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Legally Speaking – with Bob Mionske: Doored!

Hey Bob,Last week some guy opened the door on his truck just as I was passing by him and I couldn't avoid running into the door. I have a large gash in my forehead and my Giant is totaled. The guy's insurance company originally was very nice, but yesterday I received a letter in which they blamed me for “riding too close to the parked cars” and “failing to keep a look out” and stated that they are “not accepting liability” in the matter. Am I out of luck?J.F.Seattle, Washington Dear J.F.,Don’t let a letter from the insurance company scare you away from a potential claim. We have all

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By Bob Mionske

Hey Bob,
Last week some guy opened the door on his truck just as I was passing by him and I couldn’t avoid running into the door. I have a large gash in my forehead and my Giant is totaled. The guy’s insurance company originally was very nice, but yesterday I received a letter in which they blamed me for “riding too close to the parked cars” and “failing to keep a look out” and stated that they are “not accepting liability” in the matter. Am I out of luck?
J.F.
Seattle, Washington

Dear J.F.,
Don’t let a letter from the insurance company scare you away from a potential claim. We have all had close (or actual) encounters with unaware motorists opening car doors at the wrong moment. When I am riding along side parked cars I try to stay vigilant for doors. Still, I have many times experienced that unpleasant adrenalin surge of a near miss when I spied the “getting ready to fling my door open without looking motion” that presages disaster. I have been lucky so far, but I have also represented many, many less fortunate cyclists.

Washington law states that anyone operating a bicycle at a rate of speed less that the normal flow of traffic “shall ride as near to the right side of the right through lane as is safe” (RCW 46.61.770). In most cases this means you are riding right alongside the parked cars, and in the path of any doors that might get opened. The insurance company is suggesting that you were riding farther to the right than is safe. The flip side of that is if you as a prudent cyclist feel it is necessary you may occupy the full lane to avoid hazardous situations (such as car doors). Unfortunately, the practical result of that would most likely be a lot irate motorists and a possible charge that you are impeding traffic.

There is some good news though, the Seattle Traffic Code places a duty on the operators of motor vehicles not to open the vehicle door “until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic” (Section 11.58.050). Obviously the motorist here neglected his duty and opened the door without first looking to see if it was safe to do so.

A quick case law search indicates that the various states support the argument that motorist, in the typical case, are held liable in negligence when the swing their door open and injure cyclists.

If your case were to go trial (which normally is not required) the issue to be decided would be the comparative negligence of you (for “riding too far to the right” or “failing to keep a look out” or whatever the defense can dream up) and the owner of the truck (for opening the door in an unsafe manner). Washington is one of 13 states that use the Pure comparative negligence system. That is, whatever percentage at fault the jury determines you to be, that is the percentage you are liable for damages of the plaintiff (and this is true all the way down to 1 percent). For example, if the total damages to your person and your bicycle were $2000, and the jury decided that you were 40 percent negligent and the owner of the truck was 60 percent negligent, he would only have to pay you $1200 (60 percent of the $2000).

Most other states employ some form of a Modified comparative negligence system where if the plaintiff is determined to be 50 percent or more negligent they get no recovery at all.

A handful of states have Contributory negligence and under this negligence system if the fact finder (judge or jury) finds the plaintiff to have “contributed” even 1 percent to the accident, they are barred from any recovery!
Good luck
Bob(Research and drafting assistance provided by Bryan Rousseau – Lewis and Clark Law School)


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.