Okay let’s look at the facts as reported by Courthouse News with a story out of San Francisco. A window washer is washing windows eleven stories above the roadway. He falls and lands on a car that was driving below and on the public roadway. That is a 100 foot fall with the worker landing on the roof of a Toyota Camry. Obviously the roof of the Camry gets really dented and the driver would likely have been hurt as well.
The driver in turn wanting to be compensated for property damage and for his personal injury sues the window washer and his employer. So he sues the window washer and his employer. This makes perfect sense to me, but to some lay people it may seem unfair. Why?
In [th]is April 9 lawsuit in Superior Court, Alcozai says, "Perez and Century Window Cleaning were negligent in the operation of the window washing equipment, which caused defendant Perez to fall." Alcozai claims the negligence not only damaged his car but injured him too, costing him lost wages, lost earning capacity, personal injuries, pain and suffering and emotional distress.
You ask: Why can the motorist sue? Should the motorist sue the poor guy that fell?
He can and he should sue. Here is why. Let us use an analogy that would make it clearer and less prone to emotional biases. Your brain is biased because the Camry saved the window washer’s life and so your sympathy’s are in favor of the poor guy who fell; after all he must be seriously hurt and I am not making light of his injuries which I am sure are signficant. But to assess fault you can't pay attention to what happened after the guy fell; focus on what he or his company did that made him more likely to fall. [They don't call the window washer's harness 'fall arrest gear' for nothing.] Remember the guy driving along the road was not in any way negligent. Any negligence would be on the part of the guy who fell and his employer. So here is the analogy I want you to pay attention to. What if what fell was not a human window washer but a 500 pound safe that was being lifted into the building. The safe would fall, hit the car, crush the roof and the driver and the safe would probably be perfectly fine.
Your biases would then be in favor of the Camry’s driver and you would feel nothing for the safe. It could be a load of pumpkins and again you would believe whatever happened to the pumpkins was irrelevant to the poor Camry driver's right to seek damages. You see, the window washer’s injuries have little or nothing to do with the Camry driver’s claim for damages.
Your feelings about the window washer's injuries (his falling from above) aren't relevant to assessing his fault. After all, would you feel sorry for a dead drunk driver who plowed through a stop sign at an intersection injuring the Willis Clan who were driving through with the right-of-way? That's no different than a company or its employee that fails to use proper fall arrest procedures. Their injuries are unrelated to the assessment of their fault.
Let us also keep in mind the Camry's owner has auto insurance and his own insurance company may have paid for his car damage. Within the fine print of his auto insurance policy is what is called a subrogation clause. That fine print allows the Camry driver's insurance company to sue the window washer and his employer to recover damages; meaning the Camry's insurer wants to be reimbursed for what they paid. The decision on suing or not suing may be made by another insurance company and not the owner or driver of the Camry. The Camry driver may also have been covered under a workers' compensation insurance policy which would also invoke a right to sue.
To find more articles search using this term: “window washer falls and gets sued by Camry driver” and keep your eyes looking up!
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