November 13, 2014 § 24 Comments
It’s a common question with a short answer: Yes.
Here’s the scenario: You come up with a new course and invite your friends to join you. It’s the classic “group ride” with no waiver, no rules, no controlled access to the course, no referees, no ambulance on stand-by, and no entry fee.
The guy who invites his buddies to the beatdown wants to know, of course, whether or not he can be sued if someone falls off his bicycle, gets hit by a car, or gets taken out by another wanker.
The easy answer of course is “YES.” Anyone can sue anyone for anything at any time. Pay the filing fee and it’s game on. But the real question is whether or not the plaintiff will win. And it all starts with something called assumption of the risk.
In California, if some wanker sues you because he fell off his bike during the Thursday morning beatdown ride that you mentioned on Facebook, your best defense is assumption of the risk. In common language, this means that if you’re dumb enough to do it, don’t come whining to the judge when you get hurt.
Technically, it’s more, well, technical. After your former best friend sues you, and you’ve become the defendant, you move for summary judgment on the basis of primary assumption of the risk. This is a fancy way of saying that you’re asking the court to kick the case out the door before it ever goes to trial because you can show that you owed no legal duty to the whining wanker to prevent the harm that he’s now complaining about.
If you can show that the wounded wanker expressly assumed the risk, then you have a complete defense to his negligence lawsuit. Of course, the group ride is exactly the scenario in which you won’t have a signed waiver, or even a speech advising everyone that they’re about to engage in something that may maim or kill them, so proving an express assumption of the risk may be contentious. One way you can protect yourself is by admonishing everyone at the start of the ride that they’re voluntarily assuming the risk of death or catastrophic injury. Another way, of course, is making people sign a waiver.
The rationale behind the assumption of risk defense is that you owe no duty of care to protect a plaintiff against the risks inherent in a particular competitive sport voluntarily played by the wanker, absent some reckless or intentional misconduct. For cycling, falling off your bicycle is unquestionably an inherent risk of riding in proximity to other wankers. The only thing that a defendant may not do is increase the risk of harm above that inherent in the sport. For example, tossing hand grenades into the peloton, or intentionally knocking someone off his bike to “teach him a lesson,” or pushing someone off a cliff on a descent.
The ordinary stupidity that most wankers exhibit on a group ride isn’t enough for the whining wanker to win his lawsuit. California courts have said that “[i]n some situations, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff.” So, when there are 85 knuckleheads on the NPR, many of whom still don’t know how to ride in a straight line, you can’t sue someone because you got knocked off your bike.
Whether the primary assumption of risk doctrine applies doesn’t have anything to do with whether the whining wanker behaved reasonably. It’s a question of law that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.
In other words, group rides involve riding proximately to unskilled idiots, lots of them. It is inherent that if you’re going to hammer your bike on a public road next to some bonehead, said bonehead may inadvertently chop your wheel, whack into you from behind, or barf onto your handlebars. The law says, “Tough shit.”
Generally, the primary assumption of risk doctrine applies in a “sports setting,” and an organized, noncompetitive, long-distance bicycle ride is one of those sports activities to which the primary assumption of risk doctrine applies. The case of Moser v. Ratinoff basically held that you can’t sue a fellow wanker who takes you out on a group ride when the person who knocked you off the bike was just an ordinary idiot. Remember when your mom told you that if you hang out with dope smokers you’ll be a pothead, too? Same deal.
There are a number of cases involving sports activities in which the court found a primary assumption of risk. Snow skiing, water skiing, ouch football, collegiate baseball, off-roading, skateboarding, golf, lifeguard training, tubing behind a motorboat, wrestling, gymnastics stunt during cheerleading, little league baseball, cattle roundup, sport fishing, ice skating, football practice drill, judo, rock climbing, river rafting, and sailing have all been found to be activities where the assumption of risk applies.
Now I know what you’re thinking, and I am, too: “GOLF IS NOT A SPORT.” But the judge says it is.
In some other recreational activities, courts have held that there was no primary assumption of risk. Boating passenger and recreational dancing cases in California allowed the whiny plaintiff’s case to proceed, but it’s my opinion that the embarrassment of having to admit that you’re a recreational dancer totally negated the value of any money awarded in the litigation.
Primary assumption of risk applies to competitive sports and to noncompetitive recreational activities as well, such as a ski boat driver towing a water skier. Like competitive sports, vigorous participation in noncompetitive sports would likely be chilled and the nature of the sport altered if liability were to be imposed for ordinary careless conduct. This has particular meaning for your informal group ride beatdown, which may not technically be a sporting race (especially given all the wheelsuckers who will cut the course).
An activity falls within the meaning of “sport” if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. So, not ballroom dancing, but yes, the Thursday ride. You can get whacked by a car. By a co-wanker. You can slide out on the wet spot on the descent on the golf course. Hit a peacock. Slam into the curb while ogling the hot chick in front of you. Thrill, physical exertion, and risk of injury are all present.
Although bicycle riding, like driving an automobile, can be a means of transportation, “organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. Bicycle rides of the nature engaged in by the parties here are activities done for enjoyment and a physical challenge․ In view of these considerations, the organized, long-distance, group bicycle ride qualifies as a ‘sport’ for purposes of the application of the primary assumption of risk doctrine.” The court in Moser basically said that big, organized group rides are a sport. Incredible, but true.
But before you get too happy, recall that you’re not allowed to do anything to increase the risks inherent in the activity. Although defendants do not have a duty to protect the plaintiff from risks inherent in the activity, they do have a duty not to increase the risk of harm beyond what is inherent in the activity. Analyzing the liability of other than co-participants requires defining “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.”
In other words, you can’t take the tackle out of tackle football, but neither can you let people play it with handguns.
But a defendant may not increase the likelihood of injury above that which is inherent, and conduct is not inherent in the sport if that conduct is “totally outside the range of ordinary activity involved in the sport [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.” A participant injured in a sporting activity by another participant may recover from that coparticipant for intentional infliction of injury or tortious behavior “so reckless as to be totally outside the range of the ordinary activity involved in the sport” but not for mere negligence.
In the group ride context, you can’t intentionally take someone out, but you can apparently be a wanker. Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. So if you’re showing up for the 6:30 AM ride completely soused, and you accidentally push a pal into oncoming traffic, expect a lawsuit.
But what about cyclocross, which ordinarily can’t be properly done without beer? The Supreme Court of California has yet to rule on such a thorny issue.
Going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. The analogies derived from the risks in other sports suggest that one cyclist riding alongside another cyclist and swerving into the latter is a risk that is inherent in a long-distance, recreational group bicycle ride.
I’d argue that it’s inherent in your local group beatdown, too, but to be safe you should take the time to mention it.
So what does it all mean? In general, people who participate in informal group rides appear to be protected in California by the doctrine of assumption of the risk. This doesn’t mean you won’t get sued, it just means you have a fairly solid leg to stand on when you have to defend.
Disclaimer: This isn’t legal advice for you or your case or your upcoming ride. It’s general legal advice. No attorney-client relationship has been created between us without a signed retainer agreement.
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May 29, 2014 § 63 Comments
Last fall a movement began. A handful of riders in the South Bay stopped playing gutter bunny on Pacific Coast Highway and took their rightful place in the lane.
It was like the Prague Spring of 1968, and repressed cyclists, long confined to the detritus of the roadside and the terrorization of buzzing motorists, rode smack in the lane, forcing drivers to slow down and pass them, safely, in the left-hand lane. It caught on.
The justification for selecting the dominant position in the lane was legal and practical. Under California Vehicle Code Sec. 21202, bicycle riders are required to ride as far to the right as practicable unless the width of the lane is such that a bike and car cannot safely share the lane. As everyone who rides PCH knows, the narrow lanes (often less than 11 feet wide) make it lethal to coexist in the same lane with trucks and their tow mirrors, trailers, boats, buses, big-ass SUV’s, and even ordinary passenger cars.
Before long, the South Bay’s biggest, most visible, and most activist racing club, Big Orange, was leading all of its Sunday rides on PCH in the lane. Riders who were initially doubtful about the safety and benefits of riding in the lane rather than cringing in the gutters as they dodged nails, glass, rocks, cracks, garbage cans, and the rear-ends of parked cars, became believers.
At its height Big Orange was towing 70 to 80 riders in an orderly 2×2 formation down the best bike lane in America: the right-hand lane of PCH.
Trouble in paradise
That all came crashing down one Sunday last October when the ride, being led by Greg Leibert, was pulled over by a pair of sheriff’s deputies in a squad car. G$ was cited for violating CVC 21202 — failure to ride as far to the right as practicable.
Discussion was fruitless. When G$ whipped out his handy-dandy copy of the vehicle code, one deputy advised him that “I been writing these tickets for 20 years, I know the law, and you’ll never beat it.”
For this law enforcement duo, the sight of so many riders behaving like cars was too much. Despite the clear language of the law they slapped G$ with a citation.
In one fell swoop this single ticket turned the victorious PCH Sunday riders back into gutter bunnies. All the talk about how it was legal to control the lane was overcome with one traffic ticket. Who wants to go out for a Sunday ride and come home with a fine that runs into the hundreds of dollars?
With the same force of Leonid Brezhnev’s tanks rolling into Prague, the L.A. County Sheriff’s Department had crushed the cyclist uprising.
LA County Bicycle Coalition to the rescue
But G$ wasn’t going down without a fight, and he had an ally in Eric Bruins, policy director of the Los Angeles County Bicycle Coalition. Eric had been working for months to arrange a meeting with the captain of the Agoura Hills Substation, which has jurisdiction of PCH all the way from Santa Monica to the county line.
When Captain Pat Devoren met with Eric, me, and Dr. Gary Cziko earlier this year, I laid out our chief complaint with riding on PCH: the lane was the only safe place to ride, it was legal for us to be there, and the sheriff’s department was illegally writing citations. After a few minutes, Captain Devoren raised his hand and smiled. “Guys,” he said, “I get it. I’m a bicyclist.”
We all looked at each other in amazement. A bicyclist in charge of law enforcement on PCH? The dogs must be crazy.
We continued the discussion for a while with Captain Devoren –an incredibly polite and professional man — and the sergeants who were also in the meeting. Some skepticism was expressed that riding in the lane was safe, but when we detailed the dangers of riding in the gutter, they agreed. “Anyway,” one of them said, “it’s the law.”
At the end of the meeting Captain Devoren told us that he would inform his deputies regarding the proper interpretation of CVC 21202 and that henceforth cyclists would no longer be cited for failure to ride to the right on those sections of PCH where doing so was unsafe, hazardous, or where the lane could not safely be shared with a car. The three of us walked out of the meeting in a daze. We felt like we hadn’t so much won a battle as gained an ally.
It was too good to be true but … there was still that matter of the ticket.
G$ and I showed up in Santa Monica traffic court on Tuesday morning. He had pled “not guilty” and we were going to try his case in front of the judge. Rather than descending into a he-said, she-said confrontation with the officer who wrote the ticket, we came armed to the teeth with two of the finest expert witnesses in the business.
It was the largest display of legal firepower to fight a traffic infraction that the court had seen in a while. Dr. Gary Cziko was going to be our first weapon, beating back the state’s assault on our right to ride in the lane with his unpronounceable last name. The strategy was that by the time the court had figured out how to spell it, then say it properly (Psycho? Seeko? Cheeseko?), they’d be so tired of the case that they’d acquit just to move things along.
If the slavic name stratagem failed, Gary had brought three gigantic exhibits showing the amount of space in lanes of varying width when the lane was shared by a bike and a vehicle. These exhibits would clearly demonstrate how deadly it is when a bike has to be in the lane on PCH with a fast-moving vehicle.
We planned to lay a foundation as to Gary’s expertise in cycling safety by pointing to his three decades as a professor of educational psychology at the University of Illinois, his certification as a cycling instructor by the League of American Wheelemen and Cycling Savvy, and the scruffy patch of unshaved facial hair he’d missed in his morning shave.
We would further cement his qualifications as a cyclist to opine on the safety of the lane where G$ was ticketed by pointing out the bike helmet he brought into the courtroom, his giant commuter backpack, the strap around his ankle to keep his slacks out of the chain, and if necessary we’d take the judge out to the front of the courthouse where he could see Gary’s commuter rig chained to the flagpole, a misdemeanor. (Kidding. Gary would never chain his bike to a flagpole.)
After putting on the killer testimony of our hired gun Dr. Cziko, we planned to storm the battlements with the erudite and nattily-dressed Eric Bruins. Eric would testify regarding safe lane widths, standard lane width determinations under a variety of federal design regulations, and would further opine that the point at which G$ was ticketed could not have been safely occupied by a bike and a vehicle, and therefore G$’s decision to control the center of the lane was legal and defensible and the safest possible option.
After stabbing the twitching carcass of the police state with these sharpened harpoons, we planned to save the final bludgeoning to the head for last. We would put G$ himself on the stand.
In preparation for his testimony, our hero had shaved, brushed his teeth, bathed, put on deodorant, whacked the four inches of dust off his blazer with a carpet beater, and taken a 2-hour YouTube course on “How to Tie a Necktie without Strangling Yourself.” He was clean and buffed, his hair was combed, and he had even decided to wait until after the trial before re-dying his hair with his signature electric orange coiffe.
I had spent the previous six months preparing for this momentous trial, which I knew would be the defining moment of my career. I’d carefully analyzed every detail of the seminal CVC 21202 Supreme Court case, Pooky v. Festersore. In Pooky, cyclist Blood E. Festersore had been cited for “running” a red light. The arresting officer, Fluffer Pooky, had cited him for conspiracy to overthrow the government and Festersore received a life sentence.
In its landmark decision, Justice Antonin Scalia, writing for a unanimous court said this: “Guns. Benghazi. Obamacare is for commies.”
Victory for the little people
As the court came to order, Judge Kahn looked up. “The following cases are dismissed due to the citing officer’s failure to appear for court today. Case No. 292811, Greg Leibert.”
We threw our hands up in the air and began hugging. G$ broke down into uncontrollable sobs, relieved at the thought that he wouldn’t have to pay the $221 fine, and would only have to pay $4,000 for my legal services and $15,000 in expert witness fees.
Camera crews from CBS, NBC, and Pornhub.com captured every moment of the victory celebration, and the other people in court, although they would have clapped, instead cursed and threw cigarette butts at us for being lucky enough not to have to go to trial. After interviews with major news media, we went over to a coffee shop to debrief.
Everyone was amazed at the withering cross examination I would have unleashed, and we thanked Eric and Gary for the devastating expert testimony that they would have used to crush the state’s case. The credibility and forcefulness of the testimony that G$ would have given was so brilliant that we clapped him on the back for how great he would have been and how amazing we would have felt listening to him.
Of course the true import of Greg’s case is that as a result of our discussion with Captain Devoren, the Sheriff’s Department appears to have accepted that controlling the lane on PCH is in fact legal, and CVC 21202 citations will not be issued for riders who safely and legally occupy the full lane. Let’s hope that riders will begin to take advantage of this new development, and get back to the joyful days of last fall, when we could, with nary a care in the world, cruise the best bike lane in America.
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July 16, 2013 § 22 Comments
I had just finished charging up Silver Spur on my ‘cross bike, newly equipped with very big, very urban commuter tires. My new training mantra is “make it an interval,” which means “pound whenever you can.”
We’ll see how long that lasts.
Although I didn’t know that I’d set one of my fastest times up the first portion of this beast (Strava segment here), on fat tires, no less, I knew I’d gone up it fast (for me) because my legs burned the whole way up. I crested the top and kicked into glide, gulping in the air and feeling the waves of acid in my legs dissipate.
I felt great.
Let’s get Jr. something he’ll be safe in
About a hundred feet before the ARCO at Silver Spur and Hawthorne, a Toyota ForeRunner blew by me with about six inches to spare, barely missing my shoulder with the mirror, then slammed on the brakes and made a hard right into the gas station.
I pulled up behind the car, which was about ten years old, and waited for the driver to exit. He hopped out and looked surprised — but only for a split second — to see me there.
“Hi,” I said.
“Hello,” he answered. He was about seventeen and wearing a floppy white t-shirt, saggy shorts, and flip-flops. You could tell he had just gotten up because after all, it was almost noon.
“You passed me with a few inches to spare and came pretty close to hitting me.”
“I did?” He tried to look concerned as he sized me up. “I must not have seen you.”
“Really? I was in the middle of the lane.”
“I’m so sorry, but it’s a good thing I didn’t hit you, right?”
“Yes, it’s a very good thing. You might have scratched your car if you had.”
“Yeah,” he said, uncertainly, then brightening as he understood how lucky he’d really been not to scratch the car.
“How could you not see someone in the middle of the lane? Were you on the phone?”
“No.” Then he threw away the pretense as he realized that I wasn’t angry and therefore no longer a threat. “Look, I have an issue with you cyclists.”
“Yeah, really. You guys get out in the way of cars and then we have to swerve at the last minute to keep from hitting you. It’s really dangerous.”
“Yes, it is. Are you aware that we have the legal right to be in the lane along with cars like yours, even cars that parents have bought for their somewhat selfish and spoiled children?”
“Sure, I know you have the right to be there. Look, I’m really sorry.” Everything about his tone, his face, and his posture said he wasn’t sorry at all, and that now he was annoyed.
“You don’t look sorry. You look annoyed, as if I’m bothering you.”
“Look, mister, I said I was sorry. You’re lucky I didn’t hit you. I had eye surgery the other day. I can’t see very well. When I saw you all I saw was a blur.”
“I thought you didn’t see me.”
“Can I just go inside and get my Coke? You’re harassing me, mister.”
“Really? You consider being spoken to in a civil tone of voice after coming close to killing someone ‘harassment?’”
“Do you want me to call the police?”
“I don’t want you to do anything other than pay attention to bicyclists in the roadway. They’re not all as skilled as I am. A little wobble and I’d be in an ambulance right now. But if you think the police will help facilitate this conversation, by all means call them. I’ll be interested to see what happens when they ask to see your I.D.”
Now he was paying attention, fully. “What do you want me to do? How many times can I say I’m sorry?”
“I want you to think about something.”
“I want you to think about your dad.”
“What about him?”
“How old is he?”
“I turn fifty in a few months.”
“Would you have done what you just did, and would you be speaking like you’re speaking right now, if it had been your dad on the bike?”
He looked at me. “No. But you’re not my dad.”
“I suppose we can both be grateful for that, right?”
He was uncertain again. “Right.”
I got back on my bike and rode off.
February 3, 2011 § 4 Comments
One of our tried and true South Bay cycling veterans got hit by a car yesterday in Santa Monica. Our guy had stopped at the red light, put his foot down, and waited for green. He got the signal and began making a left hand turn. Idiot motorist apparently blew through a red light and hit him head on. Our guy has a fractured C5, lacerations and stitches on his leg, a bike in ten thousand pieces, and a long, brutal road to recovery ahead.
Idiot motorist probably has a few scratches on the hood of his wagon and perhaps some pangs of guilt. But the real question is, does he have insurance? Our guy is going to have a mountain of medical bills and lots of missed work.
This accident brings onto the stage a grisly drum I’ve been beating for the last year now. Below is a reprint from a short article I posted on the Big Orange Cycling Yahoo newsgroup. Please read it and take action. The ass you save is going to be your own.
How to save your ass when the motorist who runs you over is also an uninsured or underinsured deadbeat shitforbrains
At my office we’ve taken in a number of bike-car accidents in the last year, everything from trashed bikes to people who are never going to walk properly again to people whose last action on this earth was pedaling a bicycle. What follows is some advice that I hope you’ll heed.
Most people think that if they’re in a bike-car collision, they’ll be able to recover money from the driver as long as the driver is insured. What you may not know is that in California, the minimal insurance coverage for accident liability is $15,000. What you also may not know is that 85% of the drivers on the road have this minimal coverage. This means that their insurance company is on the hook for $15k, and that’s it.
To put it in perspective, the money you can recoup from the careless idiot who took you out while sexting his girlfriend a “Brett Favre” evaporated on the life flight trip to the hospital, and once your expenses exceed the $15k that most drivers carry, you’re done. That’s the bad news, and it’s very, very real. Imagine how hard it is as a lawyer to tell someone who’s been trashed for life that their recovery won’t pay for their first day of medical care…then imagine how hard it is for the victim who has to actually live through it.
There is, however, a very cheap and very effective way to protect yourself and your family. It’s called uninsured motorist or underinsured motorist coverage, and it comes standard with almost every auto insurance policy. Many cyclists are unaware that this coverage on their own auto liability policy even exists, and many more are unaware that it covers them in a bike-car collision when they’re not even in the car.
This means that when idiot’s policy tops out at $15k, you have the legal right to turn to your own insurance company for the remainder. So far, so good, but there’s a catch: most UM coverage is also minimal, often only $15 or $25k, which is hardly enough to make you whole when you suffer significant injuries.
Unlike most insurance stories, though, this one has a very, very happy ending if you’re proactive about it, because you can increase your UM coverage to very high levels for only a tiny increase in your monthly premium. Although your UM coverage is generally barred from exceeding your liability coverage, if you have $500k worth of liability you can bump up your UM from $25k to $500k for only a few bucks.
For the sake of yourself and your family, take a minute to look at the face page of your insurance policy, check the UM coverage, and then call your agent to ratchet that sucker up to the max. With the spate of deaths and serious injuries occurring in our midst this past year, this is something you can’t afford to put off.
The other benefit to turning to your UM coverage in the event of an accident is that if you’re forced to use it you actually wind up with a larger recovery than you would if you were making a claim against a driver with adequate coverage.