Legally speaking: getting doored while bicycling

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FROM VELONEWS

Legally Speaking - with Bob Mionske: Doored v. Nailed
By Robert Mionske, JD
This report filed March 16, 2006
Dear Bob,
I love your column, even if it does point out I am often wrong in my mistaken beliefs. What is the legality of when a cyclist swerves to avoid a car door opening and is hit from behind by a car? It has not happened yet, but oh so many close calls!
D. D.

Dear D.D.
Wow, talk about being between a rock and a hard place! Okay, so theoretically speaking, you swerve to avoid getting doored, and you get nailed instead from behind. Who's at fault here? Well, there are about 50 answers to that question, depending on the state you live in, but we can narrow that down to four different auto liability systems in the U.S. But first, let's talk about getting doored vs. getting nailed.

Doored v. Nailed
The risk of getting doored is a common one for cyclists; I've represented many, many cyclists who've been doored. While getting doored is sometimes depicted for humor (the new Pink Panther movie comes to mind), the reality of getting doored isn't funny at all. A student at the University of Michigan has even compiled a number of news accounts of cyclists who were doored, and while it's not what we would call a scientific study, the results are interesting, to say the least. In this student's survey, there are seventeen news accounts of cyclists getting doored; eleven of those cyclists were killed, and five were seriously injured. What's most interesting is how the injuries occurred.

Of the eleven cyclists who were killed, nine of them were actually killed by another vehicle passing by. One of the nine swerved to avoid getting doored, lost control of his bike, fell, and was struck by a passing 18-wheeler. The other eight were knocked into the path of another vehicle after first striking the door. The other two cyclists who were killed died after striking the door and being thrown to the pavement. One died of head injuries, while the other "lapsed into a coma" before dying. The accounts don't indicate whether these two cyclists were wearing helmets when they were thrown to the pavement.

Of the five cyclists who were injured, one struck the door and was thrown into the path of another vehicle, suffering a crushed pelvis. The other four cyclists sustained injuries from striking the door. One suffered a broken collarbone and facial injuries, another sustained a torn rotator cuff and a badly bruised head, the third received serious head injuries, and the fourth is now a quadriplegic.

Now, remember that this is not a scientific study, but the data presented indicates that while striking the door can lead to serious injury, getting nailed by a passing vehicle is far more deadly, with most of the fatalities in these dooring incidents attributable to being struck by a passing vehicle. With that in mind, your strategy of swerving to avoid being doored is a potential fatality waiting to happen. My advice would be to change your riding style before your luck runs out. I'll discuss some specific ideas to protect yourself a little later, but before I do that, let's answer your question: "who's responsible" if you swerve to avoid getting doored and get nailed from behind instead?

That answer will vary, depending on which state you live in. Nevertheless, every state fits into one of four auto liability insurance systems, so let's take a look at how this type of accident would be handled in each of these four systems.

Tort Liability System
A tort liability system is the traditional system for handling personal injury and property damage. In a tort liability system, if somebody's negligent act causes injury, that person is liable for damages to the person injured. Damages are compensation for losses such as:

Economic loss: this includes medical expenses, lost earnings, and other out-of-pocket expenses incurred as a result of the injury.
Physical pain: these damages include pain already suffered, as well as pain expected to occur in the future.
Mental Distress: these damages include the fright and shock experienced at the time of the injury, humiliation due to lasting effects of the injury, such as disfigurement or disability, and depression resulting from the inability to continue one's former life due to the seriousness of the injury.
Loss of the ability to enjoy life: this is the loss incurred when the injured person is unable to enjoy aspects of life that were enjoyed prior to being injured. For example, an avid cyclist who can never ride again following an accident may be able to recover damages for this loss.
Loss of consortium or companionship: these are the losses suffered by the spouse, parents, and children of an injured person.
Wrongful death: these are losses suffered by the survivors of a person who was killed as a result of somebody's negligent act.
Future damages: these are damages resulting for the negligent act that the injured person can be expected to sustain in the future. Future damages are awarded because the injured person cannot file a separate future lawsuit to recover later damages.
Punitive damages: these are damages awarded to the injured person to penalize the person who committed the negligent act, and to deter others from acting in a similar manner, where the conduct of the person who committed the negligent act is particularly outrageous.

Twenty six states have a tort liability system for traffic accidents; in one of these states, if you're involved in an accident, there will be an attempt to determine fault. Depending on which state the accident occurs in, one of three negligence systems will be in effect:

Pure comparative negligence: in a pure comparative negligence system, the injured person can recover damages for injuries received, and is liable for damages for injuries inflicted. For example, if the cyclist is 40 percent negligent and the driver is 60 percent negligent, the cyclist can recover 60% of his damages, but also is liable for 40% of the driver's damages.
Modified comparative negligence: in a modified comparative negligence system, if the injured person is determined to be 50 percent or more negligent, the injured person cannot recover damages.
Contributory negligence: in a contributory negligence system, if the injured person's own negligence contributed to the accident in any way-even if the injured person was only 1% negligent-the injured person cannot recover damages.

Now, following an accident in a tort liability state, the initial determination of fault will be made by the insurance company of the driver who hit you. In your hypothetical scenario, there are three possibilities:
1) the insurance company will determine that the driver who hit you is 100% at fault;
2) the insurance company will determine that you are 100% at fault; and
3) the insurance company will determine that you're both at fault (we'll get to the driver who nearly doored you in a moment).

Because you swerved into the path of the driver, it's extremely unlikely that the insurance company is going to find the driver 100% at fault, so it's safe to eliminate that possibility. The remaining possibilities are that the insurance company will find you either partially or entirely at fault. Once the insurance company has made this determination, they will inform you of the amount, if any, they will reimburse you for your expenses, as well as the amount they expect you to reimburse them for damage to the car.

The type of negligence system in effect in your state will then determine who pays what. For example, if the insurance company decides you are 100% at fault, you will not be reimbursed for your expenses, and you will be expected to pay for the damage to the car. On the other hand, in a comparative negligence state, if the insurance company determines that you are 40% at fault, you will be offered reimbursement for 60% of your expenses, and you will be expected to pay for 40% of the damages to the car. However, if your liability in the accident is 50% or more in a modified comparative negligence state, you will not be reimbursed for your expenses, and you will be expected to pay your liability percentage of the driver's damages. And if you happen to live in a contributory negligence state, and were negligent to any degree, you will not be able to recover for any damages.

So far, what we've talked about is the insurance company's determination of fault. Based on the insurance company's determination that you can recover damages, the insurance company will make an offer to settle your claims. Whether you accept this offer is entirely up to you. For example, if you feel that the offer does not adequately compensate you for your damages, you are not required to accept the offer. Similarly, if you do not agree with the insurance company's determination of your own degree of fault, you are not required to agree with them. If you decide to reject the insurance company's determination of fault and/or their offer, your options are to either negotiate further with the insurance company, or to file a lawsuit. Ultimately, if you and the insurance company do not agree, it is up to a jury, and not the insurance company, to determine liability and damage awards.

Now, back to the scene of the accident. Remember that driver who nearly doored you? There is a very high probability that the driver who nearly doored you will be found to be the superseding cause of the accident. This means that this driver's negligence supersedes any other person's negligence, and is the legal cause of the injuries sustained. In fact, in some states, it is illegal to open a door in the bicycle lane if it is unsafe to do so or will interfere with the movement of a bicycle. In those states, the violation of the statute would at a minimum be considered prima facie evidence of negligence; this means that the violation of the statute would be considered legally sufficient to establish negligent conduct unless the presumption of negligence were disproved. In at least some states, however, the violation of the statute would be considered negligence per se; this means that if a person has violated the statute, that person will be found negligent as a matter of law.

Because the driver who nearly doored you may be found liable for negligence, you must be absolutely certain to get as much of that driver's identifying information as possible, as well as to get the names and phone numbers of any witnesses to the accident. If you are conscious, but are too injured to get the information yourself, you should ask any bystanders available to get the information for you. Otherwise, you may have be faced with the task of trying to find a mystery driver and witnesses days or weeks later.

No-Fault System
Twelve states have abandoned the tort liability system for a no-fault insurance system. There are two main features of a no-fault system. First, if you swerve into the path of another vehicle to avoid getting doored, you would be compensated for your injuries and property damage by your own auto insurance policy, without regard for who was at fault. However, that compensation would be limited to your economic damages, such as medical expenses and lost income; none of the non-economic damages would be available to you.

Second, if you're injured in a no-fault state your right to sue for severe injuries and pain and suffering is severely restricted by the state's "threshold"-the level that your injuries must meet before you are allowed to file a lawsuit. Some states use a verbal threshold, while other states use a monetary threshold. A state that uses a verbal threshold will not permit you to sue for your injuries unless your injuries meet the state's description of the severity of injury necessary for a lawsuit to proceed. A state that uses a monetary threshold will only allow you to sue for your injuries if your expenses exceed the dollar amount of the monetary threshold. The thresholds will vary from state to state; in states that have decided to severely limit litigation, the thresholds are set high, thereby eliminating most lawsuits. Because monetary thresholds set a dollar "target" that encourages fraud, some states have instead opted for the verbal threshold.

The insurance industry is the driving force behind no-fault insurance; the industry's theory is that by restricting litigation, costs and delays are reduced, resulting in benefits to consumers. Proponents of no-fault observe that a study indicates that states with strict limits on litigation have lower average bodily injury claim costs than other states. On the other hand, another study indicates that states with no-fault insurance have consistently higher premiums than traditional tort liability states, so those lower bodily injury costs are not being passed on to consumers in the form of lower premiums. Despite the fact that no-fault premiums are higher, however, the real losers in no-fault states are the injured parties, because they are severely restricted in recovering damages for their injuries.

Now remember, if you're nailed by a car after almost getting doored, the claim for your medical expenses and lost income will be submitted to your own auto insurance company. But what if you don't have an auto insurance policy? What if, for example, you're a bicycle commuter who doesn't own a car, and thus, you don't have auto insurance? In a no-fault state, rules have been developed to determine who pays your damages. For example, the driver's insurance company may be required to compensate you, or if the driver is uninsured, the insurance company of another driver in your household may be required to compensate you. If there is no other driver in your household or in the driver's household, the state may have an uninsured driver's fund to compensate you.

Hybrid System
Another nine states have adopted a "hybrid system" in which the first-party benefits of the no-fault system are "added on" to the traditional tort liability system. In these states, there are no restrictions on lawsuits, but the first-party insurance coverage may not be mandatory, as it is in the no-fault states, and the first-party benefits may be lower than in the no-fault states.

Choice System
The remaining three states offer a choice between no-fault or tort liability. In these states, consumers choose whether they want a policy with a threshold limit on lawsuits or a policy with no restrictions on lawsuits. In New Jersey, the consumer is presumed to have accepted a verbal threshold on lawsuits unless they specifically reject the verbal threshold and retain their right to sue. In Pennsylvania, on the other hand, the consumer is presumed to have retained their right to sue unless they specifically request a verbal threshold on lawsuits. In Kentucky, the consumer must specifically request to retain their right to sue, as in New Jersey, except that Kentucky's threshold is monetary.

Finally, in the District of Columbia, consumers may choose either no-fault or fault-based (tort liability) coverage; however, if a driver with a no-fault policy is involved in an accident, that driver has 60 days to decide whether to accept the no-fault compensation or to file a lawsuit.

Protecting Yourself
So far I've discussed what happens after you've been injured; is there anything you can do to protect yourself before you are injured? In many European cities, bike lanes are separated from the parking curb, completely eliminating the possibility that an inattentive driver will door a passing cyclist. However, in the United States bike lanes are positioned between the parking curb and the traffic lanes, and getting doored is a common problem. Regardless of how common the problem is, swerving to avoid getting doored is not a good riding practice, as you have probably realized now. From your letter, it sounds like you've swerved to avoid getting doored on more than one occasion; as I noted above, this is a potential fatality waiting to happen. I would suggest learning more about safe riding techniques, whether through your own reading or through a bicycle safety course.

Safety experts generally suggest riding outside the door zone, which means keeping a distance of three to five feet between your handlebars and the parked vehicles, depending on who's giving the advice. Regardless of the distance you choose, this riding strategy can potentially place you outside the bike lane, and in the traffic lane. In many states, the traffic laws require you to ride in the bike lane, which effectively puts you in the door zone. So how do you cope with that contradiction between safety and the law? You need to read the statutes in your state and see what they require and what they allow. As an example, let's look at what the laws say in California, Oregon, and Washington.

Let's look first at California:

21202. Operation on Roadway (a) Any person operating a bicycle upon a roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride as close as practicable to the right-hand curb or edge of the roadway except under any of the following situations ... (3) When reasonably necessary to avoid conditions (including, but not limited to, fixed or moving objects, vehicles, bicycles, pedestrians, animals, surface hazards, or substandard width lanes) that make it unsafe to continue along the right-hand curb or edge...
21208. Permitted Movements from Bicycle Lanes (a) Whenever a bicycle lane has been established on a roadway pursuant to Section 21207, any person operating a bicycle upon the roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride within the bicycle lane, except that the person may move out of the lane under any of the following situations ... (3) When reasonably necessary to leave the bicycle lane to avoid debris or other hazardous conditions...

Although at first glance it may seem that the law requires you to ride to the right, in fact it only requires you to ride as close to the right as "practicable." This means that you must ride to the right if conditions make it feasible. However, unsafe conditions are an exception to that requirement. After reading about the injuries and fatalities involved in dooring accidents, is there any doubt in your mind that cars parked next to a bike lane present a hazardous condition? In effect, unsafe conditions make riding in the door zone infeasible. Now, did you also notice what the bicycle lane statute says? You are required to ride in the bicycle lane, but again, if "hazardous conditions" are present, you are permitted to leave the bicycle lane to avoid those conditions. Thus, in California, you are not required to choose between safe riding and obeying the law.

Now let's see what Oregon says. In Oregon, ORS 814.420 requires cyclists to use a bicycle lane:

814.420 Failure to use bicycle lane or path; (1) ...a person commits the offense of failure to use a bicycle lane or path if the person operates a bicycle on any portion of a roadway that is not a bicycle lane or bicycle path when a bicycle lane or bicycle path is adjacent to or near the roadway ... (3) A person is not in violation of the offense under this section if the person is able to safely move out of the bicycle lane or path for the purpose of: (c) Avoiding debris or other hazardous conditions.

Did you notice that, as in California, although you are required to ride in the bicycle lane when one is available, you are not in violation of this section if you are riding outside of the lane to avoid hazardous conditions? Now, remember that Oregon also makes it illegal to open your car door unless it is reasonably safe, so arguably, the law eliminates that hazardous condition. But realistically, people are still going to do open their doors as cyclists are passing, so at best, the hazardous condition is illegal, but still hazardous.

Now let's look at Washington:

RCW 46.61.770 Riding on Roadways and Bicycle Paths (1) Every person operating a bicycle upon a roadway at a rate of speed less than the normal flow of traffic at the particular time and place shall ride as near to the right side of the right through lane as is safe ...

That's an interesting statute, because although it appears to require you to ride to the right, it actually has two exceptions. The first is that you are only required to ride to the right if you are "operating a bicycle upon a roadway at a rate of speed less than the normal flow of traffic." The second exception is that you are only required to ride as far to the right "as is safe." So, again keeping the hazards of getting doored in mind, is there any doubt in your mind that it is unsafe to ride in the door zone?

Another simple precaution you can take is to get a mirror; there are several types available, with some attaching to your helmet, and others attaching to your bars. Experienced cyclists swear by their mirrors, and using a mirror soon becomes second nature for these cyclists. If you're not riding with one now, I would encourage you to start. Today.

Another must for every cyclist is insurance. Unfortunately, there's no such thing as "bicycle insurance" in this country, although it is available in the United Kingdom. For all of my readers who work in the insurance industry, that's something to think about. If you have automobile insurance in a state with first-party benefits, your insurance policy will cover you in collisions with a motor vehicle. In particular, you will want to make sure that you have adequate coverage for Personal Injury Protection ("PIP"), because this will pay your medical bills and lost income if you are injured. You should also make certain that you have adequate Uninsured Motorist ("UM") and Underinsured Motorist ("UIM") coverage, because these coverages will pay both your economic and non-economic losses if you are hit by an uninsured or underinsured motorist. If you don't have an auto insurance policy, you will still have coverage for your medical expenses if you're covered under a health insurance policy. However, with some 45 million Americans having no health insurance of any kind, the possibility remains that a cyclist can be injured and uninsured by either an auto policy or a health policy. Something to think about when we look at the bicycle policies available in the U.K.

In the final analysis, if you take some simple precautionary steps, you can significantly reduce the hazards of getting doored vs. getting nailed.

Good luck,
Bob
(Research and drafting provided by Rick Bernardi-law student- Lewis and Clark)

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Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race. After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc). If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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