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…
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.”
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.
Cycling Legalese Question Submission Form: