At our offices, we handle a high volume of cycling crash cases. Typically, these involve motor vehicle vs. bike crashes but also, very often, involve claims against government entities for unsafe cycling conditions.
No matter the cycling case, it seems that one principle almost always rings true: the insurance company is going to blame your guy for something. If your client was in an intersection, they shouldn’t have been there. In a bike lane? They were going “too fast.” They will find something. It’s just going to happen. Even, sometimes, in crystal-clear liability cases.
Our clients often ask us why the insurance companies point the finger at them. My typical response is that it’s easy. Cyclists carry an unfair stigma as reckless, law-abandoning would-be motorists who bike between cars and nearly cause accidents by just sitting on their saddle. In my experience as both a cyclist and an advocate, it’s simply not true. However, it’s a pretty powerful narrative that insurance companies can easily pounce on, and it’s commonplace to do so.
Recently, we handled a cycling case for a client who was merely traveling straight in a bike lane (Class II bikeway) when a car made a sudden left into them. The car was trying to pull into a commercial center, and they simply weren’t watching where they were going. Simple, right? No complicating factors—not an intersection, client wasn’t speeding, no obstruction of view, etc. The police report, understandably, put the car at fault without any reference to comparative or secondary fault of cycling.
Despite being a pretty clear-cut liability case, the largest insurer in America responded that, “Your Bodily Injury and Property Damage are not payable because (Cyclist) is 75% at fault for failing to maintain proper lookout and failing to take evasive action.” Like with most baseless liability positions, the insurer eventually relented and paid more than what was originally demanded, but it took a hard push to get it done.
While this liability position may be an outlier, unsubstantiated liability positions in cycling cases are not. So, if you are going to handle cycling cases, you need to be prepared for nonsensical liability arguments. To prepare you for the same, below are a few of the most common circumstances that lead to a disputed-liability cycling case and how we often deal with them.
The Left-Turn T-Bone
As with the case above, the most common cycling case we deal with is the left-turn T-bone. The circumstances often differ, but it usually occurs when the car is jetting across opposing lanes on a left-turn yield signal. They are looking ahead for cars but often miss that cyclist traveling toward them in the bike lane or the young cyclist entering the crosswalk from the sidewalk (more on that below). Nevertheless, it’s usually obvious that the driver of the car wasn’t looking where they were going, yet the cyclist seems to always get a share of the fault.
Another common cause of the left-turn T-bone is when traffic going in the cyclist’s direction is stopped and a left-turning car is jetting across an open space created by stopped oncoming vehicles. In this situation, the cyclist is often just proceeding in the bike lane and the car turning fails to see them coming. The cyclist rarely sees the car jetting out until it is too late. They are unable to avoid the turning car and will frequently crash into the hood, rolling over onto the ground.
Regardless of the circumstances surrounding the crash, these accidents often cause serious injuries, since they can be tantamount to hitting a wall. So, a cyclist will be laid out on the ground when emergency response and the investigating officers arrive. And the first thing the at-fault driver will tell them, almost every time, is that “the cyclist was traveling too fast.” Doesn’t matter if the bike was traveling uphill, downhill, or on flat ground. The driver of the car didn’t see them, so they must have been traveling too fast. And most of the time, the investigating officer will buy it and either place the cyclist at fault or add the cyclist as an “Associated Factor.”
In another recent left-turn T-bone case, the investigating officer initially placed our client at fault for the entire incident, despite our client simply proceeding straight in the bike lane. In that crash, our client was traveling in a Class II bikeway (bike lane) on the right side of stop-and-go traffic approaching an unprotected intersection. As discussed above, the cars proceeding in our client’s direction had stopped and created a turning lane for the car in the left-turn lane, in the opposite direction, to proceed across their lanes. The turning car quickly proceeded across the lanes and our client struck that vehicle in the intersection. Our client was taken by ambulance to the hospital shortly before the officers responded.
After speaking at length with the adverse party and conducting a short interview with our lethargic client in the hospital, the investigating officer placed our client completely at fault based on a violation of California Vehicle Code § 21754 (unsafe passing on the right). The reporting officer also noted California Vehicle Code § 21801(b), which states, in pertinent part: “A driver having yielded… and having given signal…, may turn left or complete a U-turn, and the drivers of vehicles approaching the intersection or the entrance to the property or alley from the opposite direction shall yield right-of-way to the turning vehicle.” It was the investigating officer’s conclusion that the cyclist was improperly passing on the right and failed to yield to a left-turning car that had already started its turn prior to the bicycle entering the intersection.
How to Respond
In dealing with this scenario, it’s important to employ a little bit of common sense. In the example above, we knew our client was proceeding in a Class II bikeway, since the two vehicle lanes were stopped, by the adverse party’s own admission, and the bike lane was the only space to the right of those lanes. Something about the purported series of events leading up to the crash also seemed odd. The cyclist hit the vehicle approximately twenty-five (25) feet into the intersection and the car had to travel about the same distance before getting hit, so the idea that the car entered the intersection before the cyclist just didn’t make sense.
As with a lot of these bizarre liability positions, our advice to the client was to gather evidence (including pictures of the location at that time of day), bring it to the investigating officer, give the officer an accurate statement, and request that he revisit liability. In this case, it (mostly) worked, as the investigating officer changed the at-fault party to the car, though they still hit our client with an associated-factor tag for a purported violation of California Vehicle Code § 22350 (unsafe speed).
With regard to the speeding opinion, the investigating officer simply wouldn’t relent or consider any evidence. They were going to tag our client for something and, to us, this was the easiest assertion of fault to dispute. Our plan for responding was simple: provide proof that the client was not proceeding too fast (here it was approximately 12 mph).
Proving the speed a cyclist was traveling is typically easier than with a car since most cyclists have a black box readily at their disposal. That is, very few cyclists are riding around without a Garmin navigation computer on their bike (or wrist) and without an app like Strava recording their progress. These systems and apps can show how fast the cyclist was traveling, where they were coming from, when they were hit, and more. The information about the ride is downloadable and easy to understand. This evidence can be very powerful in disputing these BS defenses.
We utilized the evidence to show that our client was traveling safely down the road and that any comparative-fault arguments would be ineffective at best. In doing so, we obtained a very good settlement for our client without any apportionment for comparative fault.
The Right-Turn Intrusion
Another very common scenario for the bike v. auto case is the right-turn intrusion. This happens when the cyclist is just, again, minding their own business and proceeding straight in the bike or right lane of the road. The crash is commonly caused by two scenarios: 1) the car decides to take a sudden, often unplanned, right turn across the cyclist’s lane; or 2) the car is hurrying around the cyclist so that they don’t have to sit behind them as the cyclist approaches the intersection. In essence, the car is cutting the cyclist off, and it leads to the cyclist getting sideswiped or T-boning the vehicle, or sometimes even rear-ending the car.
Again, the cyclist is often left on the ground, dazed and confused as to what just happened. This often leads to the responding officer spending a considerable amount of time considering the car driver’s story prior to ever speaking to the cyclist. Regardless of the timing of the interviews, without an independent witness, this situation often leads the responding officer into determining it is a word-versus-word scenario and the opined cause of the accident is either split between the two or is decided to be undeterminable.
As with the left-turn T-bone, it is very common for the cyclist to get tagged with a violation of the vehicle code in this scenario. Most often, we see them assigned as the “at-fault party” or “associated factor” based on California Vehicle Code § 22350 (unsafe speed) or § 21754 (unsafe passing on the right).
As with the stories above, we have handled a number of these cases where our client is initially placed at fault, at least partially.
How to Respond
In responding to disputed-liability cycling cases, we first look for the obvious: an independent witness. Unlike the above left-turn T-bone, these cases tend to lend themselves more to witnesses staying around and helping the parties/officers. Whether it’s a vehicle traveling in the same direction, behind the parties, another cyclist following behind, or a witness walking down the sidewalk, we always ask during intake whether there were any witnesses. If a witness is identified, we will push to get their contact information as quickly as possible and get an early written statement from them. If the police report is still pending, we will send the same to the investigating officer in the hope of avoiding an adverse determination of cause.
If there are no independent witnesses, we approach liability similarly to what is noted above. We will look at the parties’ stories and balance them with basic common sense. We look at the following factors to help determine what really happened: speed of bike, speed of car, area of impact, point of impact on the vehicle, the type of roadway/lane/intersection that the cyclist was traveling on, and how the cyclist’s body moved post-impact (i.e., whether they hit the hood and where they landed in relation to both the car and the bike).
If common sense doesn’t define a clear liability determination, then we move to a biomechanical expert, preferably one who specializes in cycling accidents. We have experts that we use and love, and we try to get them involved early in our investigation to help guide our liability arguments.
We put all of this together, keeping it as simple as possible, and assert as clear a view of the circumstances surrounding liability as possible. Often, the best liability argument is the simplest, so we do our best to stick to that.
The Sidewalk-to-Driveway Conundrum
The final scenario we want to discuss is less common but a little trickier, and it usually involves someone (often a minor) riding a bike for leisure, as opposed to a more experienced cyclist. It’s the sidewalk-to-intersection (or more often, driveway) transition. This crash happens when a rider is cruising down the sidewalk, frequently against the direction of traffic, and a car is either pulling out of a commercial center or driveway. This crash also happens in intersections where the rider is descending to a crosswalk.
Nine times out of ten, this crash is caused by a driver not looking in both directions. The driver will look to their left to make sure no cars are coming but will neglect to look for the bicyclist coming down the sidewalk.
This scenario often becomes a very interesting and fluid one. In reviewing liability, it’s really important to note the rules that the city in which it occurred has related to, well, riding on the sidewalk. In California, there is no statewide law prohibiting operating a bicycle on a sidewalk. However, California Vehicle Code § 21206 allows local (county, city, etc.) governments to regulate operation of bicycles on sidewalks (pedestrian facilities).
In considering liability in this situation, it is also important to note that it only really becomes a question of liability when the bicycle rider is on the sidewalk. As a general rule, according to California Vehicle Code § 21650, a cyclist riding in a bikeway must ride in the same direction as traffic.
How to Respond
In responding to this situation, we typically point to the driver’s obvious lack of attention to those around them. We will note that the bike was (hopefully) traveling at a slow speed and that the driver really had the best and final opportunity to avoid the crash. Since California is a pure comparative-fault state, we will stack up arguments related to what the driver did wrong, accept that comparative negligence is a likely outcome, and work to paint the best picture of our client.
There is not really a fail-safe way to argue liability in this situation, but placing a significant majority of the comparative fault on the driver often leads to a very favorable outcome for our injured clients.
When it comes to advocating for injured cyclists and leisure bike riders, liability will almost always be a point of contention. Hopefully, this article has helped lay out what to expect and how to respond. However, the basic takeaways should be as follows: 1) it’s likely that your client will be placed, at least partially, at fault, so be prepared; and 2) common sense can take you far in arguing liability against the adverse party, so utilize the information provided by your client (and the technology they ride with) to point out why it’s obvious that the other guy is at fault.
About the Author
Steve Rosen is a cyclist and the founding attorney of Lawyers 4 Cyclists, a national network of independent attorneys whose practice is limited to representing injured riders. Admitted in California, Nevada, New Jersey, and Texas, he has spent more than 10 years on cases arising from bike-versus-auto collisions, doorings, hit-and-runs, and crashes caused by road conditions that should have been fixed. He started the network after watching too many riders get handed to general personal injury firms that didn’t know the vehicle code, couldn’t push back when an insurer blamed the cyclist by default, and treated a totaled bike as an afterthought. The network now connects injured riders with attorneys admitted in their own states.
Off the clock, he rides — and he founded Safe Bikeways, which collects rider reports of dangerous road conditions and pushes the agencies responsible to repair them. He speaks to clubs and advocacy groups about what to do in the first 48 hours after a crash, which is usually when cases are won or lost. He has recovered more than $40 million for injured cyclists and their families.
(Note: Past results do not guarantee or predict a similar outcome in any future case.)
