In his cogent review of the legal history of cycling, Bicycling and the Law: Your Rights as a Cyclist, Bob Mionske reminds us cities have a long history as chaotic crucibles for competing vehicles and devices. But cyclists have been under-prepared to negotiate the scrum of walkers, horsemen, and horse carriages (on rail and otherwise) that competed for priority on the roads. Add electric railcars and motor carriages to the mix, and well you’ve got the potential for carnage!
It was always so on American roads and it’s only marginally better today. Our roads are more orderly, our laws more refined, yet vehicles are larger and travel faster than ever. But we’re often unprepared for the situations and conditions we face daily (but are never addressed in DMV test booklets). In early childhood those training wheels came off and that was about it for instruction.
This second post revisits Mionske to look at specific situations that cyclists encounter daily to see how ‘duty of care’ is applied in practice. (Disclaimer: I’m not an attorney, just a close reader!)
“With Rights Come Duties”
Common law has evolved to demand a ‘duty of care’ from road users so that caution and prudence could prevail on busy streets. What is ‘duty of care’? Simply put, travelers have a right to expect that all other travelers will exercise reasonable care to avoid collision. We enjoy an expectation of safety but also have an obligation to exercise due care not to cause injury to others. (Common sense, yes, but a principle that took considerable time to codify in statutes.)
Attorney Bob Mionske’s straightforward Bicycling and the Law shows how the ‘duty of care’ extends to all road users, but emphasizes how cyclists can find ourselves particularly vulnerable on the road and in a court of law. Mionske seems to touch on every situation from heeding nature’s call (use discretion!) to the most common causes of road injuries and even fatalities.
Here are a few examples where a bit of due care might help avoid accident and injury.
Example 1: Come to a Complete Stop and Look Around
You know that you’re required to come to a full stop at a stop sign, but how often do you fully halt your forward movement? (Forget about dismounting or touching ground; we’re not obligated to do that.) A rolling stop is no stop at all in the eyes of the law, of course.
But it’s more than just stopping, Mionske says. We are obligated to “meet the purpose of the stop warning.” That is, to make a judgment about safety before proceeding through an intersection. But few cyclists or motorists make reasoned appraisals at every stop, you’ll say. And you’re right. But that won’t help you in the event of a collision or a court appearance.
Why is this important? If you’re not riding in compliance, the motorist who strikes you cannot be held liable. He can’t be at fault for not anticipating your illegal behavior. But if you are riding in compliance, Mionske says, “you are shielded from a rebuttable presumption of negligence in the event of an accident.” In practice that means that you can collect damages for your injuries without having those damages discounted (or nullified) because you are partly or fully at fault.
Example 2: Ride to the Right ‘When Practicable’
Every vehicular code requires riders to ride to the right side of the road “when practicable.” Discretion is left to cyclists to shift position when necessary or even to take the lane, but it’s not a blank check. We can’t impede traffic for no good reason.
Mionske devotes considerable ink to reviewing the variety of scenarios that a cyclist can expect to show how the ‘reasonable person’ standard comes into play when evaluating cyclist behavior.
Judges and juries in civil trials, for example, use the hypothetical ‘reasonable person’ to apply an objective standard to the of care, Mionske reminds us. This helps to determine negligence and liability in the case of a collision.
What does ‘close as practicable’ mean in practice? It is a “fluid concept,” Mionske says, but some conditions are normally codified in traffic law. Cyclists can move from the right when:
We’re traveling at the prevailing speed of traffic and so by definition aren’t impeding traffic;
Substandard lanes force us to take the lane (and motorists must pass safely or wait);
We must avoid hazards, parked cars, or moving objects that include cars, pedestrians, animals, and of course other cyclists.
Take care, cyclists, to understand the legal particulars of ‘riding to the right when practicable.’ You may find yourself explaining your actions to a cop with a ticket book, and in that case it’s comforting to be able to defensively ground your actions in the law.
Example 3: Take Extra Care When Riding Sidewalks or Crosswalks
Cyclists owe pedestrians a duty of care and a cyclist can be found liable for injuries if a pedestrian unwittingly steps into her path. That’s the message offered by Mionske, who reasons that on pedestrians’ turf – the sidewalk – negligence can easily accrue to the cyclist.
Legally, sidewalk riding is tricky because regulations vary according to local ordinance and not the state vehicular code. And those laws vary considerably from jurisdiction to jurisdiction. Westside cities, for example, offer a patchwork of sidewalk riding regulations. In Beverly Hills the code is ambiguous and confusing on the matter, so it’s best just not to do it. But I see it every day.
From a safety perspective, the laws of the jungle apply. The pedestrian’s nemesis is the cyclist, who may bear down on her without warning. By the same token, the sidewalk rider’s foe is the motorist, who may turn right without checking the sidewalk or move though an intersection without looking given their expectation of safe passage. As a cyclist on the sidewalk, we’re putting pedestrians and ourselves in clear danger because we cross driveways and enter crosswalks even though other sidewalk users don’t expect us to be there.
Legally, crosswalks are interesting case because they’re considered “an intangible extension of the sidewalk,” according to Mionske. Pedestrians there always have the right of way (even if disobeying the traffic control in marked crosswalks), while at unmarked intersections pedestrians are obligated to yield the right-of-way to passing motorists and cyclists (yet still accorded deference – so exercise due care!).
The takeaway is that it’s best not to ride the sidewalks and if you do, to give pedestrians a wide berth and notice (use a bell or horn) and expect motorists to do what they always do.
Example 4: Maximum Visibility Minimizes Risk
If there’s low-hanging fruit to be picked, according to Mionske, it’s to make ourselves as visible as possible to other road users. Brightness is the main cue for motorists judging distance, so make those lights bright and noticeable.
Now, there are statutory requirements and standards for lights and reflectors in California, but there is no standard for conspicuity. In other words, states prescribe minimum performance standards for lights but fail to require that they be deployed as effectively as could be.
Compliance with state standards will meet the ‘reasonable person’ standard, so cyclists cannot be held liable for failing to have effective lighting, but our safety depends on additional prudence. Better to avoid that collision than to endure it and try to collect.
Legally, Mionske concludes, you might enjoy a greater presumption of due care in the unfortunate event of a collision if you are properly outfitted with lighting and reflectors. (nb: This week REI is having a big sale on bike accessories including lights. Strap a few extra on your bike helmet and frame and stick some reflective tape on your shoes, cranks and wheels.)
In Summary: Negligence has Real-World Consequences
Our roads are actually much more orderly than in earlier days, but cyclists remain vulnerable and must attend more closely to their duty of care. While motorists are protected by sheet metal and insulated from liability by auto insurance, cyclists in contrast risk their safety and security merely whenever they ride to the market.
Because our comportment on the road has outsized implications for the cyclist, Mionske recommends that we ask ourselves several questions when we roll through a stop sign or make a sudden lane change. Is it a wise move? Would a prudent person do this in the same situation? And more practically for a negligence-minded attorney, Would a jury find that a reasonable person of ordinary prudence would have done it?
The ‘reasonable person’ standard is an objective rather than a subjective standard, Mionske reminds us. “It’s neither the standard of behavior of the person who takes no precautions, nor of the person who takes excessive precautions. Instead it’s the standard of behavior of a person who takes reasonable precautions.”
Cyclists need always remember that at every step in an unfortunate encounter we may be judged by folks who are not our peers: the cop that writes the ticket; the motorist that can’t understand our road experience; and the judge or jury that coldly assesses liability for negligence.
Take Mionske up on his invitation to consider the nuances of the law. I highly recommend Bicycling and the Law if you’re interested in learning more about your rights and duties as a cyclist!