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Cycling Legalese: Road Rage Retribution

bkevinidesCycling 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.

I had one big concern in that case. Making a case that the driver was in the wrong would be easy. He seemed to have intentionally struck my client. But that was the problem. I was afraid that the driver’s auto insurance carrier would deny coverage because the incident seemed to have been an intentional act. Liability insurance, including auto liability insurance, covers an insured for his or her negligent conduct, not intentional acts. Insurance exists to protect one against the consequences of harm caused by errors in judgment, not malicious acts. “Negligence” under the law means a failure to act with due regard for the safety of others. In a civil personal injury lawsuit, a jury of one’s peers is often charged with determining whether a person failed to act with such due care (the so-called “reasonable man” standard), and thus caused an injury. Intent to cause harm is something else entirely. It is setting out to purposefully harm. In my road rage case, I knew I could sue the driver and force him to look to his personal assets to compensate my client, but I was not sure the guy had any money. Sure, he was driving a nice car, but it could have been leased; it could have belonged to his parents. As it turned out we resolved the case with the driver’s insurer paying most of the settlement and the driver kicking in some additional money from his own fairly modest assets. The point I wish to make, however, in recalling that case is that if you are involved in an incident with a motorist be very careful when describing the events to police, witnesses and insurance companies. Do not speculate that the driver acted with malicious intent. If you are badly hurt and decide to pursue a personal injury action against the motorist, having categorized the driver’s conduct as intentional may mean that his or her insurer will refuse to compensate you for your injuries. The insurance company and its lawyers may go to court and ask for a ruling that the policy does not apply because the injury causing act arose from malice, rather than negligence.

If your injuries are bad, requiring a lot of medical care, there is a low probability that the responsible motorist will have enough money or other assets to compensate you fully. There is no need for you to offer commentary when reporting a road rage incident. You should avoid the term “road rage” all to together. As they say, just the facts. Vent to your friends or family later.

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.

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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. →

One Comment

  1. kyleApril 17, 2013 at 1:56 pm

    I’m not so sure I agree. If you do not have personal health insurance, which should cover your medical expenses, then I can see why you want to avoid the malice angle so that the driver’s insurance will pick up your hospital bills. But if you do have health insurance, wouldn’t you want to play the malice card so the driver can be criminally tried, with the hope that they loose their licence or even spend time behind bars?

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