April 20, 2016 § 34 Comments
It’s illegal to bicycle while drunk in California. You might think it’s a slap on the wrist but as a misdemeanor it will show up as a criminal conviction on your record. Ouch. It also makes you subject to the provisions of CVC 13202.5, which relates to suspension of your driving license.
There are lots of great reasons not to cycle while drunk, and most of those reasons are because although immensely fun and the source of hilarious stories and the occasional Darwin Award, drunkenness rarely ends well. Still, the enhancement of CWFU to the general experience of riding is without parallel, at least until you get run over and killed.
The first time I ever CWFU I was fourteen or so. It was in 8th Grade. There was a guy in my homeroom class named Greg Choban, who was about six feet tall, which meant that in relative terms he was, like, twelve feet tall, and who had failed 8th Grade and now had to repeat it. Greg was a loner who always wore a big cowboy hat before and after school. He was quiet and standoffish, and no one ever fucked with him because he was so big, and now that he had failed 8th Grade, he was older, too, further making us all afraid of him.
His locker was next to mine and we’d occasionally talk, super briefly. He had a baritone voice and raging beard stubble and towered over me, especially when he put that cowboy hat on. One day, out of the blue, as we were collecting our books to go home, he said, “Hey, man, you doing anything after school?”
“No,” I said.
“Why don’t you come over and check out my treehouse?”
I didn’t know what to say, so I said, “Okay.” Mostly I was afraid to say “No.” Treehouses, everyone knew, were for little kids, a few planks nailed to the side of a tree, some plywood in between the branches, and, like, that had stopped being fun in elementary school. The thought of going to play in a treehouse with Wilt Chamberlain was weird, to put it mildly.
We rode our bikes over to his house. His Dad was home, a very old guy, older than old, so ancient he might have even been fifty, sitting in the living room watching TV, which was weird because in 1976 or 1977 there was nothing on TV at three in the afternoon. I’d never met anyone whose father was unemployed, and all the drunks in my family didn’t start getting lubed up until 5:00 or 6:00 PM.
“Hey, John,” said Greg.
I froze. I’d never heard someone call his dad by his first name. The ancient fellow nodded and sipped some more of his Schlitz. I still remember how immaculate the living room was.
We went out the back door. “Where’s your mom?” I asked.
“Oh,” I said.
In the backyard stood a massive oak tree. Indeed, it had wooden steps nailed to its trunk, but there looked like a zillion of them and they went way, way up. Far above my head I could see the bottom of the treehouse, which looked like a small house. So much for plywood planks. Greg disappeared into the foliage.
I followed, soon swallowed by the boughs and leaves. You had to enter through a trap door in the bottom, which I did. When my head went through the floor I looked around, mesmerized. The treehouse had carpet and windows and its walls had incredible black light posters. On the floor were large velour red and purple pillows.
Greg was already seated, his back leaned against the wall, smiling. Even though it was in the high 90’s outside and humid as only the Houston swamp can be, it was cool and pleasant up in the tree, where a light breeze played through the open windows. His treehouse was a hundred times cooler than my bedroom. “Like it?” he said.
“Wow, this is amazing.”
“Settle in,” he said, and put a record on the turntable. It took a few seconds for me to realize that his treehouse had electricity. He showed me the album cover. “Like this?” It was Foghat.
I nodded. “Cool.” I noticed that there was a string suspended from the ceiling, and on the end of the string was a small plastic skull, about the size of a Hackysack, which was still years away from coming to the backwater of Houston. Seated where I was on the velour cushions, the plastic skull was about eye level. As the treehouse gently creaked from the occasional breeze that swayed the giant oak limbs, the skull moved like a pendulum ever so slightly.
Greg pulled out his water pipe. The bowl was massive, and he filled it. The acrid smell of burning leaves filled the tiny space and we took turns, each pull on the pipe causing the water to jump and gurgle and roar. After a long time it was dark outside, pitch fucking black.The only light was the fire from the bowl, and eventually that went out too, and we were in total blackness.
“Kind of dark up here,” Greg said.
“Yeah,” I said.
“Better turn on the lights then,” he said, and flipped a switch. In the corners of the ceiling were four small black lights, and when they came on the psychedelic effect of the Hendrix poster, the Jefferson Airplane poster, the Robin Trower poster, and the Zeppelin poster was overwhelming, profoundly stoned as I already was. It took what seemed like hours for my eyes to go over the intricacies of each poster, getting lost in the curlicues and the hair and the guitar strings.
“Hey, man,” Greg said.
“Check this out.” He leaned forward to the dangling skull and grabbed it, pulling it back toward him. Then he let go and it came flying towards my face. He had measured the string so that the skull would get within an inch or so of your head before swinging back, but I didn’t know that.
All I knew was that I was being attacked by a flying skull, and as I violently jerked back my head cracked against the wall of the treehouse. Greg erupted in laughter, then he convulsed, then he fell over. “Oh, man,” he said, “that was the best one ever.”
My eyes were pinned to the swinging skull, stoned-terrified, praying that it would just stop swinging and not devour my face. Robin Trower was singing this, I think, from (what else?) Victims of the Fury.
I’m not sure how, but I stumbled down the ladder in the dark. The last thing I heard Greg say was, “Hey, man, it’s cool, it’s cool!”
I hurried through his house where his dad was still seated in front of the television, a pile of empty cans at his feet. My bike was leaning against the bushes. I jumped on it and rode crazily, drunkenly home, and I never went back. I still think about that lonely giant up there in that treehouse with the swinging skull.
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March 1, 2016 § 36 Comments
When you get hit by a car you get hurt. The easiest injuries to take account of are physical. Broken bones, contusions, blood, and lots of pain let you know when you’ve injured your body.
But whether you get hit by a car or fall down in the middle of a crit, you almost always wind up with another kind of injury that is much harder to evaluate, diagnose, and treat. It’s the mental trauma that accompanies the physical injury.
Formally recognized as post traumatic stress disorder, as cyclists we’re all familiar with it in different guises. Here are a few:
–Fear of descending after a downhill spill.
–Fear of riding near others after you’ve fallen in a group.
–Anxiety about the proximity of cars after you’ve been hit by an auto.
–Anxiety about your tires/wheels/frame after you’ve fallen because of an equipment failure.
For many cyclists, these fears can be much more debilitating than the bones and torn skin that eventually heal. The joy and freedom of cycling, for many riders, vanishes forever after they’ve been clocked by a car and carted off to the ER in an ambulance.
I was so terrified the first time I descended the road on which I’d cracked my pelvis that I shook. That’s a road I’ve descended hundreds of times, but the first time after my fall it was a fearful new world.
One friend who took a nasty spill found her heart racing at 172bpm seven months after the injury … as she drove to the shop to get her bike repaired.
Whether you got hit by a car or slid out in a turn, these anxieties can completely ruin cycling for you. Along with that, you can lose much more than fitness. When the healthy lifestyle that often accompanies cycling is replaced by sedentary behavior, it can have a ripple affect that upsets work, family relationships, and the fundamental building block of your existence, your health.
From a legal perspective, this type of injury is compensable. A cager who whacks you and breaks your leg and bike is also on the hook for the resulting fear and anxiety that he has now brought into your life, especially when your PTSD wreaks havoc in your home and with your work.
But whether your trauma was caused by a motorist or your own bad judgment, your behavior should be the same. Fear and anxiety about riding should be treated by a licensed healthcare professional. “Get back on the horse” is the ultimate goal, but there are therapeutic ways to get there that are safe, healthy, and effective.
So if you find yourself unable to pedal after your physical injuries have healed due to anxiety or fear, get help.
December 1, 2015 § 29 Comments
Although I generally disdain using this space for anything useful, here’s something useful: Using MedPay insurance to defray your medical bills.
If you get hit by car, you now know (because you religiously read this blog–and by “religiously” I mean “daily,” not “becoming an angry white Christian man and shooting up an abortion clinic”) that it’s a great and inexpensive idea to have uninsured or underinsured motorist coverage.
However, whether you have such coverage or not, once the driver’s insurer admits liability and issues you a check, you have the problem of healthcare insurance liens (and so does your lawyer, and frankly, whose problems are more important–yours or his?). In short, when your healthcare insurer pays for your medical bills after fighting tooth, claw, nail, fang, whip, hammer, icepick, baseball bat, and slingshot, the terms of their agreement with you allow them to assert a lien against the bodily injury settlement money you get from the insurance company of the driver who hit you.
In other words, you finally got them to cover your accident, and your humble lawyer finally dragged a few dollars out of the offending driver’s insurer, and lo! The health care insurance company wants its cut. “After all,” they piously intone, “we paid your hospital bills.”
Now you’re probably thinking, “Like fuck you did. I paid them–it’s called a fuggin’ insurance premium. Why should you have any claim to the money I get from the baddie who mowed me down?”
Answer: Because they have the gold and they write the rules, and California rules say that they can. Don’t like it? Become a major insurance company. I hear it’s a growth business.
If this seems like it sucks, that’s because it does, and as time goes by health care providers are getting harder and harder to negotiate with regarding these liens. Used to be, your savvy lawyer could phone them up and say, “Look here, Mr. Dikbag, I worked my butt off to get this settlement. If it weren’t for me you’d be getting zero, so cut me some slack and reduce your lien.”
They’d hem and haw and do it. Now they still hem and haw, but the reductions aren’t as high, and in many cases they don’t reduce them at all.
It’s often the case, especially when you get hit and your injuries are moderate or minor, that the ambulance ride and the follow up treatment greatly reduce your eventual recovery. In essence, by filing a claim and hiring a lawyer, it can seem like all you’re doing is working for free for the healthcare provider: Getting the driver’s insurer to cut you a check which then gets (mostly) handed over to the healthcare provider. They think it’s great. You (and your humble lawyer) think otherwise.
Since the healthcare insurer has first priority over the settlement check, he gets paid before you, and before your lawyer. Lawyers don’t like that very much, and neither do you.
So although the message might seem to be, “If you’re going to get hit, make it a catastrophic injury and get hit by someone with a billion dollars of coverage,” it isn’t. The message is that there is at least one low-cost way to keep the healthcare provider’s grubby paws off your money so that it can remain in your grubby paws and the even grubbier paws of your lawyer.
Here’s how: Get MedPay coverage added to your auto liability coverage. If your insurer doesn’t offer MedPay, switch insurers. MedPay coverage is an add-on that lets you send medical bills directly to your auto insurer when you’ve been hit by a car. Your healthcare insurance pays zip, and therefore has no lien on your recovery. For small and moderate cases, MedPay coverage is great, and some insurers will offer benefits up to $25,000.
You submit the bills directly to YOUR auto insurance company, they pay you or the doctor/hospital/ambulance directly, and you submit your claim for pain, suffering, and lost wages to the insurance company of the offending driver. When you reach a settlement, your healthcare insurer (Kaiser, Anthem, Providence, etc.) has no claim to any portion that was covered by MedPay.
The other good (great) thing about MedPay is that it kicks in regardless of fault. In other words, you don’t have wait until the mud wrestling match is completed with the offending driver’s insurer to receive the benefits, and in the event you’re tagged as being the one who caused the collision, your MedPay coverage still pays as long as your injury isn’t covered by worker’s comp.
One added note about MedPay: In some states, and California is one of them, MedPay does have a right of reimbursement in the event you are “made whole” by your settlement. Although it’s beyond the scope of this blog post to discuss the “made whole” doctrine, even a MedPay insurer may be able to claw back some of its payments from your settlement. In any event, MedPay gets you paid more quickly and will cover co-pays and other out of pocket expenses that your healthcare insurer will not.
Be sure to check the policy for exclusions, reimbursement rules, and read the fine print; every insurer’s policy is different.
So before you lawyer up, MedPay up.
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October 26, 2015 § 67 Comments
This is a topic that I’ve written about before and that I can’t write about enough. It’s dry, it’s a bit legalistic, and it includes the dreaded word “insurance,” but please take a minute to read because it concerns the most important purchase you’ll ever make as a cyclist.
You may think that if you get hurt in a bike-car collision you’ll be able to recover money from the negligent driver as long as the driver is insured.
What you may not know is that in California the minimal insurance coverage for collision 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 the odds are overwhelming that the driver who hits you will have to compensate you for a maximum of $15,000 and THAT’S IT. Once your expenses exceed the $15k that most drivers carry, you’re done, even when you’ve suffered injuries totaling hundreds of thousands of dollars.
There is, however, a very cheap and very effective way for cyclists to protect themselves and their families from cagers who carry minimal insurance. It’s called uninsured motorist and underinsured motorist coverage (UM/UIM), and it comes standard with every auto insurance policy unless you specifically decline the coverage. [Note: NEVER, EVER, EVER, EVER DECLINE THIS COVERAGE. You may think you’re saving a few bucks but in reality you’re declining the best and cheapest insurance you will ever buy as a cyclist.]
Few cyclists know that UM/UIM coverage on their own auto liability policy exists, and even fewer know that it covers them in a bike-car collision when they’re cycling and get hit by a motorist. This means that if, for example, the driver’s policy tops out at $15k, you have the legal right to turn to your own UM/UIM insurance for the remaining expenses or damages above and beyond the $15k paid out by the driver.
So far, so good, but there’s a catch: If you’re like most people, your UM/UIM coverage is also minimal, often only $15k or $25k. Since you have to deduct the amount already paid out by the offending driver from your own UM/UIM claim, if you have minimal UM/UIM coverage the additional recovery is very small or zero. (15k UIM coverage – Offending Driver’s $15k liability coverage = 0 additional recovery.) It’s not uncommon at all to see a cyclist who has a responsible liability policy for $500k, but a measly $15k or $30k for the UM/UIM portion of his policy.
In other words, the cyclist is being very responsible with regard to paying for damage he might do to others, but completely failing to make adequate provision for the damage that some uninsured drunk or underinsured deadbeat may do to him.
There’s a great solution, though. You can increase your UM/UIM coverage so that it equals the amount of your liability coverage for only a small increase in your monthly premium. Although your UM/UIM coverage is barred from exceeding your liability coverage, as an example, if you have $500k of liability insurance but only $25k in UM/UIM, you can bump up your UM/UIM from $25k to $500k for only a few bucks a month. If you only have $25k or $50k of liability insurance to begin with, you have a problem.
If you ride a bike and have liability coverage of anything less than $100k you are grossly underinsured. I’d say that a barely adequate UM/UIM policy should be no less than $500k. If you have a family nothing less than $1M is enough. If you can’t afford $1M in liability/UM/UIM coverage, sell your extra bike or extra set of carbon wheels. It is the best money you will ever spend as long as you ride a bike, and obviously it’s exactly the kind of protection you want if you’re driving. UM/UIM coverage also kicks in if you get hit by a car while you’re walking.
There are certain insurers such as Mercury who will not offer a policy for more than $250k. Run from these insurers and go with an insurance company that will sell you an adequate policy. Chubb, Allstate, AAA, State Farm, Farmers, and Tokio Fire Insurance and Marine are just a few of the insurers who offer adequate policy coverage. I’ve found Tokio Fire Insurance and Marine to have the cheapest rates with the best coverage and the best claims responses.
For the sake of yourself and your family, take a minute to look at the declarations page of your insurance policy, check liability limits and the UM/UIM coverage, and then call your agent or go online and raise it to the max. This is something you can’t afford to put off.
The other huge benefit to turning to your UM/UIM coverage in the event you get hit is that if you’re forced to use it because the driver’s coverage was inadequate, you actually wind up with a larger recovery than you would if you were making a claim against a driver with adequate coverage.
This is because your health insurance provider will have a lien against any recovery you get from the driver’s insurance. In other words, if Anthem pays your doctor $15,000 in medical bills, Anthem will be able to recover what it paid your doctor from the insurance proceeds you get from the offending driver, effectively reducing the amount you ultimately receive by the amount of their lien. However, when the recovery comes from your own UM/UIM motorist policy, the health insurance provider will have no claim on those proceeds except in a very few limited instances.
Call your insurance agent and raise your limits now. I’ve seen too many injured cyclists with six and seven-figure injuries who are hit by uninsured or underinsured motorists and whose own UM/UIM coverage is only for a few thousand bucks. Don’t be that cyclist!
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September 25, 2015 § 19 Comments
The entire German national Volkswagen team was caught doping earlier this week, but unlike their cycling compatriots, rather than blaming it on a vanishing twin or a tainted supplement, they confessed to having intentionally doped their diesel cages to evade emissions regulations in the U.S. and in other nations, including Germany. Team leader Martin Winterkorn resigned today, taking full responsibility for cheating.
Unlike his Gerolsteiner compatriots, rather than disbanding the team and handing out two-year bans, Team Volkswagen will continue operations after pledging a “completely transparent investigation” and “full cooperation with the authorities.” These are the same authorities they have systematically lied to and cheated since 2009.
If you haven’t already heard, Team VW tested positive for Chinese computer coding that allowed their environmentally friendly, clean running diesels to spew 40 times more filth into the air than the law allows. Suckers, I mean consumers, who purchased these enviro-friendly cages paid a premium and now will be selling at a loss. In addition to fraud, breach of contract, breach of the implied covenant of good faith and fair dealing, the Consumers Legal Remedies Act, civil fraud, and possibly violations of the Rees-Levering Act, Team Clean Diesel will certainly face class action litigation, federal and state fines, and possible criminal charges as well.
Skeptics believe that other cage manufacturers will soon be caught up in the cage doping scandal, particularly those who make diesel engines.
Contrast the high crimes and misdemeanors of the cage industry and its lethal ignition lock flaws, transmissions that suddenly shift into reverse, “unsafe at any speed” Corvairs, exploding Pintos, pickups with exploding gas tanks, defective tires, and now, intentional pollution of the air, with the bicycle industry.
Pretty quick comparison.
I hope these dopers get what’s coming to them.
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September 12, 2015 § 21 Comments
I was late for the Sunday Wheatgrass Ride a few weeks ago and had fallen in with Wily and Pilot. The downhill on PV Drive North gets you up to a solid 40 mph then hits a most inconveniently placed stop sign, right at the bottom of the descent where it veers left and up into the starting lot at Malaga Cove.
No self-respecting, early morning Sunday cyclist gives this stop sign so much as a nod, and we didn’t, either. The problem was that when we banged through the stopper at forty, out of the saddle, shoulders hunched, and heads slightly down as we slammed up the little rise, there was a police car waiting for us, and in the car was a trainee. And no cop lets a bike scofflaw go with a trainee in the passenger seat. It’s the perfect teaching moment, with the possibility of restraints and chokeholds thrown in for good measure.
There were other problems, too, like the fact that the cop leaped out of the car and immediately began purple-neck-veining at Wily. “Didn’t I pull you over here for the same damn thing last week?” he roared. We all got ticketed.
My last PV stop sign violation cost me about $150.00. I had declined to fight it and did the call-in fine-pay. This time, though, I figured I would go to the arraignment, enter a not guilty plea, set a trial date, and hope the cop didn’t show–especially since he had muttered to Wily that he was on vacation for the month of November. If he did show I’d at least be able to plead guilty and hope for a reduction.
Since I was riding my bike this morning and it was my own ticket I thought I would go to court as a regular citizen, so I put on shorts and t-shirt instead of a suit and went to the Torrance Courthouse. While waiting for the doors to open, a queue of about sixty people formed. Torrance, Hermosa Beach, Redondo Beach, Rancho PV, and PV Estates are predominantly white. So it was kind of amazing to see only three other white people here in the heart of Whitebreadsville.
I guess all the white drivers in the South Bay never run stop lights and such.
We pooled into the courtroom annex and a sheriff’s deputy gave us a speech before letting us into the courtroom. It was incredible.
He told us that his goal was to get us out of there in 30 to 45 minutes, and that 98% of us would do so. However, there were 2% who would be “problems” who “just didn’t get it” and they’d get to hang around for a couple of hours and waste the rest of their morning.
This was a great way to put us all under time pressure (Let’s get this done) and loser pressure (Don’t be a 2-percenter).
Then the deputy gave us an amazing sales pitch. He told us that his courtroom had a different judge every day and sometimes a different judge in the morning and one in the afternoon. This meant that if you got a bad judge you’d pay a big fine. However, today we were all really lucky because we had a good judge. This guy was one of the best, we were told. This judge would give us traffic school. He’d mark down our tickets. He’d give us six months to pay our fines. But if we pled not guilty, well, that was fine with the deputy, but you never know who the judge will be on the trial date.
Then he told us about the bad judge who levied an $8,000 fine on a truck driver who had rejected a $500 plea deal at his arraignment with one of the good judges.
You could see people cringe.
The whole time I was wondering where this fucking sheriff deputy’s bar card was. I was wondering who had appointed him city attorney. I was wondering if he knew it was illegal to give us legal advice–even as he lectured the younger defendants to think long and hard about how going to trial, losing, and not getting traffic school would up their parents’ insurance by hundreds of dollars a year.
The speech was relentless, smooth, practiced, and it was effective. By the time we entered the courtroom we were all so thankful we had a good judge. Then it got worse. The deputy handed out a clipboard and told everyone to write their name and sign. He never mentioned that it was permission to have our cases heard by a judge pro tem, who is not a real judge and is a lawyer hired at a cheap hourly rate to do the work that real judges can no longer do because of state budget cuts.
He never said that we had a right to have our case heard by a real judge and that we had a right to not have our case heard by the judge pro tem. So we baaaa-ed and signed our right away.
Now it got serious. The deputy and the courtroom clerk stood at the defendant table, checked us in, and made each one of us an offer. Not a judge. Not a city attorney. Not even a lawyer. Nope, the deputy glanced at the ticket, told you what the fine was going to be, and offered you a deal. “This is your out-the-door price, folks,” he said. “No hidden fees.”
When you accepted the amount, he wrote it down in bright red ink, put it in a stack and told you to sit down. Of course for most people — WHO FUCKING CARES — but there were people in court with multiple violations, people who really wanted to set their case for trial and get a fair hearing, and people for whom a guilty plea was going to have serious repercussions. And instead of having either an attorney or the judge explain it, we were getting the red-letter discount markdown offer and a high pressure sales pitch from a deputy sheriff.
And how could you say no? People who waffled were reminded what it would cost if they went to trial and lost and had to pay full freight, and how sideways things could go if they got a “bad” judge. By now we’d heard so much about good judges and bad judges that it seemed like the judiciary was a holding tank of either saints or reprobates.
A handful of people set their case for trial, but everyone else accepted the deputy’s plea deal. In my case, it was an amazing offer: My “out-the-door-price” was $25, and the deputy offered me the legal advice that it was a “no points” ticket. I wondered about that since I have many biker friends who’ve gotten “no points” tickets and wound up with points and big insurance rate hikes.
The only person with any backbone at all was the last defendant, a black man. “Hey, now,” he said to the deputy. “Before I sign anything, I got something you need to know.”
We all perked up. This guy was a two percenter.
“Yes?” said the deputy.
“This ticket is bullgarbage. I was sitting in my car minding my own business and this cop who didn’t have nothing to do came over and wrote me this bullgarbage ticket for running a stop sign. I was parked in the damn carwash parking lot.”
“Yes, yes,” the deputy nodded. “Take a seat over there and we’ll get to you after we’ve taken care of everyone else.”
TRANSLATION: GO SIT THE FUCK DOWN AND WAIT FOR TWO HOURS AS PUNISHMENT FOR NOT TAKING MY OFFER.
The judge came in and went through the docket quicker than an alcoholic goes through his first glass of vodka at breakfast. It was my turn. “How do you plead?”
“No contest, your honor, as long as there aren’t any points for this citation.”
“Well, I’m not sure about that. The ticket says traffic school isn’t an option, and that’s usually because it’s a no-points ticket.”
“Usually, your Honor? What about this ticket?”
“I don’t really know. How do you plead?”
So in addition to getting a non-lawyer deputy sheriff selling cut-rate discounts on bogus tickets to indigent defendants with a high pressure sales pitch, I got my case handled by a judge who knew no more about the ticket than I did.
“No contest, your Honor.”
“That’ll be $25, Mr. Davidson. Any questions?”
I had quite a lot of questions, but wasn’t about to make up the rest of the 2%. I had other fish to fry.
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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