Bicycling from the Lawyer's Perspective: Gary Brustin

Editor's note: The following legal tips have been provided by (SVBC Board Member) Gary Brustin of BicycleLawyer.com.THE MOST COMMON CYCLING COLLISION SCENARIOS IN ORDER OF OCCURRENCE

• Left turning motorist (left hook)
• Right turning motorist (right hook)
• Sideswipe (three foot passing law violation)
• Opening door (doored)
• Dog attack (leash law violation)
• Rear end collision (texting or DUI)
• Road rage (call 911, never confront an angry motorist)

WHAT TO DO IF YOU ARE HIT BY A CAR

• First and foremost, obtain medical care. If the paramedics recommend transport to the emergency room, then follow their advice.
• Second, cooperate with the investigating officers. Tell them what you know and recall. Do not speculate on the facts. If you don’t recall or your memory is fuzzy, then ask the officer to call you later after you have obtained emergency medical care.
• Third, preserve your evidence. Do not alter your bicycle and accessories. The damage to your personal property helps explain the dynamics of the collision. For example, a left turning driver who cuts in front you may try to blame you for riding too fast. Engineering experts can determine the speed of your bicycle at impact based on the amount of damage to the front wheel, fork, and frame.
• Fourth, maintain any digital camera footage along with the data from your GPS.

Finally, don’t contact the defendant’s insurance company. Instead, call an attorney who specializes in bike cases immediately if you think your rights were violated. Your attorney needs to collect and preserve evidence as soon as possible. He or she should obtain witness statements, photos of the property damage, the police report, scene photos, and photos of your injuries.WHERE TO RIDE ON A ROADWAY PURSUANT TO CALIFORNIA VEHICLE CODE SECTION 21202.Cyclists who are riding slower than the normal speed of traffic flowing in the same direction must ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations:

• When overtaking and passing another bicycle or vehicle proceeding in the same direction.
• When preparing for a left turn at an intersection or into a private road or driveway.
• When reasonably necessary to avoid conditions including but not limited to, fixed or moving objects, vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes that make it unsafe to continue along the right-hand curb or edge of the roadway. (A substandard width lane is a lane that is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.)
• When approaching a place where a right turn is authorized. For example, when approaching a “right turn only lane.”
• When riding on a one way roadway, a cyclist may also ride as near the left hand curb or edge of that roadway as practicable.

The rules are basically the same when there is a painted bicycle lane on the road. The only difference is the obligation to ride in the bike lane itself, instead of as close as practicable to the right hand side of the road.Although the above summary is fairly clear about a cyclist’s lane placement, I’m always asked, “When can we take the vehicle lane and just keep riding?” The short answer is, when you’re riding as fast as the flow of traffic. On the other hand, always exercise common sense and keep yourself out of harm’s way.THE MOTORIST’S POINT OF VIEW (OR LACK THEREOF)I think we can learn a lot from the statements I obtain from drivers after an incident:

• Without a doubt, the most common excuse is “I never saw the cyclist before impact.”
• The next excuse is “I never heard a warning from the rider.” Although I can assure you we always make a very loud verbal warning about three seconds prior to impact. Unfortunately, everybody drives with their windows up and usually don’t hear us anyway.
• Drivers also like to say it’s our fault because we were riding too fast. They just don’t realize we are going faster than a five mile per hour jaunt around the neighborhood.
• Even if they see us, hear us, and realize we are riding faster than five miles per hour, their excuse is “What are we doing on a regular roadway? Aren’t we supposed to limit our riding to bike lanes, bike paths, or sidewalks?”

So the bottom line is, we are invisible, silent, fast moving objects that really don’t belong on the road (from the average motorist point of view).None of these excuses constitute a legal defense. But once again, we should learn from this and exercise common sense. Although not legally required, I recommend daytime running lights, and lime green jerseys. Studies show a significant reduction in cycling accidents if these precautions are taken.