Under
California law a bicycle is treated as the equivalent of a vehicle, which means bicyclists must follow the same rules of the road as cars, and that other vehicles must show the same degree of respect to bicyclists as they do cars. |
Your Rights
Bicyclists
have the same legal rights and legal responsibilities as motorized vehicles while
riding on public streets and highways. CVC Section 21200(a). If a truck, car,
motorcycle or pedestrian violates your rights and causes you injury while you
are riding your bike, you have the right to make a claim or lawsuit for monetary
compensation for your injuries. Your damages may includepast and future expenses
for hospital and medical treatment, wage loss, loss of future earnings capacity,
physical pain, mental suffering, loss of enjoyment of life and cosmetic disigurement.
In most cases the purpose for which you were riding your bike is
irrelevant. My clients have obtained compensation for injuries incurred while
riding their bike for pleasure,fitness, health, recreation, race training or
even for purposes of work.
What rights do Bicyclists have in General?
They are entitled to ride on public roads and bike lanes that are in reasonably safe condition for their use with regards to quality of the pavement, the presence of cautionary warnings of rough road conditions, the erection of traffic signals or signs at particularly dangerous intersections and the absence of preventable hazards such as road debris, chemical spills, deep potholes or washboard surfaces created by tree root encroachment. With regard to the roads and bike lanes they own or control, every town, city and county has the duty to inspect, maintain and repair those roads and bike lanes to keep them in reasonably safe condition for cycling.
Bicyclists are entitled to ride free from harm caused by the negligence of trucks, cars, motorcycles and pedestrians who share the road with them.
Under California law a bicycle is treated as the equivalent of a vehicle, which means bicyclists must follow the same rules of the road as cars, and that other vehicles must show the same degree of respect to bicyclists as they do cars. It is illegal for a car driver to fail to the yield the right of way to an oncoming bicyclist before making a left hand turn. It is illegal for the driver of a car to pass a bicyclist on the left and then come to a sudden stop to access a parking space or turn right across his oncoming bike. It is also illegal for the operator of a parked car to fling his driver’s door wide open into the “door zone” without first looking in his side view mirror for oncoming cyclists. Scroll down to the botton of this section for a description of the bicyclist's right to compensation for injuries and property damage to his bicycle caused by the negligence of another.
Bicyclists are also entitled to reasonably safe bikes, components, equipment and accessories when they purchase them new from a bike shop, catalogue or other commercial supplier.
Virtually any part of a bicycle can cause an injury if it is defective and fails to perform consistently with reasonable consumer expectations or with applicable standards imposed by federal and state consumer protection laws and regulations. If it is not designed or made well or if it is not properly inspected and tested before leaving the factory, a part can break suddenly and cause a steering crisis. This includes handlebars, forks, seatposts, pedals and other parts. Helmets have been found defective for not providing adequate protection of the area around the ear, where the thin temporal bone of the skull can be fractured by contact injury.
If you are injured while riding a bicycle, you should make a police report before help arrives if at all possible, but if not, then right after you receive emergency treatment.
Your rights are not self-enforcing. To protect your legal rights, you should always get a police report when injured by someone else's negligence. A police report will document the date, time and location of the incident; the names, addresses and phone numbers of the responsible parties and witnesses; the mechanism of injury; the presence of physical evidence such as property damage to the vehicles, roadway debris or skidmarks; and the presence of dangerous conditions on the roadway that may be fixed or disappear long before you decide to hire a lawyer. A police report will also document all factors that may have contributed to the crash such as weather conditions, visibility and the physical condition of the parties. A dishonest car driver will claim he could not see you coming due to glare from the sun or obstruction of view, even though glare was absent or minimal and even though he had a clear, unobstructed view. A dishonest driver will claim he was unimpaired even though he was very fatigued and nodding off from lack of sleep, alcohol consumption or use of sedating medications. Police investigation right after the crash will nip these fabrications in the bud.
What happens if the Police Report Goes Against Me?
The police report is not admissible as evidence in court, nor may the police officer testify in court as to his opinion or conclusion as to who was at fault. The purpose of police reports is to alert the DMV to which drivers have been in crashes and whether they contributed to the crash by violating safe driving laws; to gather data for public agencies to analyze for patterns that may promote accident prevention and to assist insurance companies in processing accident claims. Police reports are written by human beings who may be affected by poor training, bias, limited opportunity to observe, time pressure and so forth. Police reports can contain mistakes of fact as to major and/or minor matters. From many years of law practice I know that when a police report goes against my client, the other driver's insurance company will say "we have to stick with the report," but when the report goes against their insured, the same company will say "the report is wrong." Look at the police report as a recitation of information about the incident gathered by one or more police officers. The information may or may not be comprehensive and may or may not be correct. The conclusions drawn on the basis of the information gathered are subject to debate. They are not conclusive or decisive in how your case turns out. Obviously its nice to have a police report in your favor, and this tends to make handling your claim easier, but cases in which the report goes against you can be won.
Preserve all physical evidence of the crash for your case.
California has a fault based legal system which measures and compares the fault of each party for causing a crash. It is common for the parties to a car/bike crash to give conflicting accounts of how the crash occurred and who caused it. Frequently the best evidence of how the crash occurred, and who caused it, is the post-incident condition of the car, the bike, the cyclist and his helmet. Traffic collision reconstructionists can scientifically reconstruct a car/bike crash only if they have this evidence. Hence, any cyclist who was injured in a crash caused by someone else's negligence, should preserve his bike and accessories, bike helmet and bike clothes without change. He should alos make these available to his attorney before the insurance company for the other side gets hold of them, as the insurer's representative can destroy, modify, alter or lose these items to the irreversible deteriment of the injured cyclist's case. Preservation of physical evidence also means photographing all scrapes, cuts, bumps and bruises on your body, which are tell tale evidence of location, type and severity of impact.
What defenses may be asserted against my claim?
California has a fault based legal system which measures and compares the fault of each party for causing a crash. The defendant can assert you were fully or partially to blame for the collision due to such things as not signalling a turn, riding at an excessive and unsafe speed for the circumstances, not having a red flasher mounted to the rear of your bike at night, failing to maintain your brakes, not paying carefull attention to the roadway and taking precautions to avoid hazards in plain sight, etc. Based on blood alcohol data from the Emergency Room, a defendant could claim the bicyclist was intoxicated. An employer could claim the employee was using his bike on a personal errand and not for legitimate purposes of work when injured. A landowner could claim recreational immunity exists because he did not expressly invite the bicyclist onto his property and he did not willfully or maliciously fail to guard bicyclists from a known danger on his property. If the injury occurred during a race, the defendant could claim the bicyclist assumed the risk of injury. There are many defenses, but all of them require proof and the burden of proof is on the party asserting the defense. The injured bicyclist is permitted to establish facts showing the defense does not apply to him.
Which cases justify attorney involvement?
Sometimes bike injuries are nobody's fault or the cyclist's own fault. Even if they are caused by someone else’s careless acts or omissions, the harm suffered may be slight and temporary. Hiring a lawyer and filing a claim or lawsuit should only be undertaken when there is good reason to believe your injury was caused by someone else’s negligence, the harm is serious and the damaging effects of injury are likely to be prolonged or permanent. Obviously death and , injuries such as fractures of the skull or facial bones; brain damage; spinal cord damage; eye damage with loss of vision; broken arms or legs; fractured ribs with a collapse of a lung; tearing of a ligament or tendon causing disability and requiring surgical repair; a ruptured or lacerated spleen, liver or kidney; and the like, would qualify. Another less obvious example would be PTSD (post-traumatic stress disorder) from observing a fellow cyclist suffer death or serious injury on a ride.
Any bicyclist how has suffered a significant injury that he has reason to believe was caused, or substantially contributed to, by the negligence of another, ought to contact an attorney as soon as possible.
Time is of the essence to avoid the running of the statute of limitations, to avoid the loss of critical physical evidence or eyewitness testimony and to avoid potentially damaging interactions with insurance company personnel without the advice and assistance of your own lawyer. If your injury occurred within the State of California, please contact us to discuss your rights and explore the possibility of having Harvey A. Hyman represent you.
Recoverable damages for the injured cyclist's bodily injuries
Under California law a bicyclist who sustains bodily injuries due to the negligence of another is entitled to sue the responsible party in court and obtain a judgment for money damages that will reasonably compensate him for all damages caused as a consequence of those injuries. This includes "general damages" for pain, suffering, anguish, cosmetic deformity, reduced quality of life and loss of enjoyment of life. It includes "economic damages" for past and future hospital, medical and therapy expenses for diagnosis and treatment of the injuries. It also includes "economic damages" for past and future loss of wages and benefits from employment, past and future loss of income from self-employment or past and future diminution of earning capacity, whichever is applicable. If the injured cyclist was married at the time the negligent act or omission caused harm, his or her spouse may also assert a claim for loss of consortium, which entitles the non-injured spouse to recover damages for the loss of the injured spouse's love, companionship, society, comfort, affection, sexual relations and household services. It is not required the injured cyclist file suit. Indeed, many times claims can be settled out of court without even filing a Complaint to initiate a lawsuit. If settlement cannot be reached before expiration of the statute of limitations (2 years from date of injury for all injuries occuring on or after 1/1/03) then it is imperative to file a lawsuit in order to preserve your right to recover money damages.
Recoverable damages for the death of a bicyclist
When a bicyclist is killed due to the negligence of another his "heirs" (as listed in Code of Civil Procedure 377.60) are entitled to damages for their personal losses on account of his "wrongful death." These include damages for funeral and burial expenses and damages for their loss of his love, companionship, society, comfort, friendship, affection and household services. If the "heirs" were financially dependent on the deceased cyclist, they can also recover damages for the loss of financial support he provided before his death. If the cyclist died with a will, then the executor of his estate may also bring a "survival action" pursuant to C.C.P Section 377.20 to recover the hospital and medical expenses he incurred between the time of injury and time of death, expenses that would otherwise deplete the estate. If the person died without a will then his "successors in interest" may bring the survival action. If, in the rare event the person who killed the cyclist did so intentionally and maliciously, his estate may seek puntive damages against the defendant in the survival action.
Recoverable damages for damage to your bicycle
The law provides the owner of the damaged bicycle is entitled to compensation for the cost of repairs or the actual cash value of the bicycle at the time of th loss, whichever is less. A good, experienced bike mechanic is well qualified to assess cost of repairs, and this would certainly include the person who has serviced or maintained your bike at your favorite bike shop. If the cost of repairs exceeds the actual cash value of the bicycle, the bike is declared a total loss. If the bike was in excellent condition the actual cash value is equivalent to the purchase price minus standard depreciation associated with the passage of time. If the bike was already damaged then the value will be further lowered to reflect this. Actual cash value is essentially the same thing as the bike's actual market value one second before the crash, which can be ascertained from shops that sell used bikes, E-Bay and other websites that sell used bikes. One mistake some cyclists make is to assume the insurance company owes them whatever they spend on a new replacement bike. Someone whose bike cost $1,200 new and whose bike was destroyed in a collision when it was 3 years old is not going to receive a check for $5,000 if he choses to replace it with the newest model Trek that Lance Armstrong just used in the Tour de France. If your bike is declared a total loss, you can ask to salvage undamaged parts that you would like to keep. This could include such things as the seat and pedals. When they declare a bike a total loss, and pay the cyclist for it, responsible insurers destroy the fork and frame, to prevent them from being released into the community where someone could get badly hurt using that equipment. They do this because they cannot know if the frame or fork has suffered invisible hairline cracks, and do not wish to place cyclists or their company at risk.