The Explainer: Close encounters of the pothole kind

Dear Explainer,
A month ago, I was riding to work on a clearly marked bike lane during a pretty bad rain storm. Nearing the bottom of a hill, a FedEx truck pulled into the bike lane to “double park” while making a delivery. It was foggy – and so were my glasses – and I didn’t see the thing until it was almost too late. I quickly moved out into the flow of traffic and I’ll be damned if I didn’t hit an HUGE, ugly pothole that almost completely swallowed my front wheel and sent me sailing over the bars. As if that wasn’t bad enough, a lady on an electric bike hit my bike and hit the deck, too.

I ended up breaking my wrist, my nose and ripping up my face pretty badly. (I didn’t make it to work that day.) The woman on the electric bike ended up breaking her forearm and completely destroyed my frame (it was carbon), too.

I was thinking about filing suit against FedEx, calmed down a little, but I just got a letter from the electric bike lady’s lawyer which, in addition to asking for my insurance information, also hinted that she might be suing me at some point along the way. What should I do? Should I respond to the letter? So far I haven’t. I’ve also ignored two messages from the guy. I know your normal advice is to hire my own lawyer, but it’s not like you people come cheap and I’m not exactly wealthy, but not poor enough to get free legal services.

Finally, I also want to mention that I am a long-time reader, but this is the first time I’ve ever submitted a question. I want to say how impressed I am with how you managed to keep your sense of humor and to continue writing (and LUGging!) all the way through your treatments. I hope you are recovering and that your medical condition stays good.
— Mitch

Dear Mitch,
Man, talk about having a string of bad luck. It was something of a convergence there, but unfortunately, the problems you encountered are all-too-common dangers out on the roads. You just happened to score on multiple fronts. I wish you a speedy recovery from your injuries.

One thing you don’t mention is whether the accident resulted in the dispatch of police (or ambulance) to the scene. From the sounds of the damage incurred, I have to guess that someone called 9-11 and the cops have a report of the incident.

If so, was anyone ticketed at the scene? The FedEx guy? The woman on the electric bike? You?

Obviously, if there was a citation issued, that may play a role in the case. It’s certainly an indication of who might ultimately be considered to be liable for damages.

And, yes, you’re right. My normal recommendation is to go see a lawyer. I understand how you might “fall through the cracks” by having too much income to qualify for Legal Aid (or similar services), but not enough to be able to afford the hourly fees of a private attorney. It’s something of a dilemma, but with another possible plaintiff making noise about potentially suing you, it might be worth making an inquiry.

It will also help to contact your insurance agent to see what, if any, coverage you have might extend to this accident. You might have liability coverage under your homeowner’s policy that would extend to a situation like this, even though it took place away from your home. In the mean time, keep doing what you’re doing and don’t respond to the letters and phone calls from the woman’s attorney. If you’re covered by insurance, let those guys handle it. If not, yes, get yourself a lawyer, even if it costs you some money.

Frankly, from what you’ve told me, it sounds as if she doesn’t have much of a claim against you. If she ran over the back of you as you went down, it seems to me that you could easily claim she was following too closely … especially for the conditions out on the road at the time. Having a police report would be helpful. It seems to me that the two of you might have similar claims against the same potential defendants than you do against each other. Again, it’s something your lawyer can help sort out.

Who to sue?
Now, as to your thought about suing FedEx, the first thing I would do is check the local ordinances regarding parking in the bike lane. Stupid as it sounds, some municipalities actually allow that kind of stuff to happen. No, I don’t mean the usual example of a poorly designed bike lane with legally parked cars along the side, just waiting to “door” you and other riders. I mean that some communities allow – even encourage – commercial vehicles to pull into the bike lane and stop while making a delivery.

One thing that was unclear from your description was when and how the driver chose to pull into the spot. If he cut you off in an unsafe manner, forcing into traffic on short notice, you may still have a claim, even if your community allows such temporary double parking in a bike lane for purposes of making a delivery.

One thing that intrigues me is the pothole you mentioned. Is it still there? If so, go out and try to get a picture of the thing and, assuming you won’t be in traffic, try to get a measurement of it.

You just might be able to file suit against the locality for its failure to address the problem, if you can show that the agency responsible for maintaining the road knew about the hazard, yet failed to repair or at least warn the public about it. The proximity to the bike lane may also lend further weight to a claim.

When contemplating a claim against the city, here are few things to consider. Was the road hazard the result of a bad repair job by the city? If it’s the result of road work and the repair was either inadequate or as-of-yet incomplete, the agency responsible probably had a duty to offer adequate warning to those who might be caught in it. Was it something that had been around for a while? If the hole out there was just the result of wear-and-tear and weathering, the city would have a “reasonable” amount of time before its duty to repair kicked in. If the pothole had been there for just a few days, you probably don’t have claim. If it’s been there for months and growing worse, a reasonable schedule of road inspections would shift the duty to the city to repair it. From the sounds of it, anything big enough to – as you put it – ” almost completely swallowed my front wheel” might have been there for a while. Have there been other accidents or complaints? A search of public records – usually available under state open records laws – should show if there had been complaints about the hazard. Accident records from the same scene would also provide you with additional firepower if you opt to sue the city.

I am assuming, from the description of the incident, that it took place within city limits. Filing a lawsuit against a city is easier than it is to sue a state agency. It’s an important distinction, because a state agency can claim immunity under the 11th amendment of the U.S. Constitution, while a local government entity can’t. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The only exception might be if a local government was carrying out duties mandated by the state, but blowing off road repairs probably wouldn’t fall under that exception, now would it?

Again, there are a lot of issues that come up in your case and I really believe you do need the assistance of an attorney, whether that’s provided by your insurance company (if the electric bike woman sues you and you’re covered) or a lawyer you hire on your own.

Finally, thank you so much for the kind words. I am not sure how impressive it was that I kept writing, but I appreciate the sentiment. I think I was largely motivated by fear, huge monthly COBRA payments and a touch of boredom. Anyway, all of that is behind me. I went for my first post-chemo quarterly check-up on Friday and the news continues to be good. I am really grateful to you and to others who have expressed support and encouragement over these past few months. Here’s hoping the subject doesn’t come up again, though.
— Charles

P.S. In scouring the mail box for a possible topic this week, I ran across one suggestion from Red Kite’s own Padraig. Long story short, Padraig is a fan of something known as the “stop-as-yield,” meaning that cyclists be granted an exception to the rule that vehicles come to a complete stop at stop signs. Conversely, I am not much of a fan. Would there be interest in a point-counter-point debate on the subject for next week’s column? If so, let me know and weigh in with your own opinions on the subject by sending me an email at Charles@Pelkey.com.

The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

Follow me on Twitter: @Charles_Pelkey

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12 comments

  1. D.

    I wonder how the sentence above might complicate a claim?

    “It was foggy – and so were my glasses – and I didn’t see the thing until it was almost too late.”

    If any of this post were to enter into litigation, that line would interest defendants, perhaps.

    Best of health and luck to both of you,
    -D

  2. GRJim

    Not a fan of a stop and yield vs. stop debate as these things apply locally to local habits. In Boston or NYC you’d have guys who’d rather shoot you than yield. Might make sense in a sparsely-populated town but, taking a driver’s point of view, might lead to unexpected quick stops and rear-ending. It’s gotta work for everyone.

  3. Steve Bauer

    Without fail, when I am among people I do not know and the question comes up…”what’s your hobby?” I’m immediately told “oh, I hate cyclists not stopping for stop signs… You guys think your above the law!” I ask “do you own a bike?”. Most people do…”ever ride it?” Most people do. “stop at every stop sign?”. No one does. Watch folks on cruisers in your neighborhood some time. Do they stop? Rolling a stop sign on a bike is a human thing, not a cyclist thing. It’s no different than jay walking. Whether we are cyclists or not, we’ve all done it for reasons as infinately varied as haste, inattention and naked expedience. Motorists don’t like it because they don’t like us being in their way and they dont like our freedom to flout their rules. Changing the law won’t change the attitude. Think of how annoyed you get with the motorcycle that whizzes past you in a traffic jam. Does the fact that it’s legal (at least here in Cali) lower your blood pressure one bit? It’s the motorcyclists freedom you resent while you are manacled hopelessly to the rules in your motionless automobile. Getting ahead of someone else in line, however done, even if you don’t slow them down just ain’t that endearing to anyone. If I’m paying attention I try to keep that in mind. But I must admit I’ve let my instinct override my brain a time or two or twenty thousand.

  4. Brian

    @Steve Bauer,

    > “stop at every stopsign?”

    Why yes, yes I do. :) Even when I was living in a major northeast city going to school, I (and a very small subset of the guys I trained with) stopped at every light and sign. In addition to not adding fuel to the stereotype, I got a nice side benefit from it: despite my build as a natural climber, I developed a pretty respectable initial jump and short- to medium-length sprint, and could hold my own against a lot of the more traditional sprinters at the end of a race.

  5. Ransom

    My dubiousness toward yield-as-stop comes from my impression that a lot of pedestrian/cyclist/driver/etc strife arises from failure to acknowledge the body language of one’s actions.

    And not just for pedestrians. Cyclists, and even cars, say a *lot* about what they’re about to do by lane placement, speed, where they’re looking. Ever clip out and put a foot down or turn your handlebars to the side just to make it clear to a car that you’re not about to take off in front of them? To a non-cyclist, a trackstand looks like preparation to sprint…

    I know that I can approach an intersection at 20mph and scrub it all to a stop very quickly, but if I wait ’til the last second to adjust my speed, it looks for all the world to anybody else at the intersection that I’m going to blow the sign. Same thing’s true for cars, of course, and I’m sure not going to ride or walk in front of someone who hasn’t started slowing…

    There are many facets to the body language thing, but it would take a lot of adaptation and a lot of improvement in general habits before I think that we can have that greying of the stop/yield thing.

    Perhaps if it was only in areas with very clear visibility and part of the law was that if there was *nobody else* visibly close to the intersection you could slow, but needed to stop if there was any danger of confusion…

  6. Champs

    I do my best to clarify the situation by acknowledging to crossing traffic that they have the right of way at an intersection, but NOBODY does a full stop if they can get away with it. Not in a car, not on a bike.

  7. Randolph

    Stop and yield is the defacto behavior where I live. Nobody in a car, on a motorcycle, on a bike, even walking stops at a stop sign when no other vehicle is near. Well, nobody except my sweetheart. Generally we slow, look, listen, and accelerate through if it’s clear, stopping is a last resort. Granted, it’s the “country”, or at least used to be, now inside the creeping edge of suburbia. Changing the law to sanction this behavior would probably make us more lax.

  8. ervgopwr

    Two points: Good luck to Mitch, and go after FedEx before your city, it would be easier. I think.

    Point two: Think deeper about the stop/yield issue. Think about why we have stop signs. Because cars can travel so fast and their impact at intersections so great/disaterous that they have to be restricted to such a degree that FULL STOP is the appropriate action.

    But bikes and peds operate at a more human level/speed differential. Eye contact is available as is voice recognition. Now of course volumes and speeds will differ at many locations, but the spirt of the Idaho stop laws is to put the person on bike at a higher level and perserve their precious momentum while recognizing it won’t work at all times.

    I’m always in favor of more roundabouts, and the stop/yield for people on bikes would just reflect the reality better. Acknowledge that a two-ton machine is lethal and has an engine to get back up to speed.

  9. Conrad

    Regarding the second point:

    The way I see it- we all bend traffic rules, whether we are on a bicycle or driving a car. The nature of the vehicle dictates which rules get bent. Does everyone drive the speed limit 100% of the time in a car? No, because it is so easy to drive over the speed limit and often reasonably safe to do so. Rolling through a stop sign on a bicycle is not as egregious as rolling through one in a car because the bicycle is usually going to be approaching at a slower speed and can see/hear other vehicles or pedestrians much easier.
    The bigger issue is the consequences of bending the traffic rules. If someone messes up behind the wheel of a 4000 pound vehicle, they are going to hurt or kill someone, and it happens every day. If someone messes up on a bicycle, they are probably only going to hurt themselves.
    This is why it makes me crazy when I hear that same old complaint from your non-cyclist friends and neighbors about cyclists that roll through stops. I’m not saying its okay for cyclists to bomb through intersections but I think its okay to safely proceed without stopping if conditions warrant. How often do vehicles come to a complete stop? How often do they drive the speed limit? How often do they pass me with 3 feet like they’re supposed to? How often do cyclists hit and kill other people?

  10. Clark

    Looks like the stop/yield debate won’t be waiting till next week’s column. If I may offer my view on the matter: If I can avoid unclipping by slowing nearly to a crawl when cars are present, I will. If I can’t avoid unclipping (the track stand eludes me), I put a foot down and wait my turn. At any intersection where a driver is or could be present, I will make a point to wait my turn. Sure, I’d love to keep my speed up and roll through, but I don’t for two reasons. First, I refuse to let a cop I didn’t see make an example of me by issuing a ticket for rolling the stop sign. And second, cyclists need drivers’ goodwill more than they need ours. The next time I’m trying to get through traffic from the bike lane/right lane over into the left-hand turn lane, I hope the cars behind me will make it easy on me because they’ve seen riders like my playing by the same road rules they’re bound to. Until the law says otherwise (and make no mistake, I would welcome that day), equal rights on the road come with equal responsibility.

    Bottom line, I’m not going to tell another rider how to live their life. I would however, like everyone to understand that a brief pause at a stop sign can result in better treatment from drivers throughout the rest of your (and my) ride.

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