Urban Velo

Cycling Legalese: But The Cyclist Came Out Of Nowhere

bkevinidesCycling 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…

Several years ago I represented the family of a man who was hit and killed by a motorist in a small town in central Illinois. At the time of the collision, the man was riding his bicycle slowly and carefully across an intersection with the light in his favor. He was 80 years old, and in excellent health. The bike was of the cruiser variety, was bright orange in color and had a big orange basket on the front. He was legally riding within a crosswalk in the middle of the day. (Doing so may not be legal everywhere, but it was in his town.) The driver that struck him was making a left turn and said that she did not see him until, tragically, the man’s head shattered her windshield. He died a few hours later. This bicyclist could not have made himself much more visible to drivers had he worn antlers on his head and a flashing sign that said, “Don’t Hit Me!” The driver, whom we sued, testified in her deposition that she felt that her minivan’s internal roof support beam obscured her vision of the cyclist. “I didn’t see him,” she sobbed. I am sure that she indeed felt horrible about striking the man. There was no allegation or suggestion that she did so purposefully. But in a civil lawsuit alleging negligence, intent is irrelevant. If she could not see adequately in the direction of her turn she should have slowed down, stopped, craned her neck or have done whatever else it took to proceed with full view of what was in her vehicle’s path. To be negligent is to fail to act with due regard for the safety of others and is very much dependent on the circumstances. If it is snowing, slow down. If your vision is obscured for any reason, be extra vigilant.

Long ago, courts in my home state of Illinois recognized the importance of claiming to have looked but not seen. In 1965, the Appellate Court of Illinois, stated, “It is well settled that one may not look with an unseeing eye and be absolved of the charge of negligence by asserting that he maintained a continuous lookout, yet failed to see that which he clearly should have seen.” Payne v. Kingsley, 59 Ill.App.2d 245 (2nd Dist. 1965)

Often, in my experience, the reason offered by the motorist for having not seen the bicyclist is no justification. Traffic was blocking my vision. The sun was in my eyes. My van’s support beam obscured my vision. Lame, and of no legal consequence. To state what should be obvious, drivers must be able to see where they are going. They must be able to visualize all potential areas from which bikes, cars, pedestrians, motorcycles, etc. may emerge. If they cannot, then they may not proceed.

In a upcoming addition of this column we will examine ways for bicyclists to increase their visibility on the road in order to decrease the chances a driver will ever claim “I didn’t see him/her.”

—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—

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About Brendan Kevenides, P.C.

Brendan Kevenides is an everyday city cyclist and licensed attorney. His Chicago law practice is dedicated to representing cyclists injured by the negligence of drivers, government officials and equipment manufacturers. He is also the creator and author of The Chicago Bicycle Advocate, a popular blog about bicycling and the law. He is active with bicycle advocacy organizations, and is a Certified Bicycle Instructor by the League of American Bicyclists. Check out www.mybikeadvocate.com

View all posts by Brendan Kevenides, P.C. →

5 Comments

  1. George HessMarch 19, 2013 at 8:42 pm

    Dear Mr. Kevenides,

    I read an interesting article in LondonCyclist just over a year ago about a physiological phenomenon of vision called “saccades” and “saccadic masking.” The point of the article was that our eyes scan a scene by jumping from point to point (saccades) and do not see things during those jumps. Further, our brain fills in the missing bits with what we _expect_ to be there.

    I haven’t researched the phenomenon in depth, but I believe I have experienced it – that moment when you recheck for traffic in a particular direction just before moving and think “Wow, where did that come from? How could I have missed that when I first looked?”

    I don’t know if you’ve run into this in your practice or had the opportunity to dig into it – if you have, it would be great to hear what you’ve discovered.

    Mind you, I am NOT offering this as an excuse for motorists who hit cyclists but rather a potential explanation of how this can happen. And with knowledge of that potential explanation, one can take actions to avoid catastrophic consequences – for example, that “recheck” I mentioned is an important part of avoiding missing things during saccades.

    In any event, here is the link to the article. I’ve shared it with fellow cyclists and motorcyclists, as well as motorists, because I believe it contains solid advice for all about how to help reduce the changes of being missed or missing something – before horrible things happen.

    http://www.londoncyclist.co.uk/raf-pilot-teach-cyclists/

    George Hess, Knightdale, NC, USA

  2. Brendan KevenidesMarch 20, 2013 at 10:17 am

    George,

    Very interesting. I have read about the phenomenon that you’ve noted, though I don’t think I was familiar with the term “saccades.” Its very real impact – in my opinion – is why the single most important factor that can make streets safer for cyclists, is more people on bikes. Drivers simply get used to seeing bicyclists and, therefore, expect them to be there. In the case I mentioned involving the 80 year old man, one of the things the driver said to me was that because the crash occurred in December she just didn’t expect anyone to be out riding their bicycle. When drivers get used to seeing cyclists, the number of crashes, I hope, will be reduced.

  3. MickeyMarch 20, 2013 at 4:50 pm

    So this article establishes that the “I didn’t see him” defense does not do so much in avoiding civil liability in a collision, but I feel like this defense is still extremely effective in avoiding criminal fines or punishments. If I get killed by a careless motorist in the street, it would be nice to know that the person responsible would serve some time. But I feel like more often than not, local police can barely be bothered to write a citation under those circumstances.
    As another question, how does this situation change if the cyclist commits a minor infraction? If someone is riding on the sidewalk or blows through a stop sign and the driver claims to not see them, does the cyclist’s “wrong” trump the negligence of the driver?

  4. Cycling Legalese: Visible, Assertive, Alert and Predictable | Urban VeloApril 2, 2013 at 11:05 am

    [...] 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. [...]

  5. Team Lope Tyre Clubbe » A Collection of Handy Legal Tips for RidersApril 26, 2013 at 11:46 am

    [...] This was a great one. The columnist discusses the fallacy of the ‘I didn’t see the cyclist’ defense in civil negligence cases involving motorists striking bicyclists. I’ve often argued that it’s an unfair reality that cyclists are expected, and OBLIGATED, to make themselves seen through predictable riding. It’s unfair, but the basic problem with the ‘unseeing eye’ argument is that it’s generally a moot point, right? Doesn’t matter WHY they didn’t see you. A ghost bike is a ghost bike. I think about this often, as a cyclist who is also a motorist, and it stems from my motorcycle riding days: I’ve always been alarmed by how hard it is to see motorcyclists, let alone cyclists, in the road around and behind you, as they are frequently moving rapidly between lanes, accelerating at a different speed than the cars, and threading lanes between them. Add to all that the even smaller profile of a cyclist and the fact that some cyclists, including those of us here at Team Lope, have found occasion to thread the lane, ride in the lane with traffic, and so on. We are practically invisible, and that’s under the BEST CASE conditions where the motorists are alert. In this article, the columnist points out that not seeing the rider is no defense: if you can’t see safely, don’t move the vehicle. I think this is true. I’ve lived it, both as a motorist and as a cyclist. It’s just sad that in the end, it doesn’t matter if you’re the cyclist who got mowed down. http://urbanvelo.org/cycling-legalese-b … f-nowhere/ [...]

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