Examine the letter section of local newspapers or listen in on commentary on a.m. radio talk shows and the emergence of a new group of people becomes visible – folks who openly dislike bicycle riders. As the number of bicyclists (and their perceived political muscle) has increased, more and more citizens have come forward to denounce boorish, illegal, elitist, rude, and/or threatening behavior of bicyclists.
It is a little ironic that in spite of the view of us as bullies on the road, we are still also subject to all of the same old dangers that faced us before we increased our numbers. Oblivious drivers fail to notice our presence, or fail to acknowledge our right to be on the road even if we are noticed, these failures are still the cause of the majority of car/bicyclist accidents.
There is also an underlying shift in popular attitudes toward people on bikes that appears to identify certain shared experiences with bicyclists as emblematic of bicycle riders in general. Blowing through stop signs, giving people the finger, holding back traffic and erratic riding are now firmly planted in the minds of many drivers as the “group personality” of bicyclists. These drivers tighten their jaws as they drive past us, avoiding eye contact or any interaction that may expose them to our critical review or possible abuse.
A strain of resentment that somewhat contributes to this picture is the commonly held view that bicyclists believe they are superior to beings not on two wheels. Some folks view bicyclists as showoffs who wear loud colors and tight outfits to attract attention (conspicuity being at least part of the point), and since bicyclists seem to become so easily upset over the littlest things, it is best to just try and ignore them for the most part.
Unfortunately, this backlash to the bicycle movement has made its way into the jury box. Since jurors are drawn from voter and driver license lists, people on juries tend to include folks who are able to leave their jobs or home routines and serve for as long as a case takes to finish. Juries are composed of people who reflect area demographics and attitudes – the majority of jurors identify with car drivers and do not ride bicycles in traffic.
Lawyers who represent injured people (personal injury lawyers) have been heard to publicly complain about the negative attitudes they encounter within the jury box in bicycle cases. A recent posting to a lawyer list serve included the observation that a Multnomah County jury had recently made every call on the important issues in a trial in favor of a car driver over an injured bicyclist; the lawyer was complaining that the bike rider lost every judgment call – including the ones the bicyclist should have won. He concluded that it seemed like there was a lot of anger “out there” against bicycle riders.
My view is that there was never much anger demonstrated toward bicyclists by jurors in the past; most people identified themselves as former or present bike riders. Ignorance about riding, not anger, was the main impediment to clear understanding of the issues. Present attitudes by jurors are reported to be more skeptical and conservative with analyzing legal issues. Conventional wisdom among lawyers now is to view bicycle cases as being somewhat difficult. Given a choice between a bicyclist client with a broken arm and a service worker or school bus driver with the same injury received in a car accident there is little question that most lawyers would rather represent the non-bike rider in front of a jury.
When trial lawyers report that bicyclists are losing cases that should be won, we must respond or lose the hard won progress that got so many people on bikes in Oregon in the first place. There are many things we can do to improve our image in the minds of people. Not running stop signs, flipping people off, or yelling is a good start. But there are other ways as well. All of us should also become jurors as often as we are called upon to do it. The views of experienced riders give important experience and perspective to the jury.
Third, we must recognize that the law provides legal recognition of rights to the roadway that are misunderstand or otherwise not recognized by many motorists. Our obligation as bike advocates is to use the law to its fullest to obtain legal protection for other bicycle riders. In bike injury cases, one available procedural legal remedy is issue preclusion. Where the law is clear and there is no factual dispute for the jury, the court will entertain a motion for summary judgment which if successful results in an instruction to the jury to accept certain things as proven. Fear that the jury may be prejudiced against a particular party is a good reason to use issue preclusion to clear away potential hurdles to a fair recovery.
Portland rider Kat Iverson’s case provides a good example. She was riding and pulling a trailer on NW 143d Street in Portland early one December evening when an overtaking motorist struck her from behind. She received multiple fractures and serious injuries. The driver claimed through his lawyer that the accident occurred because Kat had failed to follow the law requiring every rider to stay as far to the right as practicable on the roadway. Lawyer Rick Klingbeil in our office made a good aggressive move on her behalf in preparing a motion for summary judgment on the issue. Rick’s legal analysis was based on ORS 814.430 (what I have labeled as the “Bicyclists’ Bill of Rights” in the book Pedal Power). The law provides that a person need not ride as far to the right as practicable, even if other vehicles are forced to slow down in order to accommodate the bicyclists’ use of the lane, “to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side.” Rick reasoned that under the facts of this accident, Kat had no obligation to move her bike and trailer to the far right side of the lane because it would only invite overtaking car drivers to attempt to pass by in an area where there was insufficient room to do it safely. Thus, she had a legal right to maintain her position in the road until the road became wider.
Rick’s concern was that while the law provides a sound legal basis for Kat to take the lane, many people still refuse to recognize the legitimacy of bicycles occupying part of the roadway. Successful use of issue preclusion to reduce Kat’s vulnerability to a wrong-headed legal analysis would remove this issue from jury consideration so that instead their analysis would focus on the real fact and legal issues in the case, such as injuries and damages.
In preparation for the motion, Rick retained a traffic engineer to study the roadway. Measurements established that the lane where the accident occurred was not wide enough for two vehicles to pass safely side by side. Since the road was in a no passing zone, the width of the lane would be determinative in establishing whether there was sufficient room such that the bicyclist could be found to be responsible for failing to leave enough road for the car driver. When the engineer measured the width of the lane, he found it was 9 feet 3 inches, instead of the more usual standard of twelve feet; the measurements conclusively demonstrated that the lane was too narrow for safe side by side travel. Rick’s motion was argued in court and granted by the judge – the defense of improper lane usage was stricken from the case. Now the jury that ultimately hears the case will not be provided with this defense on the jury verdict form and the judge will instruct the jury that Kat complied fully with this law.
Bicycle advocates have a new dilemma. Bicycle advocacy must include a message which addresses the anger felt by many people toward bike riders. While it may be impossible to remove every bad image in people’s memories, there is the opportunity to dilute negative experiences involving bike riders by making positive behaviors greatly outnumber the negative experiences. Every bike rider contributes in his or her own way, and style, to these points of contact with motorists. Until we move beyond the present uneasy balance of power on the roadway, bicycle riders will continue to be viewed with suspicion, fear, and ignorance by some drivers.
814.430. Improper use of lanes; exceptions; penalty.
(1) A person commits the offense of improper use of lanes by a bicycle if the person is operating a bicycle on a roadway at less than the normal speed of traffic using the roadway at that time and place under the existing conditions and the person does not ride as close as practicable to the right curb or edge of the roadway.
(2) A person is not in violation of the offense under this section if the person is not operating a bicycle as close as practicable to the right curb or edge of the roadway under any of the following circumstances:
(a) When overtaking and passing another bicycle or vehicle that is proceeding in the same direction.
(b) When preparing to execute a left turn.
(c) When reasonably necessary to avoid hazardous conditions including, but not limited to, fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals, surface hazards or other conditions that make continued operation along the right curb or edge unsafe or to avoid unsafe operation in a lane on the roadway that is too narrow for a bicycle and vehicle to travel safely side by side. Nothing in this paragraph excuses the operator of a bicycle from the requirements under > ORS 811.425 or from the penalties for failure to comply with those requirements.
(d) When operating within a city as near as practicable to the left curb or edge of a roadway that is designated to allow traffic to move in only one direction along the roadway. A bicycle that is operated under this paragraph is subject to the same requirements and exceptions when operating along the left curb or edge as are applicable when a bicycle is operating along the right curb or edge of the roadway.
(e) When operating a bicycle alongside not more than one other bicycle as long as the bicycles are both being operated within a single lane and in a manner that does not impede the normal and reasonable movement of traffic.
(f) When operating on a bicycle lane or bicycle path.
(3) The offense described in this section, improper use of lanes by a bicycle, is a Class D traffic infraction.