Problem.Dispute.Settlement of tort claim

     Julie Jogger was jogging on the sidewalk at night. She noticed a dog limping in the middle of the street and feared that the dog might be hit by an automobile. Without looking or listening for approaching traffic, she darted into the street to save the dog. A bicyclist riding toward her, whom she had not seen, swerved to avoid hitting her and, in doing so, was hit by an oncoming motorist who tried to stop as soon as the bicycle swerved into the line of traffic. The bicyclist had been riding against traffic (i.e. was illegally riding on the wrong side of the street for the direction she was taking) and was wearing dark colored clothing.

     Julie and the dog were unhurt. The bicyclist suffered a broken arm, concussion, and partial hearing loss, and the bicycle was destroyed. The female driver of the automobile, an uninsured motorist, was uninjured, and the car suffered no damage, but the driver's baby daughter, sitting unrestrained by either seat belt or baby seat in the front passenger seat of the car, was thrown against the dashboard and suffered a skull fracture and a broken jaw. The bicyclist and the baby were not covered by medical insurance.

     An ambulance called by a nearby resident took the injured parties to the hospital. Thereafter, a rookie police officer arrived and took a very incomplete police report from Julie.

     Part A

     A few days after the accident, the bicyclist contacted Julie. The bicyclist asked Julie for reimbursement of medical expenses to date and for money to buy a new bicycle. The bicyclist also reported to Julie that a doctor had diagnosed the hearing loss as "95% certain to be temporary" and that an expensive diagnostic test (which the bicyclist could not afford) could confirm whether the hearing loss would be temporary or permanent. Julie offered to pay the bicyclist $1500 (payable in one month) in exchange for a complete release of all the bicyclist's claims against Julie arising from the accident.   The bicyclist at first dismissed the proposal as insufficient, but later agreed to it after Julie said: (1) that Julie would also pay for the diagnostic test ($1,000) when billed by the doctor; and, (2) that if the bicyclist didn't agree, Julie would call the police officer who took the police report to inform him that the bicyclist had been riding on the wrong side of the street and had been wearing dark clothing. Julie, with assistance from a lawyer friend, drafted, and she and the bicyclist signed, a document that accurately reflected their agreement.

     Julie failed to pay the $1500 or the doctor's diagnostic bill when due under the terms of the agreement with the bicyclist. The diagnostic test has indicated that the bicyclist's partial hearing loss is likely to be permanent.  The bicyclist has consulted you for advice. What advice will you give the bicyclist about her rights, if any, against Julie? 

     Part B

     The motorist (the mother of the injured baby) contacted Julie after the accident. During the course of the conversation, the motorist mentioned her concern that the child's father not learn that the child was sitting unrestrained by either seat belt or baby seat in the front passenger seat of the car at the time of the accident, because he might use that information in an upcoming custody battle with the mother in proceedings associated with dissolution of their marriage.   Julie said that she would refrain from sharing that information with anyone unless subpoenaed to answer questions under oath in any civil or criminal proceeding that might be instituted, if the motorist would agree, on behalf of herself and of the baby, to release all claims against Julie arising from the accident. With the assistance of her lawyer friend, Julie drafted a document reflecting those terms and the two parties executed the document.

     The motorist and the baby's father reconciled and abandoned divorce and custody proceedings. The two parents have approached you for advice about whether they can recover any money from Julie for the child's injuries resulting from the accident. What is your opinion and why? Again, while you should consider the effect of the agreement on any tort claim that the mother and father might otherwise assert on behalf of their child, do not consider the merits of the tort claim itself (e.g. do not consider negligence, contributory negligence, comparative fault, or tort damages).  You may also assume that if the agreement is enforceable, it binds the father even though signed only by the mother.