The Explainer: Whacking a salmon

Dear Explainer,
I think this is probably a topic you don’t deal with all that often, but I am an avid cyclist, a bike racer, a commuter, a cycling advocate and more. In short I am a bike geek … and think I am about to be sued for hitting a guy on a bike with my car.

About a month ago, I came home from work and had to run to the store for groceries. I grabbed the car, did my shopping and began my trip home again. At the end of the parking lot, I made a right turn and bang: I ran right into a guy riding his bike against traffic.

He bounced off my hood, fell to the curb and broke his arm. His bike was destroyed. The police came, I told my story, and so did a couple of witnesses. The cops didn’t write a ticket to anyone and the guy was taken to the hospital. I felt awful for the guy, but I don’t think I did anything wrong, at least in a legal sense. I keep thinking back and wondering why I didn’t see him when I glanced to my right when making the turn.

Anyway, yesterday I got home and I found a letter from a lawyer trying to tell me that I was responsible for the guy’s injuries and that he wants to be compensated for his medical costs, his bike, loss of income and “pain and suffering.”

What the @#$&? What did I do wrong? What am I supposed to do now?
– Andrew

Dear Andrew,
Man oh man – to quote a recent president – I feel your pain. As a cyclist, it’s my major pet peeve, since these boneheads not only put themselves at risk, they give the rest of us a bad name. I live in a college town and, especially around campus, there are hordes of young, seemingly oblivious, undergrads who seem to think that riding on the left side of the road is somehow “safer” because “I can see what’s coming.”

It’s not just a bad idea, it’s against the law.

Unfortunately, that myth fails to take into account the reasons it’s not safe, namely the situation you just described. There are other hazards, including faster closing speeds and the need for greater braking distances. But most of our readers are relatively experienced cyclists, so I don’t need to rehash all of those. Most of us know to ride in the same direction as the flow of traffic.

Still, we’ve all seen people – most of whom are not avid riders – who insist that riding against traffic is safer. Telling them otherwise, especially when you’re on the road, often results in the extension of a single digit in your direction. I actually had a collision involving similar facts, except I was on my bike and got creamed by a wrong-way rider at an intersection. (Apparently, he not only believed that he could ride on the wrong side of the road, but that since the stop sign wasn’t facing him, he wasn’t constrained by that rule, either.)

So, if your description of events is accurate – and for purposes of this answer, let’s assume that it is – you didn’t do anything wrong. Nowhere in these United States is it legal for a cyclist to ride against traffic. The cyclist should have, despite his injuries, been ticketed for that. Maybe the cop felt sorry for the guy and didn’t write him up because he was getting hauled off to the hospital. The bottom line is that all cyclists have the same rights and responsibilities as those operating a motor vehicle on a public road. Those responsibilities include obeying applicable traffic laws and, no, riding against traffic is not an option for cars, so it can’t be for bikes.

Anyway, let’s start with the letter. My first bit of advice is don’t sweat it. It’s probably a shot over the bow and little, if anything, will ever come of it.

That said, do not blow it off, though. The first thing you need to do is contact your insurance company. Actually, I am surprised that the guy’s lawyer didn’t contact the insurance company directly, instead of bothering you with this claim. He certainly should have. I do have to assume you have liability insurance on your car, since you probably would have been ticketed for that had you been driving in an uninsured vehicle.

It sounds like the amount of the claim will fall well within even the most minimal liability coverage, so you’re good to go. Your insurance company is responsible for paying any claim and, as will probably be the case here, rejecting those that aren’t valid. If there’s a lawsuit, the insurance company handles the defense, although you will need to make yourself available in the unlikely event this thing goes to trial. If you do have liability insurance, your insurance company will end up doing all the background work.

Now, on the off chance that you don’t have insurance, you may have to do some of that legwork yourself. First, contact the police agency that handled the accident and see if you can get the officer’s report of the incident. There is a chance that the rider was, in fact, ticketed at the hospital.

Even if there weren’t citations issued, there should be an accident report and you have a right to see that. Hopefully, the report will note that the rider was traveling against the normal flow of traffic. If so, you’re in pretty good shape. Still, I would advise you to seek legal counsel at that point. If you’re going to get into an argument with someone who has a lawyer on his side, you may need to get one yourself.

Again, if things are as you described and the police report notes that the cyclist was at fault, your lawyer may be able to solve this thing with a response letter that points out that it was the victim’s failure to comply with traffic laws that caused the accident and not your negligence.

If the police report doesn’t mention that the rider was violating applicable traffic rules, you may have a problem. You mentioned that there were witnesses and that can prove helpful. I’ll guess that you didn’t get their contact information, but again, that should be in the police report.

If you are sued, the plaintiff – the cyclist – will have to show that you were somehow responsible for the accident. He’ll have to show that the accident occurred do to your negligence and not his. From the sounds of it, that will be a pretty big hurdle for him to overcome.

Like anyone behind the wheel of an automobile, you have what is called a “duty of care,” to anyone else out on the road. You “breach” that duty by not acting in a reasonable fashion when you’re driving and if that breach is a cause of someone else’s injury, then you can be found negligent and will be ordered by the court to compensate the victim.

But in your case, you appear to have been operating your vehicle in that reasonable manner and it was he who violated his duty of care by riding his bike against the normal flow of traffic. Indeed, if by being hit by your car, he somehow damaged it, you could have reason to file a counter-suit.

Again, if you have the requisite insurance coverage, you won’t have to worry about any of that.

Good luck and let us know how it turns out.
– Charles

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11 comments

  1. Bobroberto

    Any damn fool that doesn’t fall off thinks they can ride bike. Heading up stream in traffic, Salmoning around here, is a constant hassle, everyone knows somebody who hit or missed a salmoning cyclist Yeah, I have taken a shortcut now and then, but always checking around knowing this ain’t right way to ride. Guess I really am a retro grouch. As a kid in order to license my bicycle I had to show the guys at the local firehouse that I could handle the bike, knew hand signals, and answer several questions orally. Then the bike was made street legal with a miniature Colorado license plate fastened by tamperproof seal to the seat stays. Among the neighborhood kids this was a serious badge of accomplishment as we rode the streets, alleys, campus roads and walks and along the paths by the river.

  2. Seth

    In my opinion, if I’m riding in the bike lane and someone is riding towards me on a bike going the wrong way, I’m not going to be the one that has to swerve into oncoming traffic.

  3. John Kopp

    It is my understanding that liability insurance is not required to ride a bicycle on public roads. But if involved in an accident, what coverage would we have? Am I covered by homeowners insurance that includes liability? I always assumed it would, but this makes me wonder..

    I collided with a vehicle about two years ago and went to the emergency room with a strained back injury. The driver was cited for hit and run, and his insurance covered all my costs, but I have wondered about my liability since then if circumstances had been somewhat different.

  4. Randall

    In Germany, where I live, the city area has many marked one-way streets that have specific markings to allow two-way traffic. I do choose to legally ride against traffic occasionally, but it is quite dangerous. Cars do not see you. Delivery trucks potentially can’t see you. A flip over the hood and a broken arm get way worse if you go under something like a vehicle.

    To John, I did a bunch of research about homeowners insurance after someone hit me (not my fault). You better check, because your liability insurance may only cover your property. After asking a list of questions ( 1- I hit you with my bike, 2- my dog bites you, 3- I get angry and break your nose), I picked up personal liability insurance.

  5. Debbie in Alamo Heights

    I wouldn’t minimize Andrew’s potential liability in this case. If his accident happened in a state with proportionate tort liability, the cyclist could recover even if his conduct was negligent, negligent per se, or stupid. All his lawyer would have to do is to show that the greater proportion of the cause of the accident (>=51%) was Andrew’s failure to exercise ordinary care. Would a reasonably diligent driver have seen the wrong way cyclist in the same circumstances? Are wrong-way riders known to ride in the area? Would a reasonably prudent driver pull out into a cyclist who was traveling the wrong way on a roadway?

  6. Conrad

    Not too long ago on the way home from work I made a left hand turn into an oncoming car that I did not, but should have, seen. I hit the front of her car, went over the bars, crumpled/bounced off the windshield, and landed on my feet. I was really lucky to not have even a bruise myself. My bike, an old Serotta Colorado II, was salvageable aside from the fork. The woman in the car and I exchanged information. Her business card says she is an attorney. I filed a report with my insurance company.
    I’m thinking me or my insurance should be paying for the windshield and nice dent in the hood, since it was my fault. So far I haven’t heard anything from anyone. I’m wondering if they’re just covering it because they’re afraid I’m going to sue them? I don’t know if I should call her or not.

  7. John Kopp

    Randall, I checked with my insurance company, and I would be covered as far as liability goes. I read my policy, but only Pelkey could understand that (Ha ha), so called. One can’t be too careful on the public roads.

  8. Khal Spencer

    My only question to Charles is this: what is the standard of due care for looking to the right for wrong way riders? Was there, for example, a sidewalk along the road and should the driver have seen the salmon while looking both ways for pedestrians? Or, is there no expectation to be watching for stuff that should not be happening? I would hate to see Andrew or his insurance company have to shell out money to an idiot.

    Its a significant safety issue. As a motorist, I expect to see salmon because it is such a prevalent error in judgement. As a cyclist, I hate playing chicken with them in traffic. I once nearly hit, head-on, a salmon who was riding at night without lights. I was riding a hard training pace home from work down Kalanianaole Highway (East Oahu) and only a Nightsun Team Issue on high beam and a gap in auto traffic gave me the ability to avoid a pretty bad head on crash. I wish the police would cite these people rather than ignoring them. As long as there is no enforcement and no education, one can expect these incidents.

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