushed for a while.

But what happens when bike meets dog? Who’s gonna win that confrontation – and who’s at fault? Is there any correlation between the speed of the bicycle and the suddenly-freed animal darting in front of the oncoming chain-driven apparatus?

From a true Travis County case: our “cyclist” was traveling with northbound traffic, and our dog-walking enthusiast stopped his westbound dog walking activities to tie his shoe. While doing so, the “dog walker” attempted to secure the dog’s leash under his shoe. His dog, however, wasn’t quite as cooperative. “Bowser” dog broke free, ran into the street, and collided with the front tire of cyclist’s bike. Cyclist was thrown from his bicycle, severely injured his arm while attempting to break his fall. Cyclist sues dog walker for damages arising from his personal injury.

Where personal injury negligence is concerned, Texas follows a modified comparative negligence formula which includes the 51% bar rule. Defined, this rule simply states that if the plaintiff is 51% or more at fault for his/her injures, he/she recovers nothing. If the plaintiff is exactly one-half at fault (50%) any damages awarded are recoverable, but cut in half.

As to the alleged negligence in question, the jury first had to consider: (1) whether dog walker’s and/or cyclist’s negligence – if any – was the proximate cause of the injury in question. Predicated on a finding that both parties were negligent to some degree, and that said negligence was the proximate cause of the plaintiff’s injuries, the jury was then required to (2) allocate a specific percentage of fault to each party, with the total allocated fault adding up to 100%.

The facts presented showed that cyclist was traveling at a high rate of speed to “maximize his workout” and, additionally, was not attentive to both the road and his surrounding environment. Dog walker stipulated that Bowser jerked himself free from the tentative leash-under-foothold and ran out into the street. Dog walker also stated that he didn’t see Bowser collide with cyclist.

After a three-day trial the jury determined that, by a preponderance of the evidence, the negligence of the party or parties was the proximate cause of the injuries. The jury also determined that the defendant (55%) was more at fault than the injured plaintiff (45%), so damages were recoverable. The jury awarded a total of $18,345.00 to cyclist for past and future (a) medical expenses, (b) physical pain/mental anguish, and (c) physical impairment. However, cyclist’s damages were lowered by the appropriate percentage. Hence, of the more than $18,000 in damages awarded, cyclist only received $10,089.75 – exactly 55% of the determined fault of the defendant.

A couple of important points from this scenario: cyclist’s aggressive riding and inattentiveness almost voided recovery: the difference between a five-figure recovery and going home with nothing was a miniscule 6% of negligent behavior. The jury easily could have denied an award altogether, noting that dog walker had his dog leashed and, but for a momentary lapse of reason (and a weak foothold on said leash), dog walker’s behavior was reasonable and foreseeable.

Second; damages paid to the plaintiff were ostensibly extracted from defendant’s homeowner’s policy or renter’s insurance. So depending on your living situation, it’s imperative that any household animals are included on your insurance statements of record.

Recap: take a moment to update your homeowner’s/renter’s policy to include all pets. And as for getting in shape: while a bike ride can be invigorating, stick with the Stairmaster. Taking a tumble off your cardiovascular equipment will like result in less injury – and a lot less hassle.