After a collision, many cyclists hit with complex, ‘archaic’ legal realities

Written by on May 20, 2014 in Buncombe, Community, Region, Top News Comments Off
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NC one of handful of states to often place automatic fault on the cyclist

bicycle-stock-image-featuredWhen Sheri Baker, a 37-year-old accountant at the Nantahala Outdoor Center, mounted her bicycle after sundown from her home on Rhudy Road to participate in a full moon ride in the River Arts District in Asheville last September, she thought she was prepared.

Baker said that, after clicking on her headlight and rear blinking light, she hopped on her bicycle and headed eastbound on Deaverview Road. But near the four-way intersection with Bear Creek Road, a four door sedan traveling from the opposite direction unexpectedly turned left into a driveway cutting her off.

Baker, who was wearing a helmet and traveling at roughly 15 mph, slammed into the side of the car, hit the windshield and slid across the hood of the car, landing on the pavement.

Minutes following Baker’s wreck, city police arrived, and an examination by emergency medical personnel determined that an ambulance ride wasn’t necessary. Baker said that, the following day, her entire body hurt including her neck. However, an examination by her personal physician diagnosed just a soft-tissue injury to her knee.

All thing considered, Baker got off easy.

While some bicycle crashes result in catastrophic injuries, most, like Baker’s, are relatively minor. Between 1997 and 2010 in North Carolina, there were 13,639 bicycle crashes reported that resulted in 328 fatalities.

Yet despite progress in expanding the city’s cycling infrastructure and a greater awareness of cyclists and bicycle safety, the uptick in the popularity of two wheels as a mode of transportation may lead to a rise in crashes too.

This week marks a variety of Strive Not To Drive events in Asheville. But a concern among some cycling advocates is that many riders may be in the dark regarding the nuances of the rules of the road that apply to bicycles, including a North Carolina negligence law that pins the fault of the majority of bike-car collisions on cyclists.

A lesson in law, learned the hard way

Once the shock of the collision wore off several days later, Baker picked up the Asheville Police Department’s crash report. The result brought her to tears: To her surprise, she was said to be at fault.

“At the time of the accident, I wasn’t worried about the financial impact of the accident. It just seemed so obvious to me that the driver was at fault,” said Baker, who, in addition to missing two days of work, incurred several hundred dollars worth of medical bills and the replacement cost of her totaled road bike.

According to the report, both the driver of the car and a witness did not see Baker’s headlamp. The investigation also reported that she was not wearing reflective clothing. Though Baker insists that she was riding with the headlight on, she can’t prove it since, she believes, the light was shut off by the impact.

According to North Carolina law, since the police report found Baker shared some of the responsibility for her injuries, she is barred from recovering any compensation.

While Baker alleged that the driver did not use a turn signal, a follow-up investigation by the driver’s accident insurance company also determined that “damages occurred” because Baker “failed to maintain a proper lookout and properly equip and/or activate a front lamp visible from 300 feet and a rear reflector that is visible from a distance of 200 feet when riding your bicycle at night.”

Jones Byrd, a trial attorney with the Van Winkle Law Firm who takes on cycling crashes and is a cyclist himself, said that the rules of the road applying to cars apply to bicycles, too.

A relatively rare legal precedent only applied in a handful of states and the District of Columbia — the doctrine of contributory negligence that some call the “one percent rule” — often places the fault of a collision on cyclists. According to Byrd, the contributory negligence doctrine says that if the injured person “is to any degree negligent in their harm, then they get zero.” More common in the United States, Byrd said, is the application of comparative negligence rules, which puts a share the responsibility for an accident on both parties.

For Baker, the fact that her light may have been off makes her negligent — legally speaking.

“When I am talking with any client that has been injured, they can’t believe (the doctrine of contributory negligence) is true,” said Byrd, who has lobbied state legislature to change the precedent. “It is archaic and horribly unfair.”

While soreness in Baker’s knee has kept her from cycling, she’s happy the mishap wasn’t worse. She can walk, the financial impact was relatively minor and there were no physical scars left from the collision.

Yet, the impact of the accident has taken an emotional toll on Baker.

“Physically, I got off easy, and I know how bad it could have been, but I feel like I’ve been attacked,” she said. “It’s a really awful feeling — to be hit and then be in the position of fighting. The whole time I was legal, yet I’m the one (said to be) in the wrong.”

Is going to court worth it?

While Baker isn’t convinced that the police and insurance investigation was fair, she chose not to hire a lawyer to take her case. She has since given up her attempt to alter the police report or the insurance company’s decision.

In fact, many riders in the aftermath of a crash find themselves in the same situation — the feeling of being treated unjustly despite not riding carelessly or recklessly, but yet not sure if fighting a legal battle is worth the cost, time, or stress. Especially, when they aren’t so sure they can win.

Still, an injured cyclists may still have a case in court.

“All cases have different components — each is valued differently,” Byrd said. “I think folks are looking for a black-and-white answer if a case is worth handling, but it’s difficult to say until a lawyer hears what happened.”

Byrd recommends going to an attorney as soon as possible to evaluate your case and to keep every shred of evidence. Byrd said that, in the heat of the moment following an accident, a cyclists may not have the frame of mind to think about the nuances of a police report or the details of the accident.

Ann Groninger, a Charlotte attorney who often represents victims of cycling crashes, suggests cyclists prepare for the worst and protect themselves financially by having enough uninsured motorist and underinsured motorist (UM/UIM) coverage on personal automobile insurance policies.

According to Groninger, for an injured cyclist to make a claim, the law requires proof that the motor vehicle driver is responsible. North Carolina requires drivers have a minimum of $30,000 UM/UIM coverage. In serious accidents, that amount of coverage may come far short of the actual expenses of a life altered by a debilitating accident.

But determining who is at fault can be a tricky matter.

In Baker’s case, she said that the officer was condescending and “the spirit in the air was that it was my fault,” she said. “He did not seem genuinely interested.”

Byrd says that law enforcement is limited by “the facts that are presented to them at the scene and by the witnesses.”

Yet, he added, “there is a misconception by people who don’t ride — which is a significant portion of jurors and law enforcement — that bikes are just as stable and go just as fast as a car. Often, they don’t can’t understand why they ride the way they do.”

Don Kostelec, a transportation planning consultant in Asheville that has been analyzing pedestrian and cycling crash data for the 25 largest cities in North Carolina, said that there is a “pile up of biases that are built into the system that keep us from looking at the motorist and the victim equally.”

According to data from 1997 to 2010 from the N.C. Department of Transportation, of the 1,207 disabling cycling accidents statewide, in 53.9 percent of the crashes, a cyclist was found to be at fault. In 15.9 percent of the cases, the motorist was found to be at fault.

“I find it hard to believe that is the reality,” Kostelec said.

Yet, even Baker — an experienced cyclist who moved from Boone four years ago — learned some lessons. She said she will wear more reflective clothing and won’t trust drivers to restrain from making abrupt maneuvers.

Race, economics at play in crashes

But not all cyclists have Baker’s experience or knowledge. Despite Asheville’s image of an up-and-coming urban cycling mecca, not all bike riders in Asheville are informed bike commuters or experienced riders.

Kostelec says that cycling safety is also a racial and socio-economic issue. In fact, recent studies have supported the conclusion that pedestrians and cyclists are at greater risk of an accident in poorer neighborhoods. Kostelec also authored a study, “Examining Bicyclist and Pedestrian Crashes Related to Race in NC.” [PDF]

Of the 210 bike crashes reported in the city between 1997 and 2010, 22.4 percent of the victims were African American, where 13.4 percent of the overall population is African American. Among those accidents, 41 crashes involved a cyclist under 15 years old and 43.9 percent were African-American.

One reason that African American’s may be more vulnerable to cycling accidents, Kostelec said, is that some traditionally African-American communities in Asheville are more likely to have been divided by large road or highway projects — such as in the Burton Street community in West Asheville, where portions of the neighborhood were divided by the construction of I-240 and Patton Avenue in the 1960s.

Data analysis and graphic courtesy of Don XXX. Click to see full-size image.

Data analysis and graphic courtesy of Don Kostelec. Click to see full-size image.

Data analysis and graphic courtesy of Don Kostelec. Click to view full-size image.

Data analysis and graphic courtesy of Don Kostelec. Click to view full-size image.

“I think we have to go out and address vulnerable users from all perspectives — engineering, education, enforcement, encouragement — to get people to think about how we are attacking pedestrian and cycling safety,” he said.

While cars and bicycles may be treated the same by the rules of the road, Mike Sule, the founder of Asheville on Bikes, agreed with Kostelec that the current transportation system is geared towards motorists.

“I think we’ve put the machine before the person,” Sule said. “It’s culturally acceptable to drive 10 miles over the speed limit or to have a snack while driving. That has to change.”

As for Baker, she hasn’t been on a bicycle since the accident, but hopes to return to the saddle soon.

“This will affect me for the rest of my life,” she said, “but I’m ready to move on, learn a lesson, and try to be an advocate.”

Corrections: This story has been updated to reflect both where Baker was traveling during the collision and from where she most recently moved.

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About the Author

Jack Igelman

Jack Igelman is a contributing reporter with Carolina Public Press. Contact him at jack@igelman.com.

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