The Explainer: Close encounters of the pothole kind
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.
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.
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.
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