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Legally Speaking – with Bob Mionske: Doored v. Nailed Part II

Dear Readers,Last week (see Doored v. Nailed), we had a letter from D.D., who askedWhat legal issues arise when a cyclist swerves to avoid a car door opening and is hit from behind by a car? It has not happened(to me) yet, but oh so many close calls!This week, we're going to take a second look at this issue- be sure to scroll down for reader comments and advise on avoiding this common bane of cyclists. The Door ZoneAs you may recall, in Doored v. Nailed I cited the website for the Door Zone Project, which contains a summary of news accounts of dooring accidents. Shortly afterwards, I

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By Bob Mionske

Dear Readers,
Last week (see Doored v. Nailed), we had a letter from D.D., who asked

What legal issues arise when a cyclist swerves to avoid a car door opening and is hit from behind by a car? It has not happened(to me) yet, but oh so many close calls!

This week, we’re going to take a second look at this issue- be sure to scroll down for reader comments and advise on avoiding this common bane of cyclists.

The Door Zone
As you may recall, in Doored v. Nailed I cited the website for the Door Zone Project, which contains a summary of news accounts of dooring accidents. Shortly afterwards, I received this email:Hi Bob. I’m the “student” whose Door Zone page you linked to in your Doored v. Nailed article. I’m honored that you cited my work, but I’m no a student! I’ve worked here at the University of Michigan for eight years. Would it be possible to edit “student” to “staff member”?See what happens when you make assumptions? Strike one, so I refuse to speculate further on whether Riin is a Dutch name, the proper pronunciation of Riin, and most hazardously, what gender is indicated by Riin’s name. I mean, that’s a potential four strikes, right? It is officially safe now, however, to state that Riin is a University of Michigan staff member. It’s been fixed. – EditorAnd speaking of official news, Riin has asked me to pass on the link to the new updated website for TheDoor Zone Project. Anyway, an interesting website, Riin, and certainly an idea worth expanding into a full-scale research project.

Yeah, but what about liability?
Now, to answer D.D.’s question about the legal issues raised by swerving into the path of a car to avoid being doored, I discussed both the three tort liability theories as well as the four insurance systems used by the various states. In response, S.C. of Texas wrote: I found it interesting that you answered the question, “What is the legality of when a cyclist swerves to avoid a car door opening and is hit from behind by a car?” in terms of liability insurance schemes rather than legal liability for fault. Although fault determinations were addressed under the heading “Tort Liability System”, the structure of your analysis reflects the role and power of insurance in our lives. Your answer was well-reasoned and practical, but to me anyway, the manner in which the question had to be answered is a sad commentary on the insurance industry’s control over individuals’ rights and access to justice, whatever that may be. Well, S.C., what can I say? As far as the pervasiveness of insurance issues, the reality is that most people are “judgment proof.” If you’re involved in an accident and the liability insurance doesn’t pay, no one will, so the insurance industry is a necessary component to address when discussing recovery. Further, the insurance industry is a business sector that depends on the public’s ability to bring suits against tortfeasors. If there was no right to bring legal claims who would buy insurance coverage?

However, the other factor we need to consider is that legal liability for fault depends entirely upon which the state the accident occurs in. First, as we saw, there are four different insurance systems in the United States: Tort liability, no-fault, hybrid, and choice. Now, if you happen to get doored in a state that has a no-fault insurance system, liability won’t even become an issue unless your injuries exceed that state’s “threshold.” You just collect you check and pay your bills. Except for criminal prosecutions, the only reason for establishing fault in any accident is to recover for your injuries from the other party, and in a no-fault state, “legal liability for fault” is usually irrelevant as far as recovery for your injuries. Of course, one of the downsides to no-fault is that you can only recover for some of your injuries. Another downside is that you can only file a lawsuit if your injuries exceed the threshold for lawsuits. Then liability becomes an issue. In the other three insurance schemes, liability will always be at issue in varying degrees, depending on the insurance system the state uses.

We also need to consider the fact that in a tort liability state, the insurance company makes the initial assessment of liability, and makes a settlement offer based on that assessment. If you can’t reach an agreement with the insurance company, you can then take your case before a jury. But why not just skip the insurance company and go straight to the lawsuit? Well, for one thing, the insurance offer might be a fair offer, and accepting a fair offer is far less expensive and time-consuming than litigation. For another thing, when you file a lawsuit, you are representing to the court that you have tried and failed to reach an agreement outside of court. If you really want to irritate a judge, try filing a lawsuit without first trying to resolve your differences outside of the courtroom. Then there’s the fact that the insurance company is legally bound to represent their insured motorists at trial, so you’ll be dealing with the insurance company anyway. All of this means that the insurance company will be a part of any accident resolution—if you’re lucky. After all, you wouldn’t want to get doored by an uninsured, judgment-proof motorist, would you? Far, far better to get doored by the heavily-insured motorist, don’t you think?

The second factor which makes liability dependent upon the particular state is that there are three different theories of tort liability in the United States: Pure comparative negligence, modified comparative negligence, and contributory negligence. Now, if you have a cut-and-dried case of one person being 100% at fault in an accident, it won’t really matter which of those theories the state follows. However, in every negligence lawsuit, the defendant will always attempt to apportion at least some of the fault to the plaintiff, and at that point, the liability theory your state follows can be vitally important to the outcome of your case. In the most extreme example, states which operate under a theory of contributory negligence would deny any recovery to a cyclist injured because of a negligently opened door if the cyclist were found to have negligently contributed in any way to the accident—for example, by not keeping a proper lookout for hazards. Thankfully, most states have moved towards one of the comparative negligence systems, which apportion liability based on each party’s degree of negligence.

Okay, but really… What about liability?
So, back to the original question, “what is the legality of when a cyclist swerves to avoid a car door opening and is hit from behind by a car”? Who, if anybody, might be found liable in this scenario? Let’s take a second look. In this scenario, there are at least four, and possibly five or six parties involved in the accident:The person who opens the car doorThe cyclist who swerves to avoid the car doorThe motorist who hits the cyclist from behindThe governmental entity responsible for the placement of bicycle lanesThe manufacturer of the automobile that hits the cyclist; andThe mechanic who services the automobile that hits the cyclist.

Now let’s look at how each of these parties is involved in the accident, and how their actions may be negligent. First, there’s the person who opens the car door. Without this person, there would be no accident. In determining the legal cause of an injury, we often say “but for” this negligent act, the injury would not have occurred. In this scenario, “but for” the person opening the car door, the cyclist would not have swerved into the path of another vehicle. Is the simple act of opening a car door negligent, however? Remember, a negligent act is the breach of a duty of due care that every person owes every other person. In this scenario, the person opening the car door has a duty to keep a proper lookout for pedestrians and approaching vehicles. If there’s a bike lane adjacent to the parked vehicle, the person opening the car door must particularly keep a proper lookout for bicycles. In fact, opening a car door without first looking is illegal in many states and municipalities, which potentially makes the act of opening the car door without first looking negligence per se.

But what if the person who opens the car door is a minor? Can a minor be held liable for negligence? Yes, although the standard of due care for a minor will not be the same as for an adult. Even so, it may be possible that the parents are also negligent in failing to exercise proper parental control. Regardless of who actually opens the door, this person’s negligent act is likely the superseding cause of the accident, which means that any other acts of negligence would be superseded by the negligent act of opening the door without keeping a proper lookout. Because this would likely be considered the superseding act of negligence, it would be vitally important after an accident to gather the contact information for this person and any witnesses to the dooring.

The second person in this scenario is the cyclist who swerves to avoid the car door. Depending upon the circumstances, it’s possible the cyclist is also negligent to some degree. For example, the cyclist also has a duty to keep a proper lookout for pedestrians and vehicles, and to anticipate hazards in the road. If the cyclist breaches these duties, the cyclist could be found negligent. The cyclist is also under a duty to obey the applicable traffic laws; if the cyclist was disobeying the traffic laws and that disobedience was a factor in the accident—for example, if the cyclist was riding above the speed limit—the cyclist could be found negligent. Even if the cyclist was riding within the speed limit, if the speed was in excess of what a reasonable person would consider safe for the conditions—for example, if the speed is unsafe for the door zone—the cyclist might be found negligent.

The third person in this scenario is the motorist who hits the cyclist from behind. Depending on the circumstances, it’s also possible that the motorist is negligent to some degree. For example, was the motorist keeping a proper lookout for other vehicles and road hazards? Was the motorist obeying the traffic laws? Did the motorist properly maintain the vehicle—for example, were the brakes functioning properly? These are the types of questions that would be raised in a lawsuit for negligence.

The fourth party in this scenario is the governmental entity responsible for the design and placement of bicycle lanes. Assuming that there is a bike lane, and based on the cyclist’s need to swerve into the path of a vehicle to avoid being doored, one question to consider would be whether the bike lane meets the guidelines of the American Association of State Highway and Transportation Officials; failure to meet those guidelines might be considered evidence of negligence. However, whether the bike lane meets those guidelines or not, the design and placement of bike lanes may nevertheless be found negligent if the bike lane is within the door zone.

The fifth party in this scenario is the manufacturer of the automobile that hits the cyclist. If the automobile is suffering from some product defect that affects its safety—for example, if the brakes are defective, and that contributed to the accident—the manufacturer may also be found liable for negligence.

Finally, the sixth party in this scenario is the mechanic who services the automobile that hits the cyclist. If the mechanic fails to notify the owner of potential mechanical problems, or fails to competently perform repairs, and that failure contributed to the accident, the mechanic may be found liable for negligence.

As you can see, questions of liability are very fact-specific, and depend upon the particular circumstances of a particular accident. At best, we can understand some general principles that apply in every situation: Every person owes a duty to every other person to exercise reasonable care; every motorist, cyclist, and pedestrian is under a duty to keep a proper lookout for pedestrians, vehicles, and road hazards; every person is under a duty to observe the traffic laws, and so on. The difference between safe riding and an accident will often be the cyclist who exercises reasonable care.

Speaking of Safe Riding…
In Doored v. Nailed, I discussed some ideas for protecting yourself, including riding outside the door zone, using a mirror, and making sure you’re adequately insured.In response to my suggestion to ride outside the door zone. one reader, D.R. of California, asked whether“I was riding outside the door zone” would keep me from getting ticketed, or be an acceptable defense in court if I do get ticketed? If a police officer stops you for riding outside the door zone, it’s certainly worth an effort to try to reason with the officer. Many cyclists carry cards with the applicable sections of the vehicle code; having one of these available to discuss with a police officer is probably a good idea. That’s not a guarantee that you won’t get ticketed, but it’s worth an effort. If you do get ticketed, be prepared to go to trial. Bring whatever evidence is necessary: Photos of the scene that show the road conditions will be very helpful, as will the newspaper articles cited in the Door Zone website. Finally, you will want to be thoroughly familiar with the relevant vehicle code sections; be prepared to demonstrate that you were not in violation of the law by riding outside of the bike lane (see Doored v. Nailed for examples), and use your photographic and newspaper evidence in your argument. Remember, it’s ultimately up to a court, and not the police officer, to decide whether you are in violation of the law.

So what about some other ideas to protect yourself? Another reader, R.Q., writeswhen you are riding along next to a row of cars, as you approach each car, look in through the back window and also look at the driver’s side mirror to see if you can detect someone sitting in that car. A head silhouette in the back window or a face in the mirror means that you really have to watch out for the bozo who’s about to door you. No one’s ever been doored by an empty car (at least no one who was watching where he or she was going). You can’t see in every car, but if you ascertain that there’s someone in the car you’re about to pass by then you know you have to really be cautious. It’s better than just hoping that the door doesn’t pop open at you and startle or push you into the way of a passing car. Along those same lines, RSW writesBest of course is to watch to see if there are people in the cars and assume anyone on the left side is just sitting there waiting to get you and take evasive action before they get the chance. I know, most people aren’t out hunting cyclists with their car doors but I think more evil is done by carelessness than by conscious intent so I treat it all the same. If they are far enough away, slow down or stop before impact – don’t change lines to avoid unless there is time to check traffic after hitting the brakes. If impact is inevitable, stand up and try to hang onto the door, try to avoid the edge. This will usually mean cutting into the car not away from it. Even using a hand to open the door so you can avoid the edge is something to think about. These are important pointers. In addition to helping avoid a dooring accident in the first place, scanning the cars ahead would probably fall under the classification of keeping a proper lookout for vehicles, pedestrians and road hazards. In other words, if you’re scanning the cars ahead, you’re taking the reasonable precautions necessary to avoid negligence on your part. In addition, you should use your ears as well as your eyes; if you hear the click of a car door opening, be prepared to have it opened in front of you. Finally, if you’re riding in the door zone, try slowing down to a safe impact speed. If you do somehow get surprised by a door despite all your precautions, you may be able to brake to a stop before impact, and if not, the damage will be lessened.

Now, RSW suggested cutting into the car to avoid the hard edge of the door; another reader suggested that the person opening the door would make the softest target.

And people wonder why there are so many lawyers.

Okay, here’s the deal on aiming for the motorist: So far, we’ve been talking about the negligence of various actors in this scenario. Aiming for the motorist introduces a new tort, battery, into the scenario. Unlike negligence, battery is an intentional tort, and thus, a more serious act than negligence. You don’t want to turn the motorist’s negligent act into a battery lawsuit against you, so don’t aim for the driver.

Now, what happens if you accidentally collide with the motorist who has just opened the door and stepped into your path? Are you liable for anything in that scenario? Again, it would depend on whether your own negligence contributed to the accident, but generally, the standard of due care you are expected to observe is lowered in an emergency; this is called the “emergency rule.” So if a car door is suddenly swung open in you path, and a motorist steps into your path, the motorist’s own negligence, combined with the emergency rule, will probably protect you from liability. Of course, try not to be riding negligently just before the motorist negligently steps into your path.

Is there anything else you can do to protect yourself if you do get doored? One reader, A.C., suggestsAim for the center of the door if you can; avoid the edge, because it hurts worse, and hitting the edge is what turns the bike into passing traffic. The softest landing will be on the hood of the vehicle that just doored you, so if you’re going to get thrown, aim for the hood. To keep from getting thrown, shift your weight to the back and lose as much speed as you can before impact. Another technique to consider would be to jump off the back of the bike before impact; if you can grab your saddle, you might even save your bike.Finally, another reader, D.C. suggestsOne of the advantages of a recumbent is that you’re less likely to be injured in a dooring accident. After all, you’re hitting the door feet-first. If you have over-seat steering and a fairing, the chance of injury is lessened even further. Plus, because I’m at the same height as most drivers, I can see them better, which gives me a better chance to avoid getting doored in the first place! You just knew a ‘bent rider would pop up here, didn’t you? See? You’re already paying closer attention.
Good luck,
Bob
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)


Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.