Driving on the shoulder to bypass traffic in California is illegal in most circumstances and can have serious implications in a personal injury case, especially if it contributes to a collision or injury. Here’s how this behavior affects liability and legal strategy:
🔷 1. Illegal Use of the Shoulder = Presumed Negligence
🚫 California Vehicle Code §21755:
A driver may pass on the right, but not by driving off the paved portion of the roadway — i.e., not on the shoulder.
If someone causes an accident while driving on the shoulder to get around traffic, this is typically a violation of traffic law, which can lead to:
- Negligence per se: The illegal act creates a presumption of negligence if it causes injury.
- A stronger liability case for the injured party.
🔷 2. How It Affects a Personal Injury Case
If the at-fault driver used the shoulder to bypass traffic and:
- Hit a pedestrian, bicyclist, or another vehicle merging,
- Caused another driver to swerve or crash,
- Created an unsafe situation leading to a chain reaction,
Then they could be held liable for resulting injuries and damages.
🔷 3. Comparative Fault Still Applies
Even if the driver using the shoulder was negligent, the court may also examine the actions of the other party.
Example:
- Shoulder driver is 90% at fault for sideswiping a merging car.
- Injured driver wasn’t wearing a seatbelt or was distracted — they may bear 10% of the fault.
- Under California’s pure comparative fault, their damages are reduced by their percentage of fault.
🔷 4. Key Evidence in These Cases
To prove liability against a driver who used the shoulder, you’ll want:
- Dashcam footage (yours or another vehicle’s)
- Traffic camera or surveillance video
- Eyewitness statements
- Police reports citing shoulder use or improper passing
- GPS/vehicle telematics data showing abnormal path
🔷 5. Types of Recoverable Damages
If you’re injured due to another driver’s illegal shoulder use, you may be able to recover:
- Medical expenses
- Lost income
- Property damage
- Pain and suffering
- Punitive damages (if the conduct was especially reckless)
🔷 6. Insurance and Shoulder Use
Insurance companies will usually treat shoulder driving as a serious violation. If you’re the injured party:
- The other driver’s insurer will likely try to settle quickly to avoid a worse verdict.
- If you were driving on the shoulder and caused the crash, your insurer may deny coverage for willful illegal conduct, depending on your policy.
✅ Strategic Tip for Injury Victims
- Emphasize the illegality of shoulder driving and negligence per se.
- Back up your case with solid video or witness evidence.
- Preemptively address comparative fault if the defense raises it.
Would you like help preparing:
- A demand letter to the insurance company?
- A complaint for filing a lawsuit?
- Or advice on negotiating a settlement if you’re the injured party?
Law Offices of James R. Dickinson – 909-848-8448
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