Dr. Andy Rosser's Cycling Spin: January 2010

I'm happy to post an article written by Carter Hick, one of our cycling team members who is also an attorney in Olympia. For those of us who spend a great deal of time on two wheels in the community, please take the time to consider Mr. Hick's insight on a recent case of a Portland, OR cyclist who was injured in an accident with a motorist. (Originally posted in the Capital Bicycle Club's January Newsletter.)

A fellow cyclist recently shared with me an article about a woman in Portland, Oregon, who was riding her bike when she was suddenly hit by a vehicle.

The Basic Facts: A woman was commuting on her bicycle in a designated bike lane. As she traveled in the bike lane, she approached an intersection. As is common with most bike lanes, the physical bike lane disappeared at the start of intersection and then reappeared on the other side. The cyclist proceeded down the road, entered the intersection, and was subsequently hit by a car whose driver admitted to making an abrupt, last-second, right-hand turn. The point of impact occurred in the intersection where there is a gap between the physical bike lanes. The cyclist was injured and the driver was cited for "failure to yield to a rider on a bicycle lane."

The ticket was ultimately dismissed by a Multnomah County traffic court judge, who found that the facts of the incident did not fit within the plain language of the statute. If the 'spirit of the law is at odds with the plain language of a statute, it is within the exclusive province of the legislature to fix the problem,' said the judge. In other words, the judge threw out the traffic citation because the facts of the incident did not fit within the plain language of the statute– the cy-clist was not in a physical bike lane at the point of impact. Perhaps if the driver had been cited under a different law, the traffic court outcome may have been different.

The Portland case provides an opportunity to discuss some safety concerns, as well as potential legal consequences for both cyclists and drivers involved in similar situations. Certainly there are many intersections in Thurston County where the designated bike lane disappears at the start of an intersection and reappears on the other side. A good local example is where the westbound lane on State Street crosses through the Plum Street intersection.

Let‘s examine what might have happened if this collision had occurred in Washington. There are two possible legal actions against a driver that causes a collision like the one in the Portland case.
First, there is traffic court, where most of us would like to see the motorist held accountable. An action in traffic court must first begin with a law enforcement officer issuing a traffic infraction. In Washington, RCW 46.61.525, Negligent Driving in the Second Degree, might have been the appropriate charge for the driver. That statute states that a person is "guilty of negligent driving in the second degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property. "Negligent" is defined by the statute as, "failure to exercise ordinary care, and [involves] the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances." RCW 46.61.525(2)

The question before the traffic court judge in Washington would then be: did the driver exercise ordinary care under the circumstances? The article about the Portland case did not provide enough facts to say for certain whether or not the driver in that case was negligent. However, given the fact that the driver in the Portland case did admit to making a last-second, right-hand turn, such behavior might well be construed as negligent under Washington law. The maximum pen-alty for negligent driving in the second degree is $503.00.

But wouldn‘t we also like to see the cyclist compensated for her medical bills, lost wages, property damage, and pain and suffering? Well, that brings us to the second legal option available to the cyclist – a civil claim against the driver for negligence. The ability to bring a civil action for negligence is not dependent on the outcome of any traffic ticket. Furthermore, the purpose of the civil claim is to compensate the victim for the actual costs of their medical bills, lost wages and property damage. The civil claim is also meant to compensate the victim for her pain and suffering. In the end, a civil action provides potential remedies to the victim that are just not available in traffic court.

Nonetheless, this story provides a few good lessons:

1. Cyclists need to pay particular attention to traffic when approaching and riding through intersections, and should always ride defensively and anticipate potential dangerous scenarios. For example, you should always assume that the car in front of you will turn right at the intersection, thereby cutting off your lane of travel, regardless of whether
or not they have their turn signal activated.

2. When in doubt, take the lane, all of it, so that the driver behind you is totally clear on where you stand. This
technique is appropriate and safe to use when approaching and riding through intersections. As you approach the intersection (where the physical bike lane will disappear), look behind you, and, if safe, take the lane" and keep it until you pass through the intersection and can merge back into the bike lane. This method makes it less likely that a car will sneak by you at the intersection and subsequently cut you off by turning right.

3. It is reasonable to assume that people, including some law enforcement officers, don‘t fully understand the rights and duties of cyclists or how the law applies to cyclists. In the Portland case, the officers did not blame the cyclist
and did issue a citation to the driver, which is a good thing. However, the Portland case underscores the reality that we still have a long way to go before everyone is educated on the law as it applies to cyclists on the road. Just because the
victim in the Portland case was on a bike does not mean the officer should focus on citing the driver for violating a statute that uses the word/phrase "bike" or "bike lane" because sometimes there are non-bike related statutes that might better
reflect the facts of a case.

4. Finally, everyone should remember that the cyclist in the Portland case will still have a civil claim against the driver for negligence regardless of the outcome of the traffic ticket. If you find yourself in such an unfortunate situation,
you should contact a personal injury attorney right away. Most personal injury attorneys will provide an initial consultation at no charge.

Sometimes preparing for the worst is the safest thing a cyclist can do. A cyclist should always anticipate potentially dangerous scenarios and should always take the appropriate defensive measures to ensure safety. Riding defensively can work to save a cyclist from what otherwise might be a serious headache – literally.

Carter Hick is an attorney with the Olympia law firm of Connolly, Tacon and Meserve. A long-time CBC member, he confines his practice to personal injury law.

**Important Notice: The information provided is solely for the general interest of the readers. This information should not be relied
upon or interpreted as legal advice. No attorney-client relationship with the author has been established. Readers of this column
should not act upon any information contained in it without first seeking the advice of legal counsel.