A motorcycle, as defined by Wikipedia, is a two- or three-wheeled motor vehicle. Motorcycle design varies greatly to suit a range of different purposes: long distance travel, commuting, cruising, sport including racing, and off-road riding. Motorcycling is riding a motorcycle and related social activity such as joining a motorcycle club and attending motorcycle rallies.
Of all the motorcycles in the world, 58% are in the Asia-Pacific and Southern and Eastern Asia regions, excluding car-centric Japan.
According to the U.S. Department of Transportation the number of fatalities per vehicle mile traveled was 37 times higher for motorcycles than for cars.
Did you catch that number?
The fatality rate for motorcycles is 37 times high than for cars, in the U.S.
Motorcycle accidents on public and private roadways can be particularly catastrophic or fatal and hard to prevent, due to the nature of a motorcycle. Automobile accidents can be one of the worst experiences of your life, especially if you are seriously injured. Motorcycle injuries tend to be even worse than “regular” car accidents, especially in today’s modern car world of air bags, auto-stopping, and accident avoidance technology. Motorcycles, on the other hand, have no seat belts, no air bags, no crumple zone, and generally no protective shell or cage as a regular automobile does. This exposes the Rider to extreme danger compared to a passenger in a motor vehicle or truck. If you are involved in motorcycle accident, to suffer broken bones, brain injuries, and even amputated limbs. After all motorcycles travel as fast or faster than larger and heavier vehicles on the same roadway.
In many motorcycle accidents, the driver of the motorcycle is often blamed and this can be difficult to overcome without sufficient evidence in early intervention in the case. Alabama has what is known as a contributory negligence defense, which can defeat any of your chances of recovery if you are found to be partially at fault for the motorcycle accident for which you are involved in.
If you own a motorcycle you should always carry your insurance at its maximum liability limits and you should always carry uninsured motorist coverage and opted for the highest coverage you can afford. Liability and uninsured motorist cover you as the rider and allow you to make a recovery should the other driver in an accident not have sufficient insurance coverage for the injuries you sustained. It is unfortunate in today’s world but the reality is that many drivers do not have insurance or do not carry coverage of insurance in Alabama. As of the writing of this, Alabama requires a person to have the following:
Liability insurance policies are required to be issued for amounts not less than the minimums set under Section Ala. Code 32-7-6(c). The current minimums are 25/50/25: $25,000 for death or bodily injury to one person; $50,000 for death or bodily injury to two or more persons; and $25,000 for damage or destruction of property of others.
As you can see, in Alabama driver is only required to have $25,000 what coverage if they were to injure you in an accident. This does not relieve them of their responsibility for damages that exceed this amount, that they cause, nor does the law provide any sort of guarantee that someone will carry these minimums should they be involved in an accident.
Why is this important?
If you are involved in an accident, when someone is in complete compliance with the law regarding minimum liability insurance, and the person has no assets or has debt that greatly exceeds their assets, your maximum recovery from them maybe just $25,000. On the other hand, you can purchase uninsured motorist coverage. Uninsured motorist coverage, sometimes also called ‘underinsured’ motorist coverage, is coverage that protects you alone in the event that another driver who is liable in an accident causes you damage enable to pay the amounts do to you. You might also be able to insure yourself what other policies and other coverages.
Due to the particular injuries that most Riders of motorcycles suffer in major accidents, their damages usually for Exceed $25,000. As you might imagine, the hospital bills for can cost tens of thousands or, in extreme cases, even hundreds of thousands of dollars to treat things like:
- a broken leg
- an amputated arm, foot, hand
- a brain injury
- broken bones
- spinal cord injuries
- back injuries
- hand surgeries
- neck injuries
- even Death
These things can easily occur in a motorcycle accident. In the unfortunate event that the rider dies, there’s also the cost of burial and funeral expenses. If the person leaves behind a family, those survivors may have little to go after for their support, once the accident happens.
There are any number of reasons that can be cited for the cause of a motorcycle accident. Many of these are caused by oncoming traffic or other traffic that fails to yield to the right-of-way of the rider of the motorcycle. If the other drivers do not exercise proper care and due diligence, play my completely mystery speed of a motorcycle or not see it at all. In today’s world of distractions, texting while driving, satellite radio, and any number of other distractions found in today’s modern vehicles, very easy do not see a motorcycle who’s silhouette is not even half the size of a normal motor vehicle. Of particular concern in today’s world, especially two Riders motorcycles, are cellular phones and smartphones. While these devices are causing more and more distractions each day, they are also helpful in proving an injured motorcyclists case. It has become easier and easier to obtain information from these devices and the companies that provide the cell signal to them. For instance, if an accident occurred at 1:05 p.m. and also at 1:05 p.m. the accused at-fault driver has a text that stops mid-way, it might be evidence that he or she were in the middle of typing out a text message, instead of paying adequate attention to the roadway.
If you have suffered a major injury in a motorcycle accident, that was not your fault, it is important to get a motorcycle injury attorney involved as soon as possible. Whatever you do do not try to handle this on your own. Definitely remember not to speak with anyone about the accident, definitely not insurance companies or police without the presence of an attorney. Definitely do not sign anything. Always keep in mind that insurance companies record each and every conversation you have with them and these could be used as evidence at trial, later in the case.
The Attorney will handle things such as medical subrogation, investigating the negligence of the other driver, checking for possible product liability it could have contributed to the accident, and will, handle Insurance negotiations with the appropriate company.
It is important to keep in mind that should the motorcycle rider perish in the accident, she is or her surviving family members could bring a cause of action known as wrongful death against the at-fault driver. If a lawsuit is filed before the rider’s death, a survival action could be maintained. It is critical to note that, should someone die from personal injuries before a personal injury lawsuit is filed, those cause of action will be barred from being brought.
There are applicable statutes of limitations that apply to these cases. Waiting too long by a make it impossible to make a recovery or make it so expensive that a recovery may not be economically feasible to facilitate. It is also important to note that you should never make a decision about who is at fault based on a police report alone. Police reports are merely hearsay and are usually inadmissible as evidence, unless the police officer observed the accident occur. This is due to something known as the hearsay rule. This rule prevents someone making an out of court statement, in court, to prove the truth of the matter therein. There are many exceptions to the hearsay rule.
Rule 801 regarding hearsay, is set out, in full, below:
Alabama Rules of Evidence
Article VIII. Hearsay
Definitions. The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements that are not hearsay. A statement is not hearsay if —
(1) PRIOR STATEMENT BY WITNESS. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is
(A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or
(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
(C) one of identification of a person made after perceiving the person.
(2) ADMISSION BY PARTY OPPONENT. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subsection (C), the agency or employment relationship and scope thereof under subsection (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subsection (E).
[Amended 8-15-2013, eff. 10-1-2013.]
Advisory Committee’s Notes
Section (a). Statement. The hearsay evidence objection applies only to offered evidence that constitutes a statement. Such a statement is normally in the form of a verbal assertion and may be oral or written. This definition is consistent with pre-existing Alabama practice. See, e.g., McDuffie v. First Nat’l Bank of Tuskaloosa, 450 So.2d 451 (Ala.1984) (handwritten memos attacked as hearsay); Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983) (photocopy of a shipping document subject to hearsay objection). It is the assertive nature of the statement that gives rise to the hearsay concern posed by admission of a statement by an out-of-court declarant.
No definitional problem arises with regard to whether assertions in words fall within the ban on hearsay. The difficulty lies in the treatment of conduct. Some conduct – such as pointing in response to a question – is so synonymous with a statement that it clearly constitutes an assertion for purposes of the hearsay rule of exclusion. Other acts, despite their assertive impact in the litigation, are not so easily identified as statements. Rule 801(a) excludes from the operation of the hearsay rule all evidence of conduct that is not intended as an assertion. Such an express “intent to assert” requirement, as a prerequisite for applying the hearsay rule to acts, would appear to go beyond that which is required by preexisting Alabama law. See C. Gamble, McElroy’s Alabama Evidence § 241.01(2) (4th ed. 1991). Under Rule 801, whenever evidence of an act is offered, it will be for the trial court to determine whether it was intended by the actor as an assertion. The burden of proving such an intention is on the party claiming the intention. See Fed.R.Evid. 801(a) advisory committee’s note.
Section (c). Hearsay. This section embraces the historic, definitional nucleus of hearsay – the principle that the statement is hearsay only if it is offered to prove the truth of the matter asserted therein. See Meriweather v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972); 1 Alabama Pattern Jury Instructions: Civil § 15.10 (2d ed. 1993). See also C. Gamble & R. Sandidge, Around and Through the Thicket of Hearsay: Dispelling Myths, Exposing Imposters and Moving Toward the Federal Rules of Evidence, 42 Ala.L.Rev. 5, 13 (1990). This rationale has given rise to a host of “other purposes” for which such a statement may be admitted as exempt from the hearsay exclusion. See, e.g., Ex parte Brown, 499 So.2d 787 (Ala.1986); Piper Aircraft Corp. v. Evans, 424 So.2d 586 (Ala.1982); Tierce v. State, 396 So.2d 1090 (Ala.Crim.App.1981). See also C. Gamble, McElroy’s Alabama Evidence §§ 207.01, 263.01, 273.02, 274.01, 274.02, and 159.02(2) (4th ed. 1991).
Section (d). Statements that are not hearsay. The first subsection lists several types of statements that traditionally would have fallen within the definition of hearsay. These statements, however, are declared arbitrarily not to be hearsay. The second subsection results in the transfer of admissions from their historic designation as constituting an exception to the hearsay rule to reclassification as nonhearsay.
Subsection (d)(1). Prior statement by witness. This provision recognizes the admissibility, over a hearsay objection, of two types of statements made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement. The indicia of reliability possessed by such statements – the presence of the witness, the ability to cross-examine the witness, and the nature of the statement – are deemed strong enough to overcome the traditional hearsay dangers.
Subdivision (d)(1)(A). Inconsistent statement. If a witness testifies, and is subject to cross-examination, then that witness’s prior inconsistent statement is exempted from the hearsay definition, but only if it was made under oath, subject to the penalty of perjury, and made at a trial, hearing, or other proceeding, or in a deposition. This rule is consistent with preexisting Alabama practice. See Hooper v. State, 585 So.2d 137 (Ala.1990); Randolph v. State, 348 So.2d 858 (Ala.Crim.App.), cert. denied, 348 So.2d 867 (1977). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 116 (1988). Compare Ala.R.Civ.P. 32(a)(1) (containing a broad rule with regard to the admissibility of prior inconsistent statements found in a party witness’s deposition). Inconsistent statements generally, offered to impeach a witness, will continue to be admissible upon the theory that such statements are not offered to prove the truth of the matter asserted but, rather, to show that the witness says one thing in court today but said something different in the past. Ala.R.Evid. 801(c); Redus v. State, 243 Ala. 320, 9 So.2d 914 (1942), cert. denied, 318 U.S. 774 (1943). See C. Gamble, McElroy’s Alabama Evidence § 159.02(1) (4th ed. 1991); C. Gamble, C. Howard, & J. McElroy, The Turncoat or Chameleonic Witness: Use of His Prior Inconsistent Statement, 34 Ala.L.Rev. 1 (1983). Common law would not admit such statements as substantive evidence of the truth of the assertion unless the inconsistent statement was made by a party opponent. See Bailey v. State, 41 Ala.App. 39, 123 So.2d 304 (1960). In contrast, Rule 801(d)(1)(A) will work to admit all inconsistent statements, meeting its requirements, as substantive evidence of the truth of the matter asserted in them.
Subdivision 801(d)(1)(B). Consistent statement. An impeached witness generally may not be rehabilitated by proof of prior consistent statements. Such rehabilitation evidence may be offered, however, if the cross-examiner suggests that the witness has recently fabricated the story, has been subjected to improper influence, or has an improper motive. See McDonald v. State, 448 So.2d 460 (Ala.Crim.App.1984). See also C. Gamble, McElroy’s Alabama Evidence § 177.01 (4th ed. 1991). Even if such consistent statements are admitted, however, traditional case law admits them only for the nonsubstantive purpose of bolstering the credibility of the witness. E. Cleary, McCormick on Evidence § 251 (3d ed. 1984). The present rule, however, admits such statements as substantive evidence of the truth of the matters contained therein. The committee considers this departure from the classic hearsay principle appropriate, because the witness is on the stand and is subject to cross-examination concerning the statements.
Subdivision 801(d)(1)(C). Identification statement. This subdivision, found in the corresponding federal rule, has been omitted. This omission constitutes a rejection of the federal principle that a prior identification statement, of a witness who is now testifying and subject to cross-examination, is definitionally nonhearsay and therefore admissible substantively to prove the truth of the matter asserted. See Fed.R.Evid. 801(d)(1)(C). Compare Me.R.Evid. 801(d)(1). Alabama law will continue its refusal to recognize any such arbitrary exemption from the definition of hearsay. See Thomas v. State, 461 So.2d 15 (Ala.Crim.App.), aff’d, 461 So.2d 16 (Ala.1984). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 113 (1988).
An identification statement may be admissible, over a hearsay objection, but this must be accomplished under some other theory. Alabama has long admitted identifications, for example, when offered to prove the act of identification rather than the truth of the matter asserted. See, e.g., Baker v. State, 555 So.2d 273 (Ala.Crim.App.1989); Bui v. State, 551 So.2d 1094 (Ala.Crim.App.1988), aff’d, 551 So.2d 1125 (Ala.1989), vacated, 499 U.S. 971 (1991). See also C. Gamble, McElroy’s Alabama Evidence § 273.01 (4th ed. 1991). An identification statement could be admissible to show lack of credibility if an in-court identification is inconsistent with an out-of-court one. Ala.R.Evid. 801(c). See Whitmore v. Burge, 512 So.2d 1320 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 242.01 (4th ed. 1991). If the prior identification was made under oath at a trial-like proceeding or in a deposition, and the identifying witness presently testifies and is subject to crossexamination, then nothing precludes the identification from being offered, under Rule 801(d)(1)(A), to prove the substantive truth of the matter asserted, if it is inconsistent with the witness’s present testimony. See Randolph v. State, 348 So.2d 858 (Ala.Crim.App.), cert. denied, 348 So.2d 867 (Ala.1977).
Subsection 801(d)(2). Admission by party opponent. Admissions of a party, as a matter of traditional evidence law, have been classified as an exception to the hearsay rule. This exception is based upon the indicia of reliability and trustworthiness – i.e., one would normally not make a statement against interest unless it was true. In contrast, however, Rule 801(d)(2) declares such admissions to be definitionally nonhearsay. This realignment results in a more generous treatment for such statements as regards their admissibility. Henceforth, any statement of a party, offered against that party, constitutes an admission, without regard to whether it was against that party’s interest at the time the statement was made. Greater admissibility is based upon the concept that the adversary system, rather than any “against interest” circumstance, satisfies the concerns underlying the hearsay rule. Much of the more modern Alabama precedent contains similar language, which places less emphasis upon the “against interest” aspect of the admission and greater emphasis upon whether it is offered against a party and is a statement that is inconsistent with that party’s position at trial. See Woods v. Perryman, 514 So.2d 995 (Ala.1987); Mobile County v. Brantley, 507 So.2d 483 (Ala.1987). Rule 801(d)(2) is consistent with preexisting Alabama law, which exempts admissions from the opinion and firsthand knowledge requirements. See Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963) (opinion); Bains Motor Co. v. Le Croy, 209 Ala. 345, 96 So. 483 (1923) (firsthand knowledge). See also C. Gamble, McElroy’s Alabama Evidence § 180.01(2), (5) (4th ed. 1991). Subdivision 801(d)(2)(A). The party’s own statement. The classic category of admissions is that including a party’s own statement. Such a statement is not subject to a hearsay objection, even if the party makes the statement in a representative capacity. As long as the statement is relevant to the party’s dealings or activities as a representative, and is offered against the party in that representative capacity, no further inquiry is necessary regarding whether the party was acting in the representative capacity in making the statement.
Subdivision 801(d)(2)(B). Adopted admissions. The principle stated in this subdivision, unchanged from the common law, works to admit any statement of which a party has manifested an adoption. If the adoption is express, then it is admissible just as any other admission is. Ala.R.Evid. 801(d)(2)(A). Adoption, however, may be manifested in any appropriate manner, including conduct. Whether any given conduct rises to the level of constituting adoption depends upon the prevailing circumstances. A historic form of adoptive conduct has been silence. Silence, in response to an accusation, has been held to constitute a tacit admission as to the truth of the accusation. See C. Gamble, McElroy’s Alabama Evidence § 193.02 (4th ed. 1991) (silence as an adopted admission in civil cases); J. Colquitt, Alabama Law of Evidence § 8.3(g) (1990). Rule 801(d)(2)(B) should have no impact upon Alabama’s abrogation of the tacit admission rule in criminal cases. See Ex parte Marek, 556 So.2d 375 (Ala.1989). See also C. Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional – A Doctrine Ripe for Abandonment, 14 Ga.L.Rev. 27 (1979).
Subdivisions 801(d)(2)(C) and (D). Vicarious admissions. These two subdivisions deal with the issue of when an agent’s statement constitutes an admission against the principal. If the agent is expressly authorized to make a statement, then, according to subdivision (C), the expression clearly constitutes an admission of the party granting the authority to speak. See E. Cleary, McCormick on Evidence § 267 (3d ed. 1984). The more difficult issue, and that addressed by subdivision (D), concerns whether an agent’s statement constitutes an admission of the principal when the agent has no express authority to speak. Preexisting Alabama law has dealt with this issue through application of the corresponding principle governing whether the principal is legally responsible for the acts of the agent – i.e., whether the act was committed (or the statement was made) within the line and scope of the agent’s authority. Because many agents do not have the authority to speak, such statements often are not admissible. See C. Gamble, McElroy’s Alabama Evidence § 195.01 (4th ed. 1991). Rule 801(d)(2)(D) embraces a more liberal test for the admissibility of such vicarious admissions. If the statement is related to a matter that is within the scope of the agency or employment of the declarant, then it is admissible against the principal. See Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 8-3(d) (1987).
Subdivision 801(d)(2)(E). Coconspirator admissions. This subdivision continues the historic coconspirator rule, admitting against one conspirator the statements of another if made “during the course and in furtherance of the conspiracy.” See Lundy v. State, 539 So.2d 324 (Ala.Crim.App.1988); Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); C. Gamble, McElroy’s Alabama Evidence § 195.03 (4th ed. 1991). As recognized by both state and federal authority, admissibility is denied to statements made after the objectives of the conspiracy have either failed or been achieved. See Wong Sun v. United States, 371 U.S. 471, 490 (1963); Eaton v. State, 280 Ala. 659, 197 So.2d 761 (1967).
Advisory Committee’s Notes to Amendment to Rule 801(d) Effective October 1, 2013
Rule 801(d)(1) has been amended to add subsection (C). This reverses Alabama’s original rejection of the principle that a prior identification statement of a witness who is now testifying and subject to cross-examination is definitionally nonhearsay. Under this revised rule, the prior identification is admissible only when the person who made it testifies at trial and is subject to cross-examination. This ensures that if any discrepancy occurs between the witness’s in-court and out-of-court testimony, the opportunity is available to probe, with the witness under oath, the reasons for the discrepancy so that the trier of fact might determine which statement is to be believed. In criminal cases, the prior identification must meet constitutional and due-process requirements against unnecessarily suggestive identifications. Rule 801(d)(2) has been amended to respond to issues raised by Bourjaily v. United States, 483 U.S. 171 (1987), and the resulting 1997 amendment to Federal Rule of Evidence 801(d)(2). This amendment codifies the holding in Bourjaily by stating expressly that a court shall consider the contents of a coconspirator’s statement in determining “the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” According to Bourjaily, Rule 104(a) requires these preliminary matters to be established by a preponderance of the evidence. This amendment extends the reasoning of Bourjaily to statements offered under subsections (C) and (D) of Rule 801(d)(2). In Bourjaily, the Court rejected treating foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee believes it appropriate to treat analogously preliminary questions relating to the declarant’s authority under subsection (C) and the existence of agency or employment relationship and the scope thereof under subsection (D). This amendment is in accordance with existing Alabama practice. The principal justification in Bourjaily for allowing “bootstrapping” was Federal Rule of Evidence 104(a), which allows the trial judge to consider the bootstrapping statement permitted under Rule 801(d)(2) in determining the existence of a conspiracy. Alabama’s Rule of Evidence 104(a) is identical to Federal Rule of Evidence 104(a) and would also allow the trial judge to consider the alleged conspirator’s statement in proving the existence of a conspiracy. Additionally, regarding questions of agency, Alabama courts have traditionally allowed the trial judge to consider the statement itself along with other direct and circumstantial evidence. In New Plan Realty Trust v. Morgan, 792 So. 2d 351, 361 (Ala. 2000), the Alabama Supreme Court reviewed the issue of proving agency and, citing several cases that predate the adoption of the Alabama Rules of Evidence, held: “‘”[A]cts and declarations of one whose agency is the subject of inquiry, though incompetent when there is no other evidence of agency or of ratification, become competent for consideration in determining both the fact of agency and the scope of authority originally given, when shown in connection with other evidence of agency.”‘ “Warren Webster & Co. v. Zac Smith Stationery Co., 222 Ala. 41, 44, 130 So. 545, 547 (1930) (quoting Birmingham Mineral R.R. v. Tennessee Coal, Iron & R.R. Co., 127 Ala. 137, 145, 28 So. 679, 681 (1900) …).”
Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.