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By Bob Mionske
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:
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:
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
So what about some other ideas to protect yourself? Another reader, R.Q., writes
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., suggests
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)
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 firstname.lastname@example.orgBob 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.