Now, we find that most of the time the car is primarliy at fault for the accident, but our injured clients are always surprised to learn that insurance company is inclined to BLAME THE BICYCLIST as a way of diminishing the value of the claim as opposed to humbly accepting responsibility for the loss. In this week’s edition of Whiteboard Wednesday, Matt tackles how auto insurance companies love to blame the bicyclist after a driver causes an injury-accident and gives you some tips about what to watch out for…
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<a class=”embedly-card” href=”https://youtu.be/7IvGaUQf0b8″>Bike Accidents: Blaming The Bicyclist (May 24, 2017)</a><script async src=”//cdn.embedly.com/widgets/platform.js” charset=”UTF-8″></script>
Hi, everybody. Matt Quinlan here, and welcome to another edition of #WhiteboardWednesday where we tackle legal issues that our clients face and we oftentimes get from people that call our office. Today, we’re gonna be talking about bicycle accidents and how, oftentimes, bicyclists can be blamed for helping cause the accident that left them injured. So, let’s get into it.
Before we get started, I want to talk a little bit about underinsured motorist coverage. There’s a misconception that underinsured motorist coverage, which is attached to your auto policy, only covers you when you’re injured in a car accident. That’s just not true. It also covers you on, when you’re involved in bicycle accidents. We have written quite a bit about this on our website, and I’ll go ahead and link down below in the description to a blog entry about UIM. The short of it is you should know that it covers you as a pedestrian, and any car, yours or someone else’s, and also as a bicyclist.
We recommend to our clients that they get at least 100,000, 300,000 in UIM coverage, and you should know that if you’re involved in an accident on a bicycle or as a pedestrian with another vehicle, you are going to need to have contact between the vehicle and your bike or the vehicle and you as a pedestrian. So, that’s one little intricacy of UIM claims that involve bicycles. But it’s very important. So, look into that. And again, check out the link below.
So, blaming the bicyclist. So, we represent a lot of bicyclists that have been injured in accidents as personal injury lawyers. And they’re almost always hurt badly. Obviously, you’re not very well protected on the bicycle as compared to a car, which is going to weigh several thousand pounds. So, oftentimes, bicyclists find themselves injured quite badly. And they come to us to help them recover for all their injuries and their pain and suffering, and we end up bringing a claim against an insurance company, typically for somebody’s vehicle.
And the insurance adjuster immediately begins to start blaming the bicyclist, for things the bicycles did to contribute to the accident. And that will follow the case all the way long until resolution because defense attorneys also love blaming the bicyclist. They find various ways to try to minimize the damages that they owe to you by claiming that you are also at fault, you contributed to your accident. It’s a legal concept in California called comparative negligence. And so, basically, they blame you also for the accident, and they say, “Maybe we’re at fault for causing this injury to you, but you’re also at fault for it.” So, it really does diminish the value of the claim if they’re successful in getting you to accept some fault for the accident.
And these are some of the things that we see a lot. These are some of the tactics that oftentimes insurance companies will use. And they’ll be the things that the insurance company is looking for to find fault in you as an injured bicyclist.
(1) The Bicyclist Wasn’t Visible
The first one is visibility, okay? We couldn’t see you. Fair enough. I mean, nobody’s trying to hit a bicyclist. So, it’s fair to reason that the person didn’t see the bicyclist. And so, insurance companies and defense attorneys will often try to find reasons why they didn’t see you beyond they weren’t paying attention.
One of the things that the California Vehicle Code requires is a light if you’re riding at night. You have to have a bright white light on the front of your bicycle along with red reflectors on your bike. That is required. So, if your bicycle doesn’t have a front white headlight on it, you shouldn’t ride it at night because you could get cited for it, one, and if you’re involved in an accident, you will be blamed in part for causing the accident because you weren’t allowing yourself to be seen well by the motor vehicles. The reflectors, those should be on everyone’s bike. You can add them, obviously, the more the better, the safer you would be. But red reflectors, the traditional ones that you’re used to seeing where they be on the bike or on the tires are required.
A rear light is not required. So, some people that bicycle a lot in San Francisco do have red rear lights as well. Those can be helpful. We recommend them. You should also know that obviously riding your bicycle at night in a big city is somewhat dangerous. Now, that in and of itself will cause you to be blamed for an accident that you’re injured in, but just be mindful that, you know, you’re taking on a bit more risk when you’re riding your bike at night.
Another thing you should be aware of is clothing. So, there’s nothing that says what you should or should not wear while you’re riding a bicycle. But obviously, if it’s nighttime, and you’re wearing all black, then you’re making yourself less visible to, you know, people that are driving vehicles around you. So, it’s something to consider, and it’s also the type of thing that could have an insurance company or defense attorney try to shift some of the blame onto you by saying, “Hey, look. I mean, had he or she not been wearing all black that night, this accident wouldn’t happen. My client, the guy in the car, would have seen the bicyclist, and the accident would have never happened.”
Anyway, so, this is the type of thing that can be effective, an effective tactic by insurance companies because juries, frankly, buy this argument, don’t ride your bike wearing all black, for example. That doesn’t mean you’re required to wear a reflective vest, although that would be great. You should be mindful of the kind of clothes you’re wearing. And if you’re gonna be riding a bicycle at night, obviously, wear clothing that can be more easily seen.
(2) The Bicyclist Wasn’t Wearing a Helmet
A helmet is the second one. We all know that in California, you’re not required to wear a helmet once you’re 18 years old. That’s the California Vehicle Code 21212, fine law. But it does not mean, however, that you can’t be blamed for helping contribute to your injuries if for some reason you were to suffer some sort of head injury in a bicycle versus car accident. It is also very effective in terms of the tactic to diminish the value of your claim by saying, “Had your client, Mr. Quinlan, been wearing a helmet, the accident either would have caused minor injuries. It wouldn’t have caused a concussion,” or something along those lines.
So, be mindful of the helmet thing. Wear a helmet. It’s the smart thing to do, you know, if you’re involved in an accident, you hurt your head, you’re not wearing a helmet, you’re a grown person, you’re still gonna be blamed in a civil case, a personal injury case, for not having one. So, that’s something to keep in mind.
(3) The Bicyclist Ran The Stop Sign
Stop signs, okay? You’re required to stop at stop signs and stoplights just like cars are. Oftentimes, people don’t do that. I live in San Francisco. I see bicyclists all the time, and maybe one in a hundred of them stop at stop signs. And every time they do it, I know that if an accident is to occur, it’s going to cause that bicyclist to bear some fault in the accident. And it’s the type of thing that’ll end up in a police report as well.
So, it’s a shame because it’s not very practical. I mean, are you really gonna stop at every stop sign in San Francisco if you’re going through the mission or the Richmond or the sunset or something like that? Every block? Probably not. For that reason, it doesn’t happen. And people don’t stop. And that’s frankly where a lot of these accidents happen at these intersections that are controlled by four-way stops with bicyclists because they just don’t stop. You have to stop, right? You have to stop.
Now there’s this idea that you should be able to just slow down. And I get that. And that makes sense to me. But if you don’t stop and someone sees you do that or you testify to that effect in your deposition, you’re gonna hurt the value of your case because you are going to therefore be partially responsible for the accident. Had you stopped, it wouldn’t have happened. So, this is probably the main thing I see bicyclists that aren’t stopping at stop signs. And the insurance companies and the defense lawyers love it because it’s easy for them. It’s an easy, you blew through the stop sign, you know, maybe my guy did too but so did you.
So, something that you should have in the front of your mind, and you have to really consider for yourself like, do I want to save that additional energy and time, by, you know, blowing through the stop sign or do I want to be safe even if something happens and I didn’t stop. Tough call, obviously. As a lawyer I recommend you stop at stop signs. As a, you know, person I understand it.
Which brings me to this whole Idaho stop. In Idaho stop, the idea of it is you just yield. It’s a yield at four-way stops. It’s not a full stop. And that is much more practical. They’re adopting Idaho laws around the country, started in Idaho, imagine that. And recently in California, they’ve started to kick around the idea in the legislature that they might adopt an Idaho stop law which would allow then bicyclists to yield, make sure it’s safe, and then proceeding you don’t have to come to that complete stop, which involves putting your foot down.
If that’s, you know, if that’s implemented, obviously that would change the game a lot. It will take the burden off of bicyclists. I think it would improve the, you know, the value of most bicyclist case because there’s a presumption, at least in San Francisco, that people don’t stop on bicycles at stop signs.
(4) The Bicyclist Was Riding in the Crosswalk or Sidewalk
Next thing I want to talk about is crosswalks and sidewalks. So, in San Francisco, you cannot ride your bicycle on a sidewalk if you’re 13 years old or greater. So, only children are allowed to ride bicycles in sidewalks. People don’t know that. Obviously you’re probably not gonna be involved in a motor vehicle accident on the sidewalk, but you do get involved in accidents with pedestrians, and that’s the type of thing that could potentially get you sued if you run over somebody and you’re a grown person on a sidewalk.
And then crosswalks. You’re not supposed to ride your bike through the crosswalk. You you’re supposed to get off your bike, walk it across. There’s obviously a lot of safety reasons for that. It’s pretty effective if you’re not riding your bike quickly through a crosswalk. But you’re not supposed to be on a sidewalk, so why are you in the crosswalk, you know? As a bicyclist, the law views you as a driver of a device. Not a car, but a device. You’re not a pedestrian. The minute you take those feet off the ground and put them on the pedals, you are not a pedestrian anymore. So, you should not be riding your bike at a crosswalk. You can get cited for it.
And we do see a lot of accidents with people riding their bike through a crosswalk, and then a car will either run it or not see them and hit them. They’re obviously injured really badly and then it comes this situation of who’s responsible or both people responsible. And if you’re an adult and you’re riding your bike at a crosswalk before your injury, you’re probably going to end up hurting the value of your case.
(5) The Bicyclist Was Going The Wrong Way in Traffic
Five, the flow of traffic. You have to ride a bike with the flow of traffic, okay? That’s the Vehicle Code 21650. We all on these like drivers that, you know, you go with. When you’re a pedestrian, you go against it. When you’re a bicyclist, you go with. In San Francisco, there’s a lot of one-way streets, all right? So, if you find yourself downtown, or you know trying to kind of get around, and you think a quicker way to take one of these one-way streets on your bicycle, then you are really putting yourself in quite a bit of risk of harm. And it’s something that will get you cited. And if you’re involved in an accident, you’re going the wrong way on Pine or something, you know, you’re gonna end up for potentially, primarily, at fault for your accident and for your injuries.
So, never ride bike ride your bike against the flow of traffic on a one-way street. If you find yourself on one, what the law requires is that you get off your bike, go to the sidewalk, and then walk your bike. Don’t ride your bike in a crosswalk and the sidewalk.
(6) The Bicyclist Couldn’t Hear Traffic
Next, listen. You have to be able to hear traffic, okay? There is a one-ear rule, it’s the same as if you’re driving a car. You have to have one you’re free to hear people speaking, yelling, horns, just the noise and the sounds of traffic, right? So, it’s unsafe to not be able to hear. If you’ve got your headphones in and you’re listen to music, or if you’re on the phone and both ears are covered, then you’ve lost one of your senses. You’ve at least diminished that sense of hearing. So, it can contribute to an accident. And if you’re involved in an accident and somebody sees you with both of your headphone earbuds in, you’re gonna end up being partially at fault in this accident, most likely. So, leave one loose, okay, just like if you’re driving.
The handheld thing, you can hold your cell phone. It’s not like a car. You can actually speak on your cell phone with one hand. There’s nothing wrong with that. You don’t have to use headphones for that. And, you know, along those lines you can have one hand doing something, holding a bag, holding your phone, and ride your bike with one hand. That’s also perfectly fine. So, you know, no sweat here on this one-hand thing, but the one-ear thing is really, really important.
(7) The Bicyclist Had Been Drinking
Drinking, okay? You know, you’re at a festival. You’re going to a park. You’re doing something. You’re out. You think to yourself I don’t want it you know drive under the influence. I don’t want a DUI. I don’t want to put other people and myself at risk for driving drunk. So, you take your bike, and you think that that’s somehow, you know, no big deal or nobody will know or that’s acceptable. It’s really not. It’s not anywhere near the level of a DUI in a vehicle. It’s just a misdemeanor, okay, but you’re still held to the same standard. The .08 still applies to you. You can still have a field sobriety test.
If you’re involved in an accident, and you’re on your bike, and you’re injured and go to the hospital, they’ll going to blood alcohol test you. And it’s going to come back in your medical records. And if you end up being over 0.08, you’re going to have contributed to your accident. And the value your case again is going to diminish. So, don’t drink and bike, okay? Get an Uber or a Lyft or a ride from a friend or walk. You can be as drunk as you want and walk.
The fines for this type of thing are only \$250. So, it’s a little bit light and you don’t do any jail time. So, it’s nowhere near, like I said, the DUI with a vehicle, you hurt the value of your case a little bit, but you won’t completely squander it if you were driving drunk in a car and got in an accident.
So, there you have it. Those are kind of some of the things that insurance companies will do to try to diminish the value of your case if you’ve been injured in a bicycle accident in the Bay Area or San Francisco. We see this a lot. We handle a lot of bicycle accidents. I’m happy to answer any questions you all have about any of these things related to bike accidents. Leave a comment below if you want to ask any questions about this type of thing or anything else related to personal injury matters. I’m happy to answer those questions as well.
So, that’s it. I hope you enjoyed it. I hope you learned something. Be safe please. We just had bike to work a day last week. That was a great event. A lot of people were riding their bikes. But you’ve got to be safe. And that’s the most important thing. So, thanks again for watching, and we’ll see you next week on Whiteboard Wednesday.