Bicycling from the Lawyer's Perspective: Anna Kepner

Editor's note: the following legal tips were provided by Anne Kepner of Needham Kepner & Fish, LLP.

1. What is the first thing a bicyclist should do if they are hit by a car?

RIDE SAFEThere are many precautions that cyclists can take before, during, and after a ride to protect themselves. Wearing protective gear is of the utmost importance: helmet, preferably with a rearview mirror, reflective gear, and a road I.D. can prevent injuries and/or assist those coming to the aid of a cyclist following a collision. If one rides solo, a road I.D. can be crucial for identification, assessing pre-existing conditions, and contacting the cyclist’s emergency contacts. Outfitting one’s bicycle with additional safety features such as reflective strips and appropriate lights are simple steps that can help to avoid accidents. Vehicle Code section 21201 lists the equipment required to operate a bicycle in California.Most cyclists appreciate that there is great risk when riding, particular when sharing the road with vehicles. If a cyclist is hit by a vehicle, addressing one’s health needs is of the utmost importance. If injured, it is important to call the police department to report the collision and if medical attention is needed, they will call for assistance.If possible, it is critical to collect the identifying information of the involved vehicle driver, including his/her automobile insurance information and driver’s license. Additionally, taking pictures of any visible damage to the vehicle is critical. Vehicles are often quickly repaired following accidents. Lack of lighting and claims of visual obstructions are raised as defenses to cases and evaluating the lighting conditions, status of vegetation growth, and location of surrounding parked cars at the moment of the collision can be near impossible to recreate and evaluate months or even years later. If there were any witnesses to the accident, it is important to collect their contact information – even if the police speak with them at the scene as witness identifying information is not always listed in the traffic collision reports.Save the bike in its damaged condition as it may later become valuable evidence if a case is litigated. In disputed liability cases, experts are often needed to reconstruct the accident to establish who was at fault for the collision. Inspecting the bicycle and the damage it sustained can be crucial to the expert’s evaluation and often proves the cyclist’s lack of negligence.

2. What are bicyclists' rights in regard to taking the lane?

SHARING THE ROADThe California Vehicle Code addresses the cyclist rights regarding taking the lane or sharing the road with vehicles.Where there is no bicycle lane, a cyclist should stay as far to the right in the roadway or as close as practicable to the right hand curb except in certain circumstances, according to Vehicle Code section 21202. Pursuant to Vehicle Code section 21208, where there is a bicycle lane, cyclists are to use the lane except in certain circumstances. The cyclist is permitted to take the lane when (1) overtaking and passing another bicycle, vehicle or pedestrian; (2) when preparing to make a left turn; (3) when reasonably necessary to leave the shoulder or bicycle lane to avoid debris or another hazard; or (4) when approaching a place where a right turn is authorized. If and when a cyclist is taking the lane or moving out of the bicycle lane or shoulder, the law prohibits him/her from doing so unless the movement can be made with reasonable safety and then only after the appropriate signal.The general rule is that the cyclist is to stay as far to the right as is reasonably safe.

3. What are some common issues that come up when you are representing a bicyclist?

After years of representing cyclists and trying some of these cases to juries, it is evident that most people evaluating injury cases brought by cyclists have an inherent bias against the cyclist. The common defenses (or attacks) raised are “the cyclist was going too fast,” “the cyclist was not wearing the appropriate protective gear,” “the cyclist could not be seen by the driver who was acting reasonably,” “the cyclist was distracted and not paying attention to the traffic conditions,” and so on.Most motorists have had a close call with a cyclist and are quick to see themselves in the vehicle driver’s position and thus are instinctively motivated to protect the driver, who could easily have been them. Given there are many more motorists on the road than cyclists, prospective jurors are more likely to empathize with the motorist, not the cyclist. These biases are real and a good plaintiff’s attorney anticipates the bias and works to collect evidence and present the injured cyclist’s case in a way that these, often unspoken, criticisms and negative assumptions, are answered and/or eliminated.Like in all types of cases, collecting the evidence, whether its physical evidence or witness testimony, is critical when representing bicyclists. Often retaining expert(s) to recreate the accident is necessary and their work is dependent on the evidence available. In some cases, evaluating the roadway condition(s) is important to determine if the roadway and surrounding areas design, construction or maintenance contributed to the accident. In California, a claim must be filed against a public entity within 6 months of an accident and so therefore acting promptly after a collision is important to protect one’s legal rights. If a person is injured because of a private party’s negligence, the injured party has two years from the date of the accident to file a lawsuit.One of the greatest joys in representing cyclists is the getting to know the cyclists. Cyclists, in general, tend to be very positive, healthy individuals who live life to the fullest. Unfortunately, cyclists are often severely injured given a cyclist is little competition to a vehicle that weighs, on average, 4,000 pounds. The injuries cyclists suffer often are life altering and therefore a very large component of a cyclist’s case is the general damages he/she has and will suffer. Articulating how the loss of cycling impacts one physically, mentally and socially is critical when advocating for an injured cyclist. The person(s) evaluating the claim, whether it be a defense attorney, insurance claims adjuster, or juror, are most likely not as active as the injured cyclist was and thus getting to know the client and relaying the pain and suffering experienced as a result of the collision and related injuries is critical.For many, the benefits of bicycle riding far outweigh the risks. But, the risks are real. Taking precautions before and during a ride can go a long way towards keeping oneself safe. If a cyclist is unfortunate enough to be injured in a collision, there are immediate steps that can be taken to protect one’s interests and rights. (Hiring an attorney who understands and has handled such cases is definitely an advantage.)