Cycling Legalese: Hit And Run, Now What?

Cycling Legalese is our online cycling law column from everyday cyclist and Chicago based injury lawyer, Brendan Kevenides.

Hit and run collisions involving cyclists happen all too often. In this column Brendan shares some words about how to legally protect yourself both before and after a hit and run.

Q: While riding I was sideswiped by a car and they ran. My injuries were quite severe and I spent some time in the hospital. Is this a no win situation for me?

Brendan Kevenides, P.C.:In my experience, hit and run crashes involving drivers and cyclists happen with disturbing frequency. Generally, a driver will take off after causing a collision for three reasons: (1) Fear of consequences; (2) He/she lacks a moral compass; (3) He/she lacks auto insurance coverage. Very often all three factors are in play to compel a driver to flee a crash. Leaving the scene of a collision in which bodily injury or property damage results is a crime.

Unfortunately, a city cyclist should anticipate the possibility of being in a hit and run crash. However, there are steps he or she can take to protect themselves both before and after such an incident:

Buy insurance: In 49 states, drivers are required to carry motor vehicle insurance coverage. (New Hampshire is the outlier.) Useful and integrated into our culture though they may be, cars and trucks have the potential to cause enormous harm. For that reason, motor vehicle owners are required by law to have insurance to compensate anyone they may injure. Nevertheless, nationally one in seven drivers, over 14%, fail to carry the necessary coverage, according to the National Association of Insurance Commissioners.

Many auto policies provide uninsured and underinsured motorist coverage. These provisions of a policy provide important protection if you are injured by another driver who either has no insurance, or coverage that is insufficient to compensate you for your injuries. Generally, the amount of un/underinsured coverage mirrors the amount of the policy’s bodily injury coverage. A bicyclist’s own motor vehicle insurance may provide coverage if he or she is seriously injured by a motorist who either lacks insurance or who has insufficient coverage. If you are hit by a driver that flees the scene, your insurance provider will usually treat that as if you were hit by an uninsured driver and cover you ever though you were biking at the time of the crash. However, some insurance policies require that you notify your insurer very soon after a hit and run incident, often within 30 days, or you may run the risk of coverage being denied. A carless person may buy a non-owners auto insurance policy. These policies are offered by many big name insurance companies and tend to cost considerably less than a standard policy, generally about half the premium of a traditional auto owner’s policy. Importantly, they may protect the non-car owning bicyclist who is injured by an uninsured or underinsured driver.

Not all insurance policies are the same. Rates may vary greatly depending on location and the specific coverage purchased. Non-owners car insurance policies may differ materially from one to the other. Also, they may not automatically come with un/underinsured coverage. Make sure that you ask your insurance agent lots of questions, making sure you understand exactly when the policy you are buying will and will not cover you.

Press record: Technology has finally gotten to the point where is it relatively easy and inexpensive for a cyclist to ride with a small video camera secured to the front of their bike, or helmet. Riding with one of these cameras recording your ride can be a tremendous help if you are involved in a crash. A review of the video after the fact may uncover the identity of the vehicle and driver involved.

Just a few short years ago, it was impractical to ride with a video camera. Many models were too big and too heavy. Even if they were small and light they could not be attached and detached quickly and easily enough to be convenient for urban riding. In the city you you need to be able to lock it up or take it with you if you hope to keep it. Now though more bicyclists are riding with small quality cameras that are weather proof and which can be clipped on and off the bike as easily as a bike light. The increasingly ubiquitous GoPro cameras start at about $200. They are small, light, weather proof and have almost limitless mounting options. The Epic Carbine HD, for about $220, is another option. I personally own this camera and can attest to its small size, lightness and ability to attach and detach from the bike or helmet with ease. Should something happen, it is nice to have an electronic witness watching your back.

Even if you do not ride with a video camera on your bike, you should try to make use of your cell phone’s camera immediately after a crash. If you are able to do so, snap a photo of the offending vehicle and its license plate as soon as possible, in other words before the driver takes off. The act of taking a photo my even make the driver feel compelled to remain at the scene. They will be on notice that they will not likely get away with fleeing.

Look for the eye in the sky: I often gets calls from bicyclists who have been hit by motorist who have fled the scene and whom the cyclist could not identify. There are ways to find a hit and run suspect, however. It is important to go the the scene of the crash as soon as possible and look for local businesses who may have security video cameras in use. A little luck is usually involved, but sometimes a security camera will have captured a crash and the vehicle that caused it. If the video is of good enough quality to have read the vehicle’s license plate number then the rest is easy. The other step that I generally take is to send a Freedom of Information Act request to the local department of transportation and police department which may also have video cameras operating in the area. If the crash occurred at a busy intersection the possibility of one of these cameras having captured the crash is increased.

—Disclaimer—
Nothing contained in this column should be construed as legal advice. The information contained herein may or may not match your individual situation. Also, laws differ from place to place and tend to change over time. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of an attorney in the relevant jurisdiction. This column is meant to promote awareness of a general legal issue. As such, it is meant as entertainment. It does not create an attorney-client relationship between the author and the reader.
—Disclaimer—

Cycling Legalese Question Submission Form:

Cycling Legalese: Road Rage Retribution

Cycling Legalese is our online cycling law column from everyday cyclist and Chicago based injury lawyer, Brendan Kevenides.

Road rage attacks are a relatively rare but unfortunate reality of city riding. Brendan goes over why it may be best to not speculate on a motorist’s motives if you’ve been hit and concentrate on the facts of the collision.

Q: So many people seem to be angry behind the wheel. How can I go after a driver after I’ve been the victim of a “road rage” incident?

Brendan Kevenides, P.C.:In my hometown of Chicago bicyclists and motorists rarely use five fingers to waive at one another. Sad. The mutual animosity that exists between these two sets of travelers is strange really. After all, many of us are both motorists and bicyclists. Yet somehow we seem to forget our other selves while operating one mode of transportation or the other. I suppose it is because while traveling on congested city streets, whether on bike or in a car, we are trying to get somewhere as quickly and easily as possible while sharing a limited resource, usable street space.

Road rage incidents have the potential to turn out much worse for the bicyclist than for the driver. The motorist is, of course, wrapped in a cocoon of metal while the cyclist is not. A few years ago I represented a young bicyclist who was the victim of such an incident. He was riding his bike on the right side of the road in the city when a driver aggressively cut in front of him, nearly causing a collision. The bicyclist, pissed, rode after the vehicle, a red BMW, which eventually encountered slow moving traffic. As he rode by the car, the bicyclist rapped on the vehicle’s passenger window and waved hello with a single finger. That should have been it. However, the driver, now also pissed, sped forward at the bicycle and struck its back wheel causing the young man to fly forward, ass-over-teakettle. His injuries were not very severe, thanks to nothing but dumb luck. Later, he contacted me to represent him against the driver in a personal injury action, which, of course, I did.
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Cycling Legalese: Visible, Assertive, Alert and Predictable

Cycling Legalese is our online cycling law column from everyday cyclist and Chicago based injury lawyer, Brendan Kevenides.

Last column explained that drivers are responsible even if they say they didn’t see you. Even if a driver is found at fault, in civil court a cyclist’s injury claim may be reduced if it is found they contributed to the incident by not being visibile and riding predictably. This column may help you not get hit in the first place, and may help in civil litigation in case of an accident.

In the last edition of Cycling Legalese we considered the viability of the “unseeing eye” defense which drivers tend to raise in bicycle crash cases. Now we turn our attention to ways in which urban cyclists can increase their visibility, reducing their chances of being “unseen” in the first place. These guidelines will reduce the likelihood of being hit, and will aid your chances of a successful outcome should litigation arise from a crash. Juries in civil cases will be asked to consider not just the motorist’s negligence, but the injured bicyclist’s as well. In many states, even if the driver is found to have acted negligently, the injury victim’s compensation may be reduced by his or her own percentage of fault. If a jury finds that the cyclist was more than 50% at fault, then in some states compensation may be denied all together. To avoid injury, and a poor legal outcome, be Visible, Assertive, Alert and Predictable; VAAP, if you are into gibberishy acronyms.

Visible: Most state vehicle codes require bicyclists to ride with a white, front facing headlight and at least a rear reflector. Frankly, I have always found it surprising that you can buy a bicycle from a shop without a light. After all, head lights are not an option for car buyers. In any event, buy one. And while you are at it, buy a red light for the rear of your bike. Some states only require a reflector in the rear, but go a little nuts and treat yourself to a bit of rear end protection. Having reflective properties on your clothing and/or bicycle is also a good idea to increase visibility in poor lighting conditions.

Visibility is as important during the day as at night. Bright clothing will help you get noticed. Also, during a daytime rain or snow shower, do not hesitate to turn on your lights. It is smart to have them with you, with fresh batteries, at all times.

Assertive: You belong in the road. Act like it. Behaving like a shrinking violet while riding in traffic is no fun, and can be dangerous. Cyclists should, and are generally required, to ride in the right-most lane that leads to their destination. That does not mean that you must ride in the gutter. Riding too close to the edge of the road will likely make you less visible to drivers and will encourage them to attempt to pass too closely. Bicyclists should ride as far to the right as is practicable and safe, but no more. No one wants to be honked at, but at least if a driver is honking at you you know you are being noticed.

Being assertive applies not just to lane position, but to all aspects of urban riding. “If you, the cyclist, pause or hesitate, you are almost guaranteed that the motorist will take the right of way whether it is theirs or not. Know the rules of the road and follow them with confidence and conviction,” recommends the League of American Bicyclists.

Alert: Drivers are going to screw up. Expect it. For example, if you see movement inside of a vehicle parked along the curb, anticipate that the driver may open the door into you. Realize that in the rain, drivers cannot see very well and will have a harder time noticing you. Do not just watch traffic lights; watch the traffic. It is common for drivers to run an intersection through the dissipating remnants of a yellow light. Look before proceeding into an intersection, even a controlled one. It is important to consider the driver’s perspective while riding your bike. Be cynical. Hope for the best, assume the worst and act preemptively.

Predictable: Though I have placed it last, predictability is perhaps the most important aspect of safe cycling. Following the rules of the road — though some may seem hardly written with the bicyclist in mind — helps you communicate your intentions to drivers. Yes, sometimes salmoning (riding the wrong way) is convenient, but a driver will not anticipate a moving object coming from the wrong direction. Giving nary a pause at a stop sign is not something a driver will expect you to do, even if he or she sees you coming. At an intersection, drivers will be looking for traffic coming from cross streets, and slow moving pedestrians in crosswalks. They will not expect a fast moving object to rocket off of a sidewalk and into their path. Follow the rules, not just because they are the rules, but because doing so makes you more predictable. Drivers, generally, do not want to run into you. Make it easy for both of you to continue on your way without conflict.

—Disclaimer—
Nothing contained in this column should be construed as legal advice. The information contained herein may or may not match your individual situation. Also, laws differ from place to place and tend to change over time. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of an attorney in the relevant jurisdiction. This column is meant to promote awareness of a general legal issue. As such, it is meant as entertainment. It does not create an attorney-client relationship between the author and the reader.
—Disclaimer—

Cycling Legalese Question Submission Form:

Cycling Legalese: But The Cyclist Came Out Of Nowhere

Cycling Legalese is our online cycling law column from everyday cyclist and Chicago based injury lawyer, Brendan Kevenides.

It’s common to hear after a collision that the auto driver carefully looked before turning and a cyclist reportedly came out of nowhere. But is it a lawful defense?

Q: I’ve heard drivers claim that they often just can’t see cyclists. Is that really a defense a driver can raise following a crash?

Brendan Kevenides, P.C.:The most common “defense” in bicycle crash cases is no defense at all. Let me be blunt: I didn’t see Mr. or Ms. bicyclist, is not a defense. It is an indictment. Nevertheless, it is a so-called justification for causing a crash that I hear over and over in my law practice, the ol’ “unseeing eye” defense. It is often raised in intersection cases and it goes a little something like this: The motorist asserts that he or she entered the intersection while carefully looking in all directions before beginning to turn. No bicyclists were seen. As the motorist executes his or her turn, however, the bicyclist materialized, seemingly out of nowhere. The defense asserts that the collision itself notwithstanding, the motorist was careful, not negligent and, therefore, should not be held responsible for the bicyclist’s injuries. It was just one of those things…
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