[SDCBC] ignoring a detour & bike lane closed signs

Sat Jun 9 14:43:20 EDT 2007

Richard, if only the jury could be comprised of some members from this list!

I think the cyclist is totally without fault and I don't see how anyone
could see it any differently.  She was not doing anything legally wrong, by
any stretch, and the motorist was clearly in violation of 21750:

----------------------------------------------------------
Overtake and Pass to Left

21750.  The driver of a vehicle overtaking another vehicle or a bicycle
proceeding in the same direction shall pass to the left at a safe distance
without interfering with the safe operation of the overtaken vehicle or
bicycle, subject to the limitations and exceptions hereinafter stated.
----------------------------------------------------------
http://dmv.ca.gov/pubs/vctop/d11/vc21750.htm

One might argue that the only legal obligation the cyclist had was to "ride
as close as practicable to the right-hand curb or edge of the roadway" per
CVC 21202, and, apparently, there is no dispute that she met that
obligation.  However, should there be a question regarding that, it should
be noted that 21202 (a) (3) obviates her even from that obligation, since
the lane was quite apparently "too narrow for a bicycle and a vehicle to
travel safely side by side within the lane".

http://www.dmv.ca.gov/pubs/vctop/d11/vc21202.htm

As far as the bike lane closed signs, I don't see any relevance of that fact
to assigning legal responsibility for this crash.

So, I don't see how ANY of the fault can be hers.  Seems pretty cut and
dried to me, but, then, I'm a software engineer, not a lawyer or a
non-cyclist judge or jury member.

I think it's worth noting in this forum that the fact that many experienced
cyclists who have experimented with using more assertive lane positioning
(riding in a centerish position in order to control the full lane) in
situations like this and have become convinced that doing so makes them
significantly safer, including making them much less likely to invite
someone to try to squeeze into the too narrow lane when passing and thus
sideswipe them, is irrelevant to this case.  As far as I know, all the
evidence about that is anecdotal and there is no way anyone could reasonably
expect cyclists in general to know this and require them to act
accordingly.  In other words, I think it would preposterous, given the
current state of (mis)understanding about cyclist safety in traffic in our
culture, to hold a cyclist riding in a narrow lane at fault for not being
far enough left, and, thus, inviting passing motorists to share a lane
side-by-side that is too narrow to be shared.

Given the likely potential jury pool, I think John Forester's and Sachi
Wilson's points needs to be emphasized (continued below):

On 9 Jun 2007, at 8:49 am, John Forester wrote:
> > Here's where we get into controversial discussion about what's
> > wrong with bike lane theory. That is, that bike lanes have some
> > real importance to both cyclists and to motorists, which is rather
> > an intellectual stretch.
>
...

> > As I have written for years, all these expectations
> > surrounding bike lanes are damaging.
>

Mr. Forester gets a lot of flak in the bike advocacy community for making
statements like this, and those that logically follow regarding why bike
lanes should usually not be supported if not opposed by us, but it's cases
like this that illustrate how much the "need" for bike lanes implied by the
mere existence of each and every bike lane really works against cyclists'
interests.  (continued below Sachi's comments)

On 6/9/07, Sachi Wilson <sachiwilson at sbcglobal.net> wrote:

I believe Mr. Forester is correct.
>
> The discussion up to now, I think, talks a lot about what motorists
> might think and do from their legal ignorance of the rights of
> bicycles on roadways, compounded by their practical ignorance of how
> safe bicyclists ride.
>
> In a way, the defense most car drivers have when they cause an
> accident with a bicyclist on the road is very similar to the "gay
> panic" defense.  "It  was his fault!!  I didn't expect him to put the
> moves on me and [unspoken but very much a part of the defense] I'm
> counting on society's ignorance and bigotry to get me off!"
>
> We as cyclists need to be aware that is happening and refuse to fall
> into the trap of accepting that car drivers' idiocy and negligence is
> a permissible defense.  Although as an attorney, Richard, you will of
> course need to prepare for the driver to use that defense, regrettably.
>
> Best -
>
> Sachi Wilson
> Law Office of Sachi T Wilson
> sachiwilson at sbcglobal.net

Indeed, there is a "notion" out there that it is inherently unreasonable for
bicyclists and motorists to share the same roads.  To the extent that notion
is believed to be true, it is logical to think that it's not necessarily
negligent for a motorist to hit a bicyclist like this.  After all, if it's
unreasonable for bicyclists to be "out there", then one arguably must go
beyond "reasonable care" in order to avoid hitting them (so it's not
negligence).

But if it is reasonable for us to be "out there", then why do we "need" bike
lanes?  Logic dictates that we cannot have it both ways, and that if we try,
we're working against our own interests.  We cannot simultaneously argue
that it is reasonable for cyclists to share roads with motorists, and,
therefore, it is negligent of them to hit us,  while at the same time
arguing we "need" "our own space" in order to be able to share the roads
with reasonable safety.  But that's  the reality of the thinking about
cycling in our culture today, and makes your job defending cyclists in cases
like this much more difficult.

Good luck and thank you.

Serge

On 6/8/07, Richard Duquette <rduquete at 911law.com> wrote:
>
>  List mates                                   Confidential & Privileged
>
> Id like to get your perspective regarding a potential issue that involves
> a bicyclist that (for sake of discussion) ignored a detour & bike lane
> closed sign.
>
> The cyclist is alleged to have then ridden close to the right side of the
> road edge cement barrier (that was constructed for a quarter mile) in order
> to get to his destination on the late afternoon weekend.Taking the detour
> would have taken her about 3 miles out of her way.
>
> As luck would have it, a young man drove his car around the slight right
> bend in the road that was partially obscured by the cement and plywood
> barrier in the slow lane edge and side swiped the cyclist, causing injuries
> and ripping off the cars right side mirror at the same time.
>
> The defense is that the cyclist should have ridden out of his way several
> miles,even tho he has the right to the road as a cyclist, and avoided riding
> near a cement barrier that  partially hid him from oncoming traffic.
>
> I suspect the motorist should and could have driven in the fast lane and
> had better vision, and  the officer suspects the motorist was traveling too
> fast for the conditions...construction site and all with the barriers.
>
> Do you feel the cyclist is with out fault or would you  apportion
> responsibility in this case. If so, what are the percentages.??
>
> Thanks in advance for your opinions.
>
> Richard L. Duquette
> *Bicycle Injury Lawyer since 1983
> *Carlsbad, CA
> *760-730-0500
> www.911law.com*
>
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