Legally Speaking – with Bob Mionske

Dear Bob;Is it true that in Illinois, an injured cyclist cannot sue anyone fordamages? Isn’t that just a back door way of banning bicycling?FLIllinoisDear FL;No, it is not true—mostly. The case you are referring to is Boubv. Township of Wayne, from 1998. Jon Boub was riding his bike on aquiet rural road in Illinois. He started across a one-lane covered bridge.The bridge was originally built with two parallel sets of planks for thewheels of carriages to run on. Under these planks were the floor joistsof the bridge, running perpendicular to the roadway. Over the years, thegap between these

By Bob Mionske

Dear Bob;
Is it true that in Illinois, an injured cyclist cannot sue anyone fordamages? Isn’t that just a back door way of banning bicycling?
FL
IllinoisDear FL;
No, it is not true—mostly. The case you are referring to is Boubv. Township of Wayne, from 1998. Jon Boub was riding his bike on aquiet rural road in Illinois. He started across a one-lane covered bridge.The bridge was originally built with two parallel sets of planks for thewheels of carriages to run on. Under these planks were the floor joistsof the bridge, running perpendicular to the roadway. Over the years, thegap between these joists had been filled with asphalt, making the wholeroadway within the bridge level. However, shortly before Boub’s ride, theasphalt had been removed as part of a bridge renovation project. Therewere no work crews or warning signs at the bridge at the time. Boub’s frontwheel ran off the side of the narrow carriageway planks, fell between twoof the joists, and he was thrown off the bike and badly injured.He sued the local township for negligence. The township countered thatthey were immune from liability under section 3-102 of the IllinoisTort Immunity Act. Section 3-102(a) did not cover municipalities maintainingproperty for uses that are both permitted and intended. Boub argued thatbicycling was both a permitted and intended use of the roadways in Illinois.The Illinois Supreme Court ruled that while bicycling was a permitted useof roadways, it was not an intended use, the township was immune,and thus Jon Boub could not sue it.Furthermore, the court determined that only the intent of the localgovernment counted. Thus, the fact that federal and Illinois state transportationpolicy encouraged bicycle use on roadways was irrelevant; only local intent,as manifested in the presence or absence of special pavement markings andsigns at a particular location is relevant in determining whetherpedestrians and bicyclists are intended to use a given stretch of roadway.First, let me point out that Boub was not a negligence case,it was an immunity case. In the United States, each state is the seat ofall political power. The states have granted certain limited powers tothe federal government in the United States Constitution. The power ofa state is limited only by the restrictions it places on itself in itsstate constitution. Therefore, unless a state says otherwise in its constitutionor laws, it has sovereign immunity and cannot be sued. States can chooseto extend this immunity to local governments if they wish. Illinois hasdone so, and its grant of immunity is very broad-reaching. For better orfor worse, the State of Illinois has decided to make it very, very hardto sue local governments, even if they act negligently. Is that fair? No.Is it legal? Yes.So what does this mean for cyclists? If one has been hurt through thenegligence of anyone other than the state or a local government, the TortImmunity Act is not applicable. Remember, this was a case that definedimmunity, not negligence. Had Jon Boub been struck by a private motorvehicle operated negligently, he could have sued in Illinois in exactlythe same way as in any other state. It also does not change the fact thatif a local government ignores the basic needs of cyclists, it is actingnegligently. It does mean, however, that cyclists are barred from suingthe state or a local government over this negligence. An injured cyclistcould still seek compensation from a local government’s insurance carrier.True, most localities are self-insured, but some aren’t, and it would (probably)be possible to sue the insurance carrier for restitution.Another possible route would be to sue, not the government, but a governmentofficial, such as the township road supervisor. Because of language containedin the Eleventh Amendment to the United States Constitution, people havebeen forced to sue state officials instead of the states themselves formany years. Almost always, the state will step in to indemnify any stateofficial acting in her official capacity, so suing the official achievesthe same end as suing the state. Finally, it is possible to sue the localgovernment for violating either the United States Constitution’s rightto free travel, or a similar provision in the Illinois constitution. Astate government cannot hide behind immunity for the purposes of violatingthe federal constitution or its own state constitution, and it cannot extendthis shield to local governments.Finally, local immunity only extends to negligence. Negligence is thelack of reasonable care, or, to put it bluntly, it’s stupidity. If thecause of action results from an intentional act or recklessness(defined as the wanton and willful disregard of basic consideration forothers) the Illinois Tort Immunity Act is not applicable. In some instancesand in some other states, the failure of highway officials to make reasonablerepairs once they were notified of an existing defect was held tobe reckless behavior. (The issue has, to my knowledge, never been testedin Illinois.) So the best thing you, as an individual cyclist in Illinois,can do is send letter after letter to local and state officials warningthem of roadway dangers to cyclists. Moreover, if you can establish thata harm resulted from actions intended to hurt cyclists, no immunity holds.So in conclusion, the answer to your question is no, the Boub rulingis not a license to kill cyclists, although it has sometimes been portrayedthat way. It does, however, make it very hard to go after local governmentsfor purely negligent acts or omissions. On the other hand, because of theEleventh Amendment, lawyers have been struggling with the question of governmentalimmunity for over a century. Although not a universal solution, the mostprevalent response has simply been to sue government officials acting intheir official capacity instead of their employers. The result is usuallythe same. And if the defendant is not a local government, Boub is not evena consideration; the law of negligence in Illinois is, generally speaking,the same as it is in any other state.
Good luck
Bob(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking with Bob Mionske

 “There are no bad dogs, only bad owners” -Barbara WoodhouseDear Bob;I was riding past my neighbor’s home and their dog ran out and knockedme over. My neighbors have made complaints about this dog in the past,but the family sometimes isn’t careful and the dog gets out.Is there any way to recover?Not a chew toyNew YorkDear Not;In the State of New York, the licensing, identification and controlof dogs is contained in Article 7 of the “Agriculture and Markets Law”section of New York Statute. (Please note that these laws were revisedin 2002, so if you look them up, be sure you are using the

Good dogs gone bad

By Bob Mionske

 “There are no bad dogs, only bad owners”
 -Barbara Woodhouse

Dear Bob;
I was riding past my neighbor’s home and their dog ran out and knockedme over. My neighbors have made complaints about this dog in the past,but the family sometimes isn’t careful and the dog gets out.Is there any way to recover?
Not a chew toy
New YorkDear Not;
In the State of New York, the licensing, identification and controlof dogs is contained in Article 7 of the “Agriculture and Markets Law”section of New York Statute. (Please note that these laws were revisedin 2002, so if you look them up, be sure you are using the currentlaw.) Article 7 only applies outside of cities with a populationof 2 million, and allows municipalities to enact their own leash and controllaws. While state law requires dog owners to identify and license theirdogs, there is no general provision against letting dogs run loose. Provideda dog is licensed, an animal control officer may seize a dog not underthe control of its owner only if she believes that there is probably causeto believe the dog is dangerous. (There is also case law to support theseizure of a dog for its own well-being.)If a witness or victim believes that a dog is dangerous the dog canbe reported to an animal control officer who will initiate a process todetermine if the dog should be declared dangerous. If a dog is found tobe dangerous, the animal must be confined within a suitable enclosure.Any owner of a dog who, through his negligence, allows his dog to bitea person or animal is subject to both civil penalties and misdemeanor criminalcharges.Therefore, the actions you may take depend on several variables. Areyou in a municipality, and does the jurisdiction have a leash law (by whichI also include fencing or kennel laws)? Has the dog been declared dangerous?And the most important question of all, were you bitten or attacked, ordid the dog simply run into you (or did you run into it)? It makes a bigdifference.Under normal circumstances, the owner of any domestic animal (sheep,cow or dog) has no obligation in New York State to restrain it from beingin the roadway. Thus, absent an attack or a loose, dangerous dog, one cannotnormally recover for injuries resulting from the presence in the roadwayunless the owner knew it was potentially vicious or knew that it had ahabit of interfering with traffic. In 1997, a passenger on a motorcyclewas injured when the motorcycle ran into a dog on the roadway. Unable tooffer any evidence that the dog habitually ran into traffic, the courtfound no grounds for damages. In a 1992 case, a dog was struck by a carin the road. A passerby came to the assistance of the injured dog, stillin the roadway, and was herself hit by a car. She sued the dog owner fornegligence, but lost on similar grounds. On the other hand, if you canestablish that the owner knew the dog was vicious, you could possibly suesuccessfully, because a “vicious” dog for purposes of a lawsuit isn’t necessarilythe same as a “dangerous” dog as defined in Article 7.Let’s assume that the dog isn’t inherently vicious and that it was justa big, dopey dog that didn’t know better and ran into you. You state inyour question that some of your neighbors have seen the dog running loose.If that includes running in the roadway, and they are willing to offerstatements, you may be able to make a case. Also, if you are in a townthat has a leash law of some kind, that could make a difference. In a 1997New York case, a child riding a bicycle was injured when he collided witha big, dopey, friendly dog. The court said he couldn’t sue without viciousnessor a history of street roaming, but that if the child’s parents could provethe existence of a town leash law, violating the law may constitute proofof negligence. As a result, the judge sent the case back to local courtfor retrial.The simplest thing you could do is seek compensation from the dog owner’shomeowner’s or renter’s insurance company. Despite the many well-meaninglocal laws defining pets as “wards” or “dependents” of their human friends,in the eyes of the law they are the property of their owners. If a rooftile from your neighbor’s house fell off on your head, you could seek recoveryfrom the insurance company without need to prove that your neighbor didanything wrong. The roofing tile was his property, you had a reasonableexpectation that no tiles would fall off, but one did, and it hurt you.As a result, you may seek restitution for your injuries. (For you legalmavens, this is the “strict liability” doctrine.)Likewise, the dog is property, and even if nobody, including Fido, meantany harm, you had a reasonable expectation that Fido wouldn’t run intoyou on the street, so you can file a claim with Fido’s owner’s insurancecompany.Good luck
Bob(Research assistance provided by Seamus and Sebastian, canine wardsof Bruce Epperson, law student, Nova Southeastern University).


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking with Bob Mionske

Hi Bob,My racing bike was stolen from my garage and my insurance company hasasked for the original purchase receipt, which I no longer have. What shouldI do?Tim J.Dear Tim;I am assuming you have made a proper claim with your insurance carrierand that you have standard homeowner’s coverage. You are not required toproduce the original receipt in order to recover for your loss.You should go to a shop that sells the make and model of bicycle thatwas stolen and ask if they can provide a replacement cost estimate. Schedulea time for your visit and be ready to provide the make, model and yearof the

Insured against loss

By Bob Mionske

Hi Bob,
My racing bike was stolen from my garage and my insurance company hasasked for the original purchase receipt, which I no longer have. What shouldI do?
Tim J.Dear Tim;
I am assuming you have made a proper claim with your insurance carrierand that you have standard homeowner’s coverage. You are not required toproduce the original receipt in order to recover for your loss.You should go to a shop that sells the make and model of bicycle thatwas stolen and ask if they can provide a replacement cost estimate. Schedulea time for your visit and be ready to provide the make, model and yearof the bicycle as well as a list of any upgrades or replacements of components.Many shops are well versed in insurance work and you might want to choosesuch a shop for your replacement cost estimate. It is not uncommon forthe original purchase price to be less than the replacement cost. The insurancecompany may offer only the actual cash value (ACV). ACV is an estimatedvalue which considers the age and condition of the bicycle at the timeof the loss. Typically, the ACV is much lower than both the both the originalpurchase price and replacement cost.Instead of waiting for this low offer, I recommend that you insist uponreplacement cost. Request that the estimator provide the replacement cost estimate on the shop letterhead and have him/her sign the estimate. If your bicycle is no longer being made, have the estimator choose a comparable make and model for use on the estimate.Be sure to provide a list of all upgrades to the bicycle as well asany component replacements you have made. Additionally, list all accessoriesthat were on the bicycle- for instance, computer, pump, spare tubes, saddlebag, water bottle cages etc.In the end, your success in obtaining complete recovery for your loss will depend on how thorough you are in providing this documentation and the language of your insurance policy.For the future, I recommend that you document the existence of all ofyour bicycles by making a video or photographic record. You might alsoconsider contacting your insurance agent and provide an inventory listalong with itemized values. Some insurance companies will offer a separatepolicy, usually called a floater, which will allow you to tailor your coverageto ensure complete recovery for your stolen or damaged bicycles.Additionally, expanded coverage is often available if the current limitsare too low to completely cover your property losses. You might considerchoosing special replacement cost coverage which is coverage that allowsyou to insure your bicycles for full replacement value with out deductionfor depreciation. Many insurance companies will deduct 10 percent yearfrom the original purchase price, which is ridiculous-with that estimationprotocol, a perfectly maintained 1993 bicycle purchased for $3500 in 1993would be worth zero in the eyes of your insurance company!(This advice is for replacement of stolen bicycle. In the near futureI will answer a question in which I discuss recovering property damage to a bicycle resulting from auto accidents.)
Good Luck
Bob


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking with Bob Mionske

Dear Bob, I was commuting to work two months ago and a guy pulled out of an apartment parking lot just as I was passing. I hit the side of his vehicle and went face first into his windshield. I have been left with large medical bills and several large scars on my face. His insurance company has offered up $50,000 policy limits, which I am about to accept. They told me I have to sign a release before cashing the check. What should I know before I sign? Dave C.Austin, Texas Dear Dave, The release the insurance company will require you to sign before you can accept the policy limits is a

By Bob Mionske

Dear Bob,

I was commuting to work two months ago and a guy pulled out of an apartment parking lot just as I was passing. I hit the side of his vehicle and went face first into his windshield. I have been left with large medical bills and several large scars on my face. His insurance company has offered up $50,000 policy limits, which I am about to accept. They told me I have to sign a release before cashing the check. What should I know before I sign?

Dave C.
Austin, Texas

Dear Dave,

The release the insurance company will require you to sign before you can accept the policy limits is a legally binding document in which you (as well as your heirs, executors, administrators, successors and assigns) acknowledge receipt of the $50,000 and agree to release, acquit and forever discharge the negligent driver and his insurance company from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever – or something to that effect. In other words, by signing the release your rights against the tortfeasor (bad driver) and his insurance company are forever extinguished.

Before signing this release, you need to obtain proof from the underlying insurance policy that the $50,000 is truly the limits of the policy covering the driver. Obviously, if you have suffered medical expenses, lost wages, property damages and pain and suffering in excess of the $50,000 being offered, you will want to be able to obtain the full measure of your damages. You should request the declaration page of the insurance policy in question. There may be additional insurance coverage available from your auto insurance policy under the Uninsured/ Underinsured Motorist coverage provision (UM/UIM).

UM/UIM pays your losses from an accident caused by a driver who either carries no insurance or too little (it also can cover your damages from a hit-and–run accident). If you intend to make a claim against your UM/UIM policy, you must obtain permission from the insurance company before settlement and release of the at-fault driver. This is critical – failure to notify your insurance company before signing the release with the bad driver’s insurance company will mean the UM/UIM policy (which you have paid for through with your premium payments) will be unavailable.

The bottom line is that you need to obtain permission from your insurance company before settling for the policy limits of his insurance company if you want access to your UM/UIM coverage.

Good luck,
Bob


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Bob;I don’t know if you can help me, but I am an employee at a large independentbicycle shop in the northwest. I love my job and most of the other employees.But, there is a manager who, after I turned down his offer to go out ona date, has been very vindictive and unfair towards me.What can I do to stop his harassment and what are my rights?L- SeattleDear L,I assume that by large, the shop has more than 15 full-time employees,which qualifies you for protection under both federal and state law againstthis type of sexual harassment. I am not sure exactly what kind of treatmentyou are being

Another Shop of Horrors

By Bob Mionske

Dear Bob;
I don’t know if you can help me, but I am an employee at a large independentbicycle shop in the northwest. I love my job and most of the other employees.But, there is a manager who, after I turned down his offer to go out ona date, has been very vindictive and unfair towards me.What can I do to stop his harassment and what are my rights?
L- SeattleDear L,
I assume that by large, the shop has more than 15 full-time employees,which qualifies you for protection under both federal and state law againstthis type of sexual harassment. I am not sure exactly what kind of treatmentyou are being subjected to, but if you have are demoted or fired as a directresult of your refusal to date the manager, you will, of course, be entitledto monetary damages for lost wages (both back and future- This is calleda quid pro quo claim).You may also qualify for monetary damages for mental anguish and possiblyfor punitive damages depending on how egregious the harassment is. Finally,if you prevail in court, you may receive monetary damages for your attorney’sfees and costs.In order to classify the behavior as sexual harassment, it must be unwelcome.In other words, you cannot reciprocate- that is, you must oppose the behavior.I would suggest that you make it loud and clear to your manager that youare opposing the behavior. If it does not stop, report it to the next incommand. This issue brings up another subject: is there an employee manualand does it address sexual harassment?If there is no manual, the shop may be liable for punitive damages.If there is a manual, follow the complaint procedures in it, and I suggestthat you document with whom you have spoken, when it took place and whatthe response was to your complaints. It is also a good idea to keep a journaldocumenting the harassment – when, what, and who the witnesses were.The fact that the guy harassing you is a manger (versus just anotherco-worker) automatically imputes liability on the company. Any action thata manager/supervisor takes is an action on behalf of the company, but youshould still bring this issue to someone at the next level. If the companyimmediately rectifies the problem, it is doubtful that you will have anysignificant damages.If you complain and are then subjected to further poor treatment, youmay have an additional claim of retaliation, under both state and federallaw.Should the harassment continue after your complaints, I would highlyrecommend that you seek legal counsel right away. The statutes of limitationwith these cases are not very long, and you must exhaust the administrativefiling requirements prior to filing in federal court if that is the venueyou choose (versus state court).Good luck
Bob(Legal consultation provided by employment attorney Liz Farrell)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Bob;I was reading an article about a race in which I participated. In the article a fellow competitor made a few comments about me that are untrue. I am not the litigious by nature and plan to do nothing about his lies, but could I sue him for lying about me?AnonymousDear A;In order to succeed with a defamation claim (the legal term which includes both slander - spoken and libel - written) you must prove the following elements.First, you must prove that someone made, either spoken a written, untrue statement of fact about you. If the statement is true, no matter how horrible, there is no

Can he really say that?!?!?!

By Bob Mionske

Dear Bob;
I was reading an article about a race in which I participated. In the article a fellow competitor made a few comments about me that are untrue. I am not the litigious by nature and plan to do nothing about his lies, but could I sue him for lying about me?
AnonymousDear A;
In order to succeed with a defamation claim (the legal term which includes both slander – spoken and libel – written) you must prove the following elements.First, you must prove that someone made, either spoken a written, untrue statement of fact about you. If the statement is true, no matter how horrible, there is no defamatory remark and, thus, no defamation. In other words, truth is an absolute defense to defamation. Also, the statement must be one of fact versus one of opinion, which is, generally, afforded First Amendment protection. Without knowing exactly what was written about you, I cannot comment as to whether or not you have a defamatory remark. If the racer said you suck. Well, he is within his right to offer his opinion. If however, he stated that you are doping with hamster blood or sleeping with a race official –and it’s untrue, then you have a defamatory comment.Second, the comment has to be published, either spoken or written, to a third party. If you read the comment in an article somewhere, you have this element covered.Third and fourth, you must suffer damages because of the comment. Some states have what is called “slander per se.” Slander per se is when the comment was so horrifying that damages are presumed. Traditionally, slander per se comments were those comments which really could ruin a person’s reputation. For example, slander per se comments included those that stated an individual had a loathsome disease, was a prostitute, or could not perform his/her job.Proving damages and causation are not very easy prongs to satisfy. You must demonstrate more than just hurt feelings. You must demonstrate that the comments caused your reputation to be severely damaged and that you suffered economically as a result. For example, if you lost an opportunity with another team (loss of salary damages) because of the comment, you would satisfy this element.As a practical matter, public figures have to have “thick skin”. I imagine famous people learn to laugh at much of what they read. In recent years however, celebrities are taking action against what they consider slander and libel with good results.Good luck
Bob Mionske


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking – with Bob Mionske

Hi, Bob, I had a strange thing happen to me the other day. I rode my cruiser bike to a hardware store near my home and locked it to the rack in front of the store. When I returned from shopping inside the store, my cruiser bike was gone. I had used a very thick cable and lock, and there was no sign of the cable or lock, so I pulled on the rack and it lifted off the sidewalk. It would have been simple to slide the cable off the rack and walk away with the bike. My question is whether the store is responsible for the theft of my bike, as they should have secured the rack in a permanent way.

Nice rack (not)

By Bob Mionske

Hi, Bob,

I had a strange thing happen to me the other day. I rode my cruiser bike to a hardware store near my home and locked it to the rack in front of the store. When I returned from shopping inside the store, my cruiser bike was gone. I had used a very thick cable and lock, and there was no sign of the cable or lock, so I pulled on the rack and it lifted off the sidewalk. It would have been simple to slide the cable off the rack and walk away with the bike. My question is whether the store is responsible for the theft of my bike, as they should have secured the rack in a permanent way.
Paul Erickson
Wilson, NC

Dear Paul,

I have heard of this happening before. In fact, I believe some bike thieves loosen or disconnect bike racks from their mountings at night and wait for the unsuspecting cyclists to attach their bikes. I suppose it takes but a few seconds to abscond with the goods.

Anyway, your question involves the liability, if any, of the store. Of course, some would point out that the store provides the ability for cyclists to lock their bikes as a courtesy and they should not be punished when a third party commits a crime. I tend to agree with this perspective with a few exceptions.

For instance, you could argue that the store provides the rack to customers to increase sales. This is a logical argument, but one that falls a bit short of attaching liability, in my view. If, however, the store is on notice that the rack is unsecured and that other cyclists have been victimized by bike thieves and they do nothing to warn or remedy the situation, I may change my mind.

Other issues to consider include whether the rack is on store or public property and whether the store caries a theft policy that will cover your loss. Typically, businesses post warnings on the premises that patrons leave their property unattended at “their own risk”. This warning is normally directed at motor vehicles and their contents parked in the lot while the vehicle owners shop, but could be argued to apply to your situation as well.

By posting these warnings, businesses succeed in avoiding liability for theft and property damage, with mixed results depending on the state law and underlying facts and circumstances.

You described your bike as a “cruiser.” If your bike was inexpensive, I would probably let the issue go without taking legal action. If the bicycle was valuable, you might consider approaching the store to investigate whether there is an insurance policy in effect that would cover your loss.

Lastly, some home owner/renter policies will cover theft – even away from home – but you have to look to the policy to determine if you have coverage.

Good luck,
Bob

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Hi Bob;I have been working in a bicycle shop for the last three years. Lastweek my manager walked up and said it was my last day. He gave no explanation,no written reason.Don’t they have to give me warnings before terminating me?Thanks in advanceTim SPortland, ORTim;When in doubt, go to an expert. In this case, I consulted with Oregonemployment lawyer, Liz Farrell, an excellent attorney (and pretty goodex-wife!). Her response follows:Oregon is what is called an "at-will employment" state (versus a "cause"state). At-will employment means that your employer may take whatever adverseemployment

By Bob Mionske

Hi Bob;
I have been working in a bicycle shop for the last three years. Lastweek my manager walked up and said it was my last day. He gave no explanation,no written reason.Don’t they have to give me warnings before terminating me?
Thanks in advance
Tim S
Portland, ORTim;
When in doubt, go to an expert. In this case, I consulted with Oregonemployment lawyer, Liz Farrell, an excellent attorney (and pretty goodex-wife!). Her response follows:Oregon is what is called an “at-will employment” state (versus a “cause”state). At-will employment means that your employer may take whatever adverseemployment action (e.g., termination, demotion, etc.) he/she wants forwhatever reason he/she wants. In fact, an employer does not even need tohave a reason for such action, and if a reason is provided, it doesnot need to be a valid or fair reason.A termination is only wrongful if you were terminated because of yourmembership to a legally protected category. There are federal, state, andeven city ordinances which outline these categories, some of which overlap.The most well-known catagories, of course, are gender, race, national origin,age, disability and religion. There are other categories, as well – thefact that you had filed a workers’ compensation claim, taken time off underthe family medical leave act (FMLA) or the Oregon family leave act (OFLA),or if you reported some illegal behavior that was occurring at the shopand were then retaliated against for having done so.If your employer fires you because he/she just doesn’t like you or yourhair or your clothes, you have no claim. Remember, you must be able toprove that the termination was because of your membership to a legallyprotected category. If you had an employment contract – which the vastmajority of workers do not have, you would not fall within the purviewof the at-will laws and may, therefore, have a breach of contract claim.Also, in some rare instances, an employee handbook may be upheld by thecourts as a contract, thus giving way to a breach of contract action.Some related issues: File for unemployment. Also, remember, if an employeeis terminated, all wages earned are due not later than the end of the firstbusiness day after the termination. If you were not paid earned wages,you may very well have a wage and hour claim against your employer andshould seek legal counsel. You may also contact Oregon’s bureau of laborand industries (BOLI) directly to speak with the wage and hour division(503-731-4074). This agency processes these types of complaints as wellas civil rights complaints (503-731-4075).Good Luck-Bob
(Liz Farrell is an employment attorney in Portland, Oregon and canbe reached at farrelllaw@hotmail.com)
 


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Bob;What are the most common types of bicycle accidents?Mike APhoenixDear Mike;For many years, there was vehement debate over this question. Virtuallyall statistics relating to bicycle accidents came from police accidentreports, and critics maintained that this database systematically under-reportedbicycle wrecks that did not involve a motor vehicle. Finally, in 1999,a team of researchers at the Highway Safety Research Center (HSRC) of theUniversity of North Carolina at Chapel Hill performed a large-scale studyof bike wrecks based on emergency room admissions. Their findings largelysupported

Crashing by the numbers

By Bob Mionske

Bob;
What are the most common types of bicycle accidents?
Mike A
PhoenixDear Mike;
For many years, there was vehement debate over this question. Virtuallyall statistics relating to bicycle accidents came from police accidentreports, and critics maintained that this database systematically under-reportedbicycle wrecks that did not involve a motor vehicle. Finally, in 1999,a team of researchers at the Highway Safety Research Center (HSRC) of theUniversity of North Carolina at Chapel Hill performed a large-scale studyof bike wrecks based on emergency room admissions. Their findings largelysupported the critics: only 320 of the 1115 admissions resulting from bicycleaccidents involved a motor vehicle. However, only 28 of the 1115 incidentsinvolved a bike-bike crash. (The critics had predicted that these wouldbe a much larger percentage of injury-producing bicycle crashes.)On the other hand, a majority of the crashes that required an overnightstay in the hospital did involve a motor vehicle. Thus, while onlyabout a third of all injury-producing bicycle crashes involve a motor vehicle,about three-quarters of all serious injuries result from car-bike crashes.The HSRC has also undertaken two large studies of car-bike crashes usingpolice accident reports. In these studies, the Center identified the varioustypes of accidents that occurred and the accidents that resulted in veryserious or fatal injuries (VS/F) to the cyclist. The results were interesting.Several types of accidents had identifiable characteristics that set themapart from the norm (in technical jargon, these were the “over-representedvariables”). These include:No. 1: Car turns left into path of oncoming cyclist
12.2 percent of all car/bike crashes
11.7 percent of VS/F car/bike crashesOver-represented variables:
-Bicyclists from 20-44 years old
-Drivers over 65 years oldNo. 2: Car runs into cyclist while traveling in the same direction
Half involve a cyclist going straight ahead
Half involve a cyclist turning left from the right-hand edge of road
8.6 percent of all car/bike crashes
14.6 percent of VS/F car/bike crashesOver-represented variables:
-Drivers from 16-19 years old
-Darkness
-Two lane roadsNo. 3 Car hits cyclist at right angle in intersection with nosignal or stop sign
21.7 percent of all car/bike crashes
10.5 percent of all VS/F car/bike crashesOver-represented variables:
-Bicyclists from 15-19 years old
-Wrong-way cyclistsNo. 4 Car hits cyclist at right angle in intersection after bicyclist runs stop sign or stoplight
16.8 percent of all car/bike crashes
18.9 percent of all VS/F car/bike crashesOver-represented variables:
-Bicyclist from 0-14 years oldNo.5 Car hits cyclist at right angle in mid-block after cyclist rides out from driveway
11.8 percent of all car/bike crashes
14.2 percent of all VS/F car bike crashesOver-represented variables:
-Bicyclist from 0-14 years oldThe bottom line is that the type of accident is largely dependent upon the type of cyclist. For children and inexperienced cyclists, running stop signs and shooting out from a driveway are the most frequent cause of injury accidents.On the other hand, the types of accidents that occur to avid cyclistsmore closely resemble those experienced by motorcyclists than those happeningto infrequent cyclists or child cyclists. Three things that  likelyreaders of this column should watch out for are:1) Drivers that make a left turn in front of them
2) Getting flattened from behind, especially on narrow, two-laneroads as darkness approaches
3) Young, impetious auto driversFurthermore, my own personal experience has taught me to be alert duringthe following scenarios:
 
• If I see a vehicle approaching while riding on a narrow road, I lookback to see if any vehicles will be overtaking me and if all three of usare going to meet at the same time. I have chosen to ride off the roadwhen two semi-trucks and I all have converged on a narrow roadway and itis clear that the overtaking truck is not going to wait to pass.• When approaching a road hazard (pothole, debris, etc) on a roadwaywith little or no shoulder, I don’t veer out into the lane without firstlooking back. If I have no time to look, I would rather bunny hop the hazard,go off into the ditch or ruin my rim, than be hit by a passing vehicle.I have seen riders commit this mistake on many occasions.• When riding into a setting or rising sun, especially when the glareis intense, I change routes if possible knowing the drivers passing mehave compromised visibility.• When passing on the right of stopped traffic (which is illegal insome states), I am on the look-out for a vehicles that are crossing ina perpendicular direction after relying on the waves of stopped drivers(also I watch for these queued drivers to turn right without warning orsignal).• In spite of making eye contact with drivers entering the roadway fromside streets or driveways, I prepare myself for evasive action. All toooften I falsely believe they have seen me and are going to wait, only towatch in horror as the step on the accelerator just as I am passing them.
 
In the past, experienced performance cyclists had a legitimate gripethat the analysis of bicycle accident records was skewed towards the needsof children and casual cyclists. However, with the work of the HighwaySafety Research Center (largely under the direction of epidemologist JaneC. Stutts), quality data and analysis suitable to the needs of experiencedperformance cyclists is now available. Most of this information is availableat a FederalHighway Administration website.And be careful out there,
Bob
(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast Univerity)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Hi Bob,I have been following your column and appreciate the legal advice you offer to cyclists. Do you have any advice about avoiding accidents for cyclists?Ted G.Menasha, WIDear Ted;That's a great question and one that I thought might best be answered by an expert. So, I went to forensic engineer James Green who specializes in reconstructing bicycle and pedestrian accidents. So here's James's list of the most effective steps you can take to avoid accident and injury:Helmet - One of the absolutely dumbest things a cyclist can do is ride without a helmet. There is no excuse for not having one

Ounces of prevention – worth pounds of legal advice

By Bob Mionske

Hi Bob,
I have been following your column and appreciate the legal advice you offer to cyclists. Do you have any advice about avoiding accidents for cyclists?
Ted G.
Menasha, WIDear Ted;
That’s a great question and one that I thought might best be answered by an expert. So, I went to forensic engineer James Green who specializes in reconstructing bicycle and pedestrian accidents. So here’s James’s list of the most effective steps you can take to avoid accident and injury:

Helmet – One of the absolutely dumbest things a cyclist can do is ride without a helmet. There is no excuse for not having one on your head. I know you see the riders in the grand tours without them, but even that is now changing. Even the best bike handlers in the world fall. The head can be subjected to up to 5000 pounds of instant force from a simple fall. The helmets that are currently on the market can dissipate the force down to 800 pounds or less. I have tested helmets and head forms in the laboratory for years. The data generated by other engineers also shows the same thing. Helmets work and no rider should ride without them. I hear the argument all the time that it is “my choice.” Sometimes this comes from someone without adequate medical insurance who will have to be supported as a vegetable when the accident happens. Take a melon and drop it on the asphalt from head height and watch what happens. That’s your head with out a helmet. Helmets also enable a cyclist to be seen.

Conspicuity – This term refers to the ability to be seen. Next to not wearing a helmet this is the main thing that cyclists can do to protect them selves. I was the Engineer for the defense in the famous Derby case. In that accident the cyclist was proceeding down the middle of a road on the double line at night dressed in black when he struck the rear end of a vehicle that turned in front of him. He had no lights on the bike. The Plaintiffs alleged that the bike industry was responsible for the accident by failing to force the plaintiff to put a light on his bike. They also alleged that the plaintiff was “fooled” into thinking the retro-reflectors on the bike would provide protection for him. Although this kind of pure junk science may occasionally prevail in the courtroom, the responsibility of being seen is the cyclist’s, not the bike industry. No matter how much money you may get from prevailing in litigation it doesn’t begin to compensate you for what a motor vehicle can do to flesh and bone.

Wear bright clothing during the day. Lime green and yellow are the best colors. At night always have a light on the bike both forward and to the rear. If possible avoid riding at night. It is just a very dangerous time to be out there. The more lighting you have the better. I look like a Christmas tree when I am out there if I must ride at night.

Where to Ride – One thing that really good cyclists sometimesdo that gets them injured is to assume because they are so fit they can just ride anywhere. While it is true that cyclists have a right to ride almost everywhere motorized vehicles do, there is a limit to the safe areas. If you are going down a road and tractor trailers are blowing by you six inches from your elbow, at 65mph, you are in the wrong spot. The data obtained by Dr. John Pucher’s research at Rutgers give insight to where to safely ride. Find roads that are designated bike routes or have sufficient area to the right for riding. Whenever possible, find those roads where you do not impede traffic and where traffic can safely pass you. If you are in the middle of a lane and you have cars stacked up behind you, all you are doing is causing resentment and putting yourself at risk. Just because you have a right to be there doesn’t mean it is a good idea.Find good training loops where people get to know you and you can get help if you need it. It is during training, not racing, that most serious cycling injuries occur, so make friends out there, you may need them someday.

Avoid riding in large packs that occupy the entire roadway. A two-line pace line works just fine and cars can get around you. There is nothing gained from obstructing traffic in a big pack. Races, where motorized vehicle traffic is controlled, are the place to form up into a huge peloton.

Never race through town to get to your training loop. There is nothing gained by it and it puts you at risk. Cool it, and use it as a warm-up or warm-down. Many cycling accidents occur near home.

Do not ride on sidewalks. Most cities have ordinances against bikes on sidewalks but even where it is allowed, it is a bad idea. The risk that drivers will not look for your presence when crossing crosswalks and sidewalks is fairly high.

When you cut through all the engineering to reconstruct cycling accidents, avoidance comes down to doing all you can to protect yourself before you get injured. No matter how “right” you may be, if you are hit by a motor vehicle you will never be the same. Protect your self by using good common sense.


(Jim Green is a professional Engineer who specializes in reconstructing bicycle and pedestrian accidents at GE Engineering inc. where he is president. Jim is an accomplished triathlete and bicycle racer. For more information about Jim and his services go to www.bikereconstruction.com)

Legally Speaking – with Bob Mionske

Bob;Is it possible to get comprehensive bicycle insurance that will cover theft, injuries to me caused by a motorist, and liability arising from any damage I might cause to someone else while riding?GW Dear GW;In general, there is no such thing in the United States as “comprehensive bicycle insurance,” although it’s pretty common in the United Kingdom. In fact, a quick internet search indicates that “consumer report” type comparisons exist between policies offered by different firms in the UK. Unfortunately, to obtain comparable insurance in the U.S. requires that one “cobble together”

Covering your assets

By Bob Mionske

Bob;
Is it possible to get comprehensive bicycle insurance that will cover theft, injuries to me caused by a motorist, and liability arising from any damage I might cause to someone else while riding?
GW

Dear GW;
In general, there is no such thing in the United States as “comprehensive bicycle insurance,” although it’s pretty common in the United Kingdom. In fact, a quick internet search indicates that “consumer report” type comparisons exist between policies offered by different firms in the UK. Unfortunately, to obtain comparable insurance in the U.S. requires that one “cobble together” coverage from a variety of different sources.

Theft or other off-the-road loss. The typical source for loss by theft, fire, or other off-the road damage or destruction of a bicycle is homeowner’s or renter’s insurance. Most of these policies will pay actual cash value—that is, the cost of replacement minus depreciation. Most personal property depreciates fairly quickly, so if your 1969 genuine old-world Masi gets wiped out in a tornado, don’t be surprised to get a check for only a couple hundred bucks or less. My research assistant, Bruce Epperson, who worked as a bicycle mechanic during college, remembers arguing for an hour with an insurance adjuster who simply could not, would not, believe that any bicycle on earth could cost as much as one thousand dollars!

Also, some renter’s or homeowner’s policies specifically exclude personal property stored in or on a motor vehicle. Thus, if you forget about your rooftop bike rack and pull into a gas station with a low canopy, you could be seriously out of luck. The usual way around all these problems is to get a special property rider attached to your renter’s or homeowner’s policy. Originally used to insure artwork and other special personal property, the coverage value and terms can be adjusted to the needs of the policyholder. The drawback? Special coverage riders can be expensive, especially for out-of-the-home coverage. (Think for a moment like an insurance adjuster–when is the last time you saw anyone take their Picasso etching out for a quick 100K Sunday spin?) Be sure to keep the purchase receipts for all your bicycles and it’s a good idea to keep a photo inventory as well.

Harm you suffer while out on a ride. If you go down, the most likely source of medical coverage is your own health insurance. I am aware of no medical insurance that excludes normal road- or off-road cycling from coverage, and many, many court cases have rejected the idea that cycling is an “extraordinarily dangerous” activity that warrants exclusion. If the insurance carrier even so much as mutters the words “extraordinarily dangerous activity,” you should get a lawyer right away.

If you are hit by a motorist. You can, of course, seek compensation from the motorist’s automobile liability insurance. If the driver isn’t insured, or runs away (One out of every six car-bike wrecks in the U.S. is a hit and run. In some urban areas it’s as high as one in three), can you collect from your own auto insurance company’s uninsured driver coverage? The answer varies widely, depending on the state and the particular situation.

In an Ohio case, a motorist was injured in a collision with a bicycle (no word on how the driver was hurt), and tried to collect from his own auto insurance carrier, but recovery was denied by the insurance company and eventually by the court, which stated:

A strong argument has been made that bicycles are regulated by traffic laws and that the focus of coverage should be whether the tortfeaser’s [That’s the party who did wrong] mode of transportation could pose a risk to the motoring public and not simply whether the vehicle has a motor. While this court is sympathetic to the arguments of [the motorist], it finds no legal authority to extend the definition of motor vehicle in either the insurance policy or this state’s mandatory insurance statute to include bicycles or to find that a policy provision limiting coverage to motor vehicles is violative of public policy.

Lots of pedestrians have been struck by uninsured bicyclists and have tried to collect from their uninsured motorist coverage, with even less luck.

Now here’s the important part: the opposite is not necessarily true! In some states, If you have car insurance and it has uninsured motorist coverage and if you are hit by a car while riding a bicycle and the driver isn’t insured, you will be able to collect from your own insurance carrier’s uninsured motorist coverage.

However, not only does this vary from state to state, it varies from company to company. Be sure to ask your insurance agent for uninsured motorist coverage that will apply even when you are out riding. There is about a 50-50 chance that you can get it if you buy the slightly pricier “all-included” coverage. Then make the agent show you where in the policy’s language that coverage is located. From a legal and financial standpoint, the greatest danger to you as a cyclist is from an uninsured or hit-and-run motorist.

Harm you may cause while out on a ride. What if you make a mistake, say cross wheels with someone in a pace-line, they go down, are hurt, and want to recover your damages? Does anyone cover you? Possibly. First, your homeowner’s or renter’s insurance policy contains liability protection (called Personal Liability Coverage). It’s intended for use if, for example, someone slips and falls in your house. Most policies will also cover damage you accidentally cause while outside your home. The operative word is accidentally. If you (heaven forbid) intentionally hurt someone, most insurance policies of any kind will not cover you, so you may wind up bankrupt and convicted of assault. So keep your cool out there, even when everyone else is losing their heads.

Specialized needs. For instance, insurance for a bicycle messenger or pedicab operator, policies are available, usually through membership in a trade organization. These can be found through the web, or drop me an email, and I’ll give you some internet sites to look at. By the way, if you need a source of insurance as an individual, recreational cyclist, some membership organizations (including many of the larger local clubs) offer medical insurance that will cover you if you are hurt in an accident while riding, so it pays to look around and ask.

Yes, there ought to be such a thing as comprehensive bicycle insurance in this country, but until there is, it is still possible to put together comprehensive insurance if you shop carefully for homeowner’s/renter’s insurance, auto insurance, and club membership, And don’t forget—a basic health plan is still your first line of defense, so make sure you have something that covers catastrophic illness or injury.Thanks and good luck,
Bob(research and drafting assistance provided by Bruce Epperson-law student-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking with Bob Mionske

Dear Bob;Has the United States Supreme Court ever heard a case concerning bicycles? -- T.M. Dear T.M.;Yes. In fact, over the years, it has heard several cases involving bicycles and/or cyclists. Probably the two most famous cases were Pope Manufacturing Company v. Gormully(1896) and United States v. Arnold, Schwinn & Company (1967). In the early years of cycling, Colonel Albert A. Pope was the dominant force in the industry—the Bill Gates of his era. He secretly bought most the early patents on which the technology of the bicycle was based. In 1884, Pope licensed a competitor, the

Do the Supremes do bikes?

By Bob Mionske

Dear Bob;
Has the United States Supreme Court ever heard a case concerning bicycles? — T.M.

Dear T.M.;
Yes. In fact, over the years, it has heard several cases involving bicycles and/or cyclists. Probably the two most famous cases were Pope Manufacturing Company v. Gormully(1896) and United States v. Arnold, Schwinn & Company (1967).

In the early years of cycling, Colonel Albert A. Pope was the dominant force in the industry—the Bill Gates of his era. He secretly bought most the early patents on which the technology of the bicycle was based.

In 1884, Pope licensed a competitor, the Gormully & Jeffery Manufacturing Company (G&J), to permit the use 15 Pope patents. In return for this license, G&J promised not to use another 65 Pope patents or to use any similar feature, even if it held a legitimate patent on the same feature. Thus, G&J were prohibited from using, for example, hollow metallic rims, even though they had their own patent for a hollow rim. The agreement expired on April 1, 1886, the day that the last of the 15 Pope patents expired. A month after the license agreement expired, G&J brought out a new bicycle, the American Champion, a model that incorporated several features that overlapped with those in the 65 Pope patents. To Gormully and Jeffery’s surprise, Pope sued them for breach of contract.

What G&J had signed, Pope’s lawyers explained, was not a license, but a contract. True, the contract did give Gormully & Jeffery the right to use 15 Pope patents and the right to cancel or terminate the license. However, ending the license did not cancel the contract.

Thus in exchange for a two year license to use 15 patents, G&J had agreed to abide by the terms of the entire contract in perpetuity, including the promise not to use any feature specified in the 65 specified Pope patents and the promise to never contest their validity or the validity of their ownership by Pope.

Gormully & Jeffery’s attorney responded that their interpretation of the document was a “natural conclusion that any unsuspecting man, not a lawyer, would have drawn,” and that “The contract . . . was an artfully constructed snare to bind the defendant in a manner which he did not contemplate at the time he became a party to it.”

The Supreme Court agreed:

The law should not encourage parties holding such patents to invent or devise schemes by which to obtain admissions, directly or indirectly, of the validity of their patents, so as to foreclose investigation and discussion upon the question of their validity; and hence we simply say that this contract seems to be so oppressive, and so unjust and inequitable in its terms, and so contrary to public policy, that it ought not to be enforced.

The ruling broke Pope’s patent monopoly and ushered in a “Golden Age of Cycling,” lasting from 1890 to 1899. By 1900 there were 316 separate bicycle makers, and one bicycle for every eight people in the United States.

United States v. Arnold, Schwinn & Co. was also a case concerning business practices. After World War II, Frank W. Schwinn, the dour but tireless heir to the Schwinn bicycle empire, became exasperated by conditions within the bicycle industry.

Most bicycles were sold by auto supply chains such as Goodyear, B. F. Goodrich, Western Auto and OTASCO (Oklahoma Tire and Supply). The buyers for these chain stores negotiated directly with the large suppliers of bicycle components (Bendix, New Departure, Torrington) to fix prices for the parts that they sold to Schwinn for use in their private-label bicycles. The chain stores and the component makers worked together to squeeze all the profits out of the bicycle maker. Frank Schwinn decided to fight back by eliminating the tire chains. However, many independent bicycle dealer shops were simply dirt-floored lawnmower repair shops with proprietors who knew little about bicycles and usually cared even less.

To solve the problem, Schwinn implemented a “Schwinn Approved” dealer program, featuring frequent site inspections, rigorous training of mechanics, a fixed retail price schedule, and protected market areas. The chain stores were cut loose and most of the “lawnmower hacks” were dropped. However, the “Schwinn Approved” system also restricted dealers to selling primarily Schwinn products.

This mandate drew the ire of the Eisenhower administration, which was trying to help bolster the weak post-war British Pound by encouraging the import of English 3-speed bicycles. Columbia Bicycle Company president Norman Clarke recalls being told point-blank by American Commerce Department officials that the U. S. bicycle industry would be sacrificed to help the British rebuild their export trade.

After six years of attempted administrative sanctions, the United States Department of Justice sued Arnold, Schwinn and Company in 1958 to block the fixed prices and protected market areas of the “Schwinn Approved” system. After hearing both sides, the United States District Court for Northern Illinois concluded that:

The Schwinn franchising system, as shown by the evidence, is reasonable, fair and a good business procedure under all the circumstances existing in the bicycle industry. The defendants [Schwinn] are not guilty of violating the Sherman Anti-Trust Act in developing and carrying out such a franchising plan.

The government appealed to the Supreme Court, arguing that while the District Court may have been correct in situations where the factory sold bicycles directly to retailers, about half of Schwinn’s output was sold to 22 independently-owned regional distributors. When these distributors took title to the bicycles, the government argued, Schwinn’s legitimate authority to mandate prices and exclusive territories ended.In 1967, The Supreme Court agreed:

Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and efforts to restrict territory to whom the product may be sold, whether by explicit agreement or silent combination, is a violation of the Sherman Act.

As a result, the Schwinn company began buying its regional distributors, a process not completed until 1976. A year later, the United States Supreme Court, in Continental T.V. Inc v. GTE Sylvania, overruled its own decision in United States v. Arnold, Schwinn & Co. It was one of the very few instances in which the high court admitted that it had made a mistake.Several historians have conjectured that because of the money that Schwinn had to dedicate to buying its distributors, it was unable to modernize its Chicago factory during the great bicycle boom of 1970-72, and could not implement plans open a totally new factory in Tulsa, Oklahoma in the mid-1990’s. As a result, the company fell into bankruptcy in 1998.Thus, both Pope Manufacturing Company v. Gormully and United States v. Arnold, Schwinn and Company marked milestones in the U.S. bicycle industry. Pope opened the door to what would soon become a vibrant bicycle industry; Schwinn led to the end of the all-American bicycle, and with it closed a century-long chapter in the history of the American bicycle.Thanks for your question,
Bob-(research and drafting assistance provided by Bruce Epperson-law student-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Bob;If there is a bike lane and I choose to ride in the lane, can I beticketed?Mark O,Portland, Oregon Dear Mark; If I understand correctly, you are asking two questions: 1) If there is a bicycle lane, and the state has a “ride as farto the right as practiable” statute, should you legally follow the lane,or move to the right “as far as safe and practical” on the roadway?2) Is the bicycle lane a part of the roadway, and do the rulesof the road govern it? I’ll take the second question first, because it’s easier. The answer is yes, a bicycle lane is part of the roadway. A few

Following the path

By Bob Mionske

Dear Bob;
If there is a bike lane and I choose to ride in the lane, can I beticketed?
Mark O,
Portland, Oregon

Dear Mark;

If I understand correctly, you are asking two questions:

1) If there is a bicycle lane, and the state has a “ride as farto the right as practiable” statute, should you legally follow the lane,or move to the right “as far as safe and practical” on the roadway?
2) Is the bicycle lane a part of the roadway, and do the rulesof the road govern it?

I’ll take the second question first, because it’s easier.

The answer is yes, a bicycle lane is part of the roadway. A few weeksback, we discussed the difference between a highway (a hypothetical spacebetween two boundary lines, called “right-of-way” lines) and a roadway(the prepared surface between the two edges of the road). The distinctionbetween these similar, but different, concepts has lead to some odd results.Most of these have resulted from varying interpretations of whether sidewalksconstitute a part of the roadway. For example, in 1996, the Californiaattorney general determined that sidewalks were a part of the roadway,that traffic laws did apply to the sidewalk, and therefore wrong-way bicyclingon the sidewalk was illegal. (To the best of my knowledge, this has neverbeen enforced. Someone out there may know the answer to this.) The useof crosswalks and road shoulders by bicycles and drunk cycling on the sidewalkare other situations where the issue has been raised. Generally speaking,riding on any portion of the roadway except a sidepath makes a cyclistsubject to applicable traffic law.

The answer to first question is that it is not illegal to follow thebike lane, even though it may not be the farthest safe place to the rightto ride. Oregon code is very exact about what is required of a cyclistin “riding to the right.” Section 814.430, Oregon Revised Statutes,defines the offense of “Improper Use of Lanes” as:

1) Riding a bicycle at less than the normal speed andtraffic, and
2) Not riding as close as practicable to the right curb or roadedge.
Section 814.430 makes six specific exceptions to the general rule:
1) Overtaking another vehicle going in the same direction;
2) Making a left turn;
3) When necessary to avoid an obstruction or danger (includinganimals!);
4) On a one-way street, where it is OK to ride as far to theleft or right as far as practicable;
5) When riding beside another bicycle going in the same direction,provided both are in the same traffic lane;
6) When operating within a bicycle lane.
Because the use of a marked bicycle lane is always an exception to improperuse of lanes, it is never illegal to ride within the lane, even if it ispossible to ride farther to the right. On the other hand, unless the cyclistcan establish one of the other five criteria exist to justify riding outsidethe bicycle lane, riding in the adjacent traffic lane would constitute“improper use of lanes.”

The codes in other states are sometimes not written as precisely asthose in Oregon. In New York, for example, Section 1234 of theVehicle and Traffic Code states that a cyclist may ride “either ona useable bicycle or in-line skate lane” or, if none exists, “near theright hand curb or edge of the roadway.” The New York code also makes exceptionsfor obstructions or left turns.

Sections 21208 through 21211 of the California VehicleCode read much like the Oregon code, except that riding two abreastis not an exception, and preparing for a right turn is an allowable exception.California, unlike Oregon, requires any bicyclist moving out of the bicyclelane for any permitted purpose to yield to overtaking traffic in the adjacenttraffic lane. It is also refreshing to note that Section 21209 and 21211make it illegal for motor vehicles to travel in, or block, bicycle lanes.(Garbage trucks and delivery vehicles are exceptions. The second of thesepose a glaring loophole in what is otherwise a well thought-out law.)

Florida’s section 316.2065(5) is again similar to the Oregonlaw. It requires cyclists to ride as far as practicable to the right exceptfor overtaking other cycles or vehicles, left turns, obstructions, one-waystreets (allowing riding to the left or right), or riding two abreast withina bicycle lane. Florida’s version has two unique features: cyclists arefreed from the “as far to right” requirement if the rightmost travel laneis of “substandard width.” Also, rather than specify “bike lane,” Floridauses the term “any part of the roadway set aside for the exclusive useof cyclists,” allowing greater flexibility to permit road shoulders orwide curb lanes to function as bike lane equivalents. In a glaring oversight,riding solo within a bike lane is not expressly listed as an exceptionto the “ride to the right” rule, leading to the astounding result thata solitary cyclist riding in a bike lane when space is available to herright may be breaking the law, while two side-by-side cyclists, both ridingwithin the bike lane, would be perfectly legal. (I found no instances wherea Florida cyclist riding within a bike lane was cited for not riding tothe right, however.)

Wisconsin’s section 346.80 also allows cyclists to deviate fromthe “ride to the right” rule if the right-hand lane width is substandard.However, Wisconsin’s statute does not specifically allow bike lane useas a exception to the “ride to the right” rule, although overtaking, obstructions,left turns and one-way streets are all listed. Wisconsin actually requiresthat cyclists pass either parked or moving vehicles with a three-foot gapin between.

My admittedly brief survey of state statutes and case law leads me totwo general conclusions regarding the conflict between “ride to the right”and “ride in the bike lane:”
1) I have found no case where a single cyclist riding withina bicycle lane was cited for failing to ride farther to the right in theroad, and;
2) Most states would permit a police officer to cite a cyclistfor riding to the left of the bicycle lane, absent some special circumstancesuch as turning left, avoiding an obstacle, passing another bicycle ormotor vehicle, or riding on a one-way street.

Good luck-Bob

(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally speaking with Bob Mionske

Dear Bob;Do you have any information regarding the procedures and method inwhich athletes are selected by the U.S. Anti-Doping Agency drug testing?What is their authority to test? Is the testing method fair and legal asimplemented? What are the ramifications for an athlete who fails to showup for testing?TJColorado Dear TJ;You raise two separate legal questions:1) What are the limits of the authority of the USADA to requiretesting; and2) What are the limits on the USADA or the National GoverningBody (NGB) for enforcing non-compliance, either after a positive test ora failure to comply with

Just say yo!

By Bob Mionske

Dear Bob;
Do you have any information regarding the procedures and method inwhich athletes are selected by the U.S. Anti-Doping Agency drug testing?What is their authority to test? Is the testing method fair and legal asimplemented? What are the ramifications for an athlete who fails to showup for testing?TJ
Colorado
 Dear TJ;
You raise two separate legal questions:
1) What are the limits of the authority of the USADA to requiretesting; and2) What are the limits on the USADA or the National GoverningBody (NGB) for enforcing non-compliance, either after a positive test ora failure to comply with testing (a “no-show”).American athletes are protected from illegal searches and seizures underthe Fourth Amendment to the Constitution. (For legal purposes, the takingof bodily secretions is a seizure; the analysis of those fluids is a search.)The Fourth Amendment, however, only protects the individual from illegalgovernmental intrusion.The U.S. Supreme Court has determined that drug tests administered bylocal school boards and by private railroads, acting under the directionof the Federal Railroad Administration, are state and federal governmentactions, respectively. Because the USADA and the U.S. Olympic Committeeare supported and, to some extent even directed, by the federal government,I think a strong case can be made that USADA drug tests are governmentactions, and are therefore covered by the Fourth Amendment.Four recent Supreme Court cases have been heard in the last decade orso concerning suspicionless drug testing. A 1989 case, Skinner v. RailwayExecutives Assn., dealt with mandatory urine tests taken from train crewsinvolved in accidents. A 1995 case, Vernonia School District v. Acton,considered mandatory drug testing of high school athletes. A 2001 case,Ferguson v. City of Charleston, heard arguments over the testingof pregnant women treated at a university hospital. And a case heard onlya few months ago, Pottawatomie County Schools v. Earls dealt withmandatory drug testing of all high school students participating in extracurricular activities.It was Skinner that established that urine testing is a search and seizure.Typically, government searches require either a warrant or probable causethat an illegal act has occurred. But in Skinner, the Supreme Court determinedthat so-called suspicionless searches were acceptable if a special needexisted, and the search was not overly intrusive.Vernonia Schools is probably the most important case for athletes. There,the Supreme Court determined that random drug screening did not violatethe students’ privacy:

Sports are not for the bashful. They require suiting up before each practice or event, and showering and changing afterwards. Public school locker rooms are not notable for the privacy they afford . . . By choosing to go “out for the team,” they [athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.

The Court determined that the need to protect athletes from harm amounted to a “compelling government interest.” In addition, the Court agreed that it was acceptable to single out athletes for particular attention:

It seems self-evident that a drug problem largely fueled by the role-model effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.

The parents of the students in Pottawatomie County Schools argued that the testing of all participants in extracurricular activities—from the football team to the chess club—failed to establish any special need of safety, and demanded that at least some “reasonable suspicion” should be a necessary precondition to selecting a group of students for testing.The Court rejected both arguments, stating that “The Fourth Amendment does not require a finding of individualized suspicion, and we decline to impose such a requirement.”However, in Ferguson, the Supreme Court threw out the City of Charleston’sdrug screening of hospitalized pregnant women. Why? “The immediate objectiveof the searches was to generate evidence for law enforcement purposes.”Crime control cannot qualify as a “special need.” The Court reiteratedthis point in Pottawatomie County Schools:

Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Rather, the only consequenceof a failed drug test is to limit the student’s privilege of participating.

The Olympic Movement Anti-Doping Code includes both suspensions and fines(some as large as $1 million) for drug violations. If these are implementedby the USADA, then it may be possible to argue that the organization iscreeping into the realm of law enforcement. I can find no schedule of sanctionspublished by the USADA, and the only punishments listed in the organization’sannual and quarterly reports to date (the USADA was created in October,2000) are warnings, suspensions and exclusions.So, what is the conclusion so far? Given that the USOC, the UCI andUSA Cycling all apparently agree in public that the sport has a drug controlproblem, it looks like drug screening for licensed cyclists will becomethe norm. Having been selected as a “special needs” category by their ownInternational Federation and National Governing Organization, there isno requirement that USADA needs to demonstrate any “fairness” or “equity”in the frequency or timing of their demands for testing. As ValparaisoUniversity law professor (and cross-county coach) Michael Straubel putit:

USADA, in its efforts to enhance the image of United Statestesting credibility, will expand the numbers, if not the categories, ofthose that it tests. . . now that USADA is in control of testing, moreathletes will be tested more often.

After the Pottawatomie County Schools decision, more than a few sportslawyers are predicting that soon, the daily testing of every athlete atmany universities and high schools will become the norm.What about a positive test or a no-show? The whole point of the USADAprocedure is that all control and authority is removed from the IF (theUCI) and the NGO (USA Cycling). The first step is a Review Board analysis.The USADA makes no pretense that this is a hearing. No one may appear inperson before the Board, and it accepts no testimony. Only documentaryevidence is taken. The only review is a technical and administrative analysisof the drug screen. An approval by the Review Board is not a doping violation.If the Review Board approves the positive result, then the athlete getsher hearing. The USADA uses a trial type arbitration procedure before apanel of American Arbitration Association (AAA) licensed arbitrators. AAAarbitrators are trained professionals frequently used to adjudicate commercialdisputes, such a complaints against stockbrokers or lawyers. One drawbackis that most arbitrators are more familiar with commercial disputes thansports law. On the other hand, they realize that losing a competition licensecan be as important to an athlete as losing a state license is to an engineeror lawyer. Only after the hearing panel returns a finding against the athleteis the suspension or warning issued, and only after the finding is handeddown is the NGO informed of the decision.Many years ago, the Supreme Court, in a famous quote, (at least forlawyers) stated that before any American could be deprived of an entitlementunder law, he deserved “at least some kind of hearing.” The USADA systemfor dealing with positive tests meets the “some kind of hearing” standard.After reviewing the USADA system, Professor Straubel concluded that

Though not perfect, USADA’s system of a preliminary hearing,fairly neutral arbitrators, and no pre-hearing suspension is far betterthan the rather draconian and disorganized system administered by the InternationalFederations outside the United States.

Professor Michael S. Straubel’s article “Doping Due Process: A Critiqueof the Doping Control Process in International Sport” appeared in the Winter2002 issue of the Dickenson Law Review (106 Dick. L.R. 523). -Bob(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Bob;Here’s an odd one for ya: Can someone get their driver’s license revoked for cycling while drunk? Is it illegal and, if so, what can they do to you if you are caught riding while intoxicated?OtisNorth Carolina Dear Otis;I have to admit that at first, I didn’t think this question was really all that applicable to readers of this column. But, the more I thought about it, the more relevant it seemed. For instance, I’m sure many cyclists have attended a summer barbecue by bike only to partake in all that is offered before riding home. Then there is former 7-Eleven rider Alex Steida’s

Drunk Cyclist-dot-Busted

By Bob Mionske

Dear Bob;
Here’s an odd one for ya: Can someone get their driver’s license revoked for cycling while drunk? Is it illegal and, if so, what can they do to you if you are caught riding while intoxicated?
Otis
North Carolina

Dear Otis;
I have to admit that at first, I didn’t think this question was really all that applicable to readers of this column. But, the more I thought about it, the more relevant it seemed. For instance, I’m sure many cyclists have attended a summer barbecue by bike only to partake in all that is offered before riding home. Then there is former 7-Eleven rider Alex Steida’s (the first North American to don the Yellow Jersey in the Tour de France), who used to organize something called the “So you think your tough” bicycle race in which participants had to consume full beer every lap before continuing. Now, that race was held in British Columbia and Canada is almost like a different country, so maybe that doesn’t count, eh?

I also personally recall at least one lightheaded and exciting ride home from a saloon at then end of a long hot day in the saddle. And then there is, of course, a site dedicated to this and other questions of excess at www.drunkcyclist.com and… well, enough said. (Actually, not enough said… a word of caution, don’t open that site at work or in front of your kids or mother, okay?)

At least eight states have determined that drunk cycling falls within their drunk driving statutes: California, Florida, Hawaii, New Jersey, Ohio, Oregon and Pennsylvania. Only a few have said the opposite including Washington State, Illinois and Louisiana.

Generally, the states that have determined that drunk bicycling is a crime have specific language in their vehicle codes applying their drunk driving law to bicycles or making drunk cycling a separate violation. Both Illinois and Louisiana relied on general statutory language.

Let’s compare two states that didn’t have specific language. Florida said drunk cycling is the same as drunk driving and Illinois didn’t. Why?

Both states start with our old and familiar friend, the “all rights and duties” clause:

(Illinois) “Every person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle . . . “(Florida) “Every person propelling a vehicle by human power has all of the rights and all of the duties applicable to the driver of any other vehicle . . . “

Florida’s version is the current model traffic code language, Illinois’ is from the older, early 1980’s version. The same is true for their respective definitions of vehicle:

(Illinois) “Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved for human power.”(Florida)“Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.”

In Florida, a bicycle is a vehicle, while in Illinois a bicycle is treated as if it were a bicycle. Compare the judge’s decision in the two cases:

(Florida) “Had the legislature intended to exclude bicyclists, it could have made [the drunk driving law] applicable only to a “motor vehicle,” as the statutory definition of motor vehicles excludes bicycles.”

(Illinois) “There are two plausible interpretations of [the drunk driving law] when read in conjunction with the vehicle code: 1) Since [drunk driving] applies only to vehicles, its very nature precludes it from being applied to bicyclists; or 2) Since bicyclists are subject to all of the duties applicable to the driver, there is no impediment to applying [the drunk driving law] to bicyclists . . . We determine that the language of the relevant statutes is not sufficiently definite to give the person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. In other words, there is no clear and express legislative intent.”

See what an incredible difference just a few words can make?

Can your license be revoked for drunk cycling?

Four states have heard court appeals where a bicyclist was both convicted of drunk bicycling and where the cyclist’s driver’s license was revoked: Hawaii, New Jersey, Ohio and Pennsylvania. Only Pennsylvania determined that a driver’s license could be revoked for a bicycling violation. The state’s commonwealth court said that:

“If a person has been convicted on three offenses as set forth in the vehicle code that were committed within a five year period, the Department of Transportation must revoke that person’s operating privilege. The fact that the definition of “operating privilege” uses the term “vehicle” rather than “motor vehicle,” clearly denotes that these terms are not limited to matters involving motor vehicles but all vehicles.”

On the other hand, a New Jersey court clearly stated the opposing argument when it upheld a cyclist’s conviction for drunk driving, but refused to suspend his driver’s license:

“The operator of a bicycle is under an obligation to stay off the roads when intoxicated. However, the penalty under [state law] insofar as it requires the forfeiture of the right to operate a motor vehicle, by its nature can have no application to violations involving the operation of bicycles. A cyclist is not prevented by a conviction of drunk operation of a bicycle from using his bicycle on the roads. Since no licensing system exists for bicycles, and no statutory provision indicates that the right to use the roads may be denied a bicyclist, there simply is no way to prevent a drunken bicyclist from repeating his offense.”

So, what’s the conclusion? It’s probably a legislative matter. Those states that put specific language in their code books prohibiting drunk cycling and permitting their license bureaus to revoke a drunk cyclist’s driver’s license will enforce it, and most of those that choose not to probably won’t.

If you are too intoxicated to drive a motorized vehicle, you probably should not ride a bicycle either. However, the idea of mounting a bike when you are too inebriated to drive a car is as old as the invention of motorized vehicles themselves and a Washington State court seemed to endorse this idea when it decided that a cyclist was not subject to the DUI provisions explaining that drunk bicycling, in consideration of the lower traveling speeds and vehicle weight, in most cases, did not present the same risk to society.Good Luck- Bob(research and drafting assistance provided by Bruce Epperson-law student-Nova Southeast University)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Bob;When I go out riding, I usually take my driver’s license with me so I can use it for identification in an emergency. A friend warned me that I shouldn’t do that, because if the police wrote me a ticket and I had my license on me, the state would assess moving violation points. Can they do that?Thanks in advance,Anonymous Dear Anonymous;I have had my share of experience in this area with both police in patrol cars and police on bikes. When I was a student at the University of Wisconsin in the '80s we wanted to know if the bicycle police cruising around campus with mirrored sun

I.D. issues (and we learn of Bob's shady past)

By Bob Mionske

Dear Bob;
When I go out riding, I usually take my driver’s license with me so I can use it for identification in an emergency. A friend warned me that I shouldn’t do that, because if the police wrote me a ticket and I had my license on me, the state would assess moving violation points. Can they do that?Thanks in advance,
Anonymous

Dear Anonymous;
I have had my share of experience in this area with both police in patrol cars and police on bikes. When I was a student at the University of Wisconsin in the ’80s we wanted to know if the bicycle police cruising around campus with mirrored sun glasses could really give you a ticket, whether they could catch you if you ignored their Cartman-like commands to respect their “au thor i ti’!” and what would happen if they caught you attempting to flee.

After … uh… extensive legal research, we found that the answers were: yes, they could write real tickets, no, they couldn’t catch us. Unfortunately, their brothers in blue (and Chevy Caprices) could and a night in jail and a $600 fine answered that last question.

Furthermore, we learned that giving a false name was not a good idea and soon after obtaining your name, your driver’s license information was a quick radio call away. For this reason, I am not sure riding without your driver’s license will work to avoid being ticketed for a violation of the vehicle code while riding your bike.

From a legal standpoint, I didn’t find—a single case where a cyclist was assessed points against their driver’s license for a traffic violation committed while bicycling. This is probably because almost nobody would spend the thousands of dollars necessary to appeal a case to the statewide level, and strictly local cases aren’t usually printed in case reporters. However, the cases I have found strongly suggest that it is possible, if not now, then in the near future.

Let’s start with a 2002 California case, People v. McKay, that has been very controversial, albeit for constitutional reasons having little to do with cycling. McKay was stopped by police for riding his bicycle on the wrong side of the street. The officer asked him for identification and he truthfully replied that he didn’t have any, but provided his correct name and address, which the officer was able to verify by computer. However, the California vehicle code states that if a traffic violator cannot produce “a driver’s license or other satisfactory evidence of identity for examination,” the driver must be taken into custody. The officer took McKay to the police station, where he was found to have a baggie of methamphetamine in his sock.

McKay argued that because bicyclists aren’t required to have a driver’s license, the identification law didn’t apply to him, and even if it did, he followed it by giving a truthful oral response to the police. (And if the custodial arrest was illegal, the drug evidence became inadmissible, hence the big constitutional issue.)

The court rejected both of McKay’s arguments, stating that anyone cited for a moving violation must provide either a driver’s license or

“other forms of documentary evidence that are the functional equivalent of a driver’s license. This would include a state-issued identification card or other current, reliable documentary evidence of identity that like a driver’s license, bears the person’s photograph, physical description, current mailing address, and signature, and is serially or otherwise numbered. . . the driver’s license or identification must be given to the officer rather than merely exhibited. The driver’s license or identification must be examined to assure validity and the presence of license restrictions [listed on the back].”

Frankly, I find the implications of this case for bicyclists very scary, as I see it being used by police to break up club rides, protest rides and as a general harassment tool against cyclists. I hope that further case law will restrict the broad sweep of the decision.

On a practical level, if you prefer to ride without your driver’s license, you should consider some form of identification as it could become necessary for any number of reasons-especially medical emergencies and the ability to contact your family members.There are more than a few examples of injured cyclists who survived for several hours before succumbing to their injuries. No friends or family could be contacted because the cyclist was not carrying identification.Good luck
– Bob(research and drafting assistance provided by Bruce Epperson-law student-Nova Southeast university)


Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Dear Mr. Mionske,Has anyone ever legally defined just what it means to "stop" at a stopsign when on a bicycle? Do you have to stop pedaling, stop rolling, stopand get out of your saddle, put one foot on the ground, count to ten andsay a hail mary before proceeding, what? I had a vehement argument withan officer for citing me the other day because he said I "ran thru traffic",meaning, from what I could understand, that he felt I was suppose to yieldlonger before crossing the street in the face of a car approaching frommy left who did not have a stop sign. He implied that I should have let the

Gimme a brake!

By Bob Mionske

Dear Mr. Mionske,
Has anyone ever legally defined just what it means to “stop” at a stopsign when on a bicycle? Do you have to stop pedaling, stop rolling, stopand get out of your saddle, put one foot on the ground, count to ten andsay a hail mary before proceeding, what? I had a vehement argument withan officer for citing me the other day because he said I “ran thru traffic”,meaning, from what I could understand, that he felt I was suppose to yieldlonger before crossing the street in the face of a car approaching frommy left who did not have a stop sign.

He implied that I should have let the car go by before I crossed atall, and I told him it was within my rights to make that judgment as towhen it was safe for me to cross, as long as I “stopped” and evaluatedthe situation first. Whaddya think, should I fight on? — T.M.

Dear T.M.,
This one is a close call. For roadway vehicles, “stopping” at a trafficcontrol device is comprised of two components:
1) Coming to halt; and
2) Looking for, and yielding to, vehicles with a superior right-of-way.

A Minnesota judge in a 1951 case, Bohnen v. Gorr, where a cyclistand motor vehicle collided after both ran through stop signs, put it thisway:

One of the main purposes of the statute requiring a vehicleto stop before entering a through highway is to afford the driver a reasonableopportunity to observe approaching traffic on the highway to be crossedor entered . . . It was not enough to stop at the ‘Stop’ sign. It was theirduty to stop and to observe where stopping and observing would be efficientand meet the purpose of the ‘Stop’ warning.
Thus, merely meeting the technical formality of stopping is legally inadequate.The stop must be sufficient to allow the cyclist to appraise the right-of-wayconditions and make a safe judgment. This argument cuts both ways, however.Even a track-stand less than a second long is adequate if gives the cyclistenough opportunity to observe and make a decision. If you want to fightan unfair “stop means dismount” argument, this is the logic to use: I didstop, and the stop was of sufficient duration under the circumstances thatany reasonable cyclist of my level of experience could safety and courteouslyobserve and appraise the need to yield or proceed.

As your question suggests, many municipal officials believe that to“stop,” a cyclist is required to put at least one foot on the ground. Ihave tracked model traffic codes back to their origin in the 1950’s andcan find no such provision. However, it is possible that this belief cameout a judge’s decision in the 1897 case, Robertson v. Pennsylvania Railway.Judge Sellers relates poor Robertson’s story:

The facts in regard to the decedent’s negligence are notdisputed. He was riding a bicycle, and when he came to the railroad, whichat that point had four tracks, a freight train was passing, for which hehad to wait. He did not dismount, but made what is called a ‘bicycler’sstop,’ by circling on his wheel round and round. When the freight trainpassed, he started across, without dismounting, and was struck by the traincoming in the opposite direction.
Robertson’s family sued the railroad, who claimed the cyclist was to blamefor his own death. The family countered that Robertson had followed thespirit of the law:
The real contention of the [family] is embodied in the propositionthat the circling ‘round and ‘round constituted a legal as well as a bicycler’sstop . . . The law requires a full stop, not only for the sake of time,and opportunity for observation, but to secure undivided attention, andthe substantial, and not merely perfunctory, performance of the duty tolook and listen. Riding ‘round and ‘round in circles, large or small, isnot a stop at all, either in form or substance.
By the time a remarkably similar case was tried in New York twenty yearslater, in 1916 (Cullen v. New York, Pennsylvania and New Haven R.R.),the “Robertson Rule” had become standardized:
It was the duty of the deceased [cyclist] to stop thereand to dismount in order to make a stop effective for the purpose of lookingand listening. The general rule requires that a bicyclist must dismount,or, at least bring his wheel to such a stop as will enable him to lookup and down the tracks and listen in the manner required of a pedestrian.
These cases are of historical interest only, because such judge-made “commonlaw” rulings are ineffective once replaced with formal legislative laws,and every state has more or less completely enacted the model traffic code,which is silent on definition of “stopping” as applied specifically tocyclists.

There is one exception, however. Idaho Statute 49-720 allows cycliststo make a “rolling stop” at stop signs, and also at red lights when thecyclist is turning right. The cyclist is still expected to yield the right-of-wayto crossing cars. First enacted in 1988, no case regarding the statutehas advanced to the appeals court level, so it appears to be (at leastlegally) uncontroversial.

Believe it or not, motorists have actually argued that they have noduty to stop for cyclists at stop signs. In a 2001 New York case, Peoplev. Marr, a motorist, Marr, struck cyclist Bunke at an intersectionin which Marr had a stop sign and Bunke didn’t.

The defense then made a motion to dismiss, not by disputingthat Marr failed to yield to Bunke, but on the basis that state law didnot require Marr to yield to Bunke because Bunke was not operating a vehicleas that term is defined in the traffic code. It is not disputed that Bunkewas operating a bicycle, which is a device operated by human power, andis therefore not a vehicle as defined in the traffic code.
However, in New York, as in almost every state, bicyclists have all therights and duties of motor vehicles. The court reasoned that hadthe tables been turned, Bunke would have been required to yield to Marr,and that motorists cannot expect to have their cake and eat it, too. Thus,the motorist owed the same duty to the bicyclist. The appeals court, notingthat there was no previous case law on the subject, congratulated the trialcourt for its use of  “the interpretive tools of practical contextand realistic application, and not the least common sense. These were appliedduring the course of the trial and there is no reason to change the decision.”

In a Washington State Supreme court case that should interest our trailriding friends (Pudmaroff v. Allen), a motorist used exactly theopposite logic to argue that she had no duty to stop for a cyclistat a crosswalk where an off-road trail crossed a road. The trail had astop sign at the crossing that the cyclist, Pudmaroff, obeyed. The roadwayhad a “yield to crosswalk” sign, and a car in the lane nearest Pudmaroffstopped to let him cross. Another driver, Allen, coming from the oppositedirection, did not stop and hit him. Allen argued that because Pudmaroffwas operating a vehicle controlled by a stop sign, he was required to waitfor all motor vehicles to pass before crossing. The court rolled its eyesat the suggestion:

A hypothetical suggests the problem. A group of users ofthe Interurban Trail approach the crossing, some on foot, others on skateboards,roller blades and bicycles, and wait for a clear opportunity to cross.Like Pudmaroff, they proceed only after traffic has stopped for them andthey have properly checked for oncoming traffic. If such a group were hitin the crosswalk, under [the motorist’s] interpretation, the vehicle wouldbe liable to all except those on bicycles. Such interpretation and resultmakes no sense . . . There is no evidence of Pudmaroff’s negligence. Thedismissal of the appeal was appropriate.
See? Once in a while, the law does make sense.

Good luck- Bob(research and drafting assistance provided by Bruce Epperson-law student at Nova Southeast University)



Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

Legally Speaking – with Bob Mionske

Hey Bob,Can I get in any legal trouble, or am I breaking any laws, by motor-pacingmy friend behind my Subaru? --PatHillsboro, Oregon Dear Pat;As you will read, I do not recommend that you motor pace your friend,but if you do, I offer the legal ramifications as well as some basic advice.This is the classic “do as I say not as I do” lecture. In fact, when Iwas racing and training, I was not even smart enough to limit my motorpacing to willing and complicit drivers. I was riding a borrowed cyclo-cross bike with limited gearing and wasspun out going downhill with my head down, when the woman I

Close encounters of the drafting kind

By Bob Mionske

Hey Bob,
Can I get in any legal trouble, or am I breaking any laws, by motor-pacingmy friend behind my Subaru? —
Pat
Hillsboro, Oregon

Dear Pat;
As you will read, I do not recommend that you motor pace your friend,but if you do, I offer the legal ramifications as well as some basic advice.This is the classic “do as I say not as I do” lecture. In fact, when Iwas racing and training, I was not even smart enough to limit my motorpacing to willing and complicit drivers.

I was riding a borrowed cyclo-cross bike with limited gearing and wasspun out going downhill with my head down, when the woman I was draftinghit her brakes for no reason (or maybe she did have a reason!).We had made eye contact through her rear view mirror and I remember thinkingthat she had a strange resemblance to the woman in the movie “Misery.”

Anyway, this was a two lane one-way street and after I ran into herbumper, I flew upside down between the lanes for a long time before I landedon my back still strapped in. The driver didn’t stop and, for a while,neither did the other traffic, which continued to pass me on both sides.An ambulance was called, as well as the police, and I was on my way toconvincing the officer with my lame explanation about how I was lawfullyriding in traffic and “changing lanes” when this driver “unexpectedly braked,”when an off-duty police officer I had passed earlier, presented his version(apparently, he was traveling too slowly for me and I had passed betweenhim and other vehicles before settling in behind the Kathy Bates look-alike).I was ticketed for following too closely.

One of the only times I organized a motor pace session was almost equallydisastrous. The fellow I had enlisted to pace me, simply followed behindme. I kept waving for him to pass me and he took my waiving as a commandto get even closer to my rear wheel and rev his engine louder. I finallystopped and asked him what he was doing. It turned out that his idea ofmotor pacing was different from mine. I decided to do an easy ride by myselfand laughed out loud every few miles ruminating upon the thoughts of this“motor-pace session”.

Now to the answer. You know how everyone says, “we’d do it, but thelawyers won’t let us?” Well, in this instance, there is a lot a truth tothat old saw. Not only can both you and your friend get into trouble, youwill amazed at all the different ways you can get into hot water.

Your home state, Oregon, is a good example, because its traffic lawsare fairly standard and therefore, my answer should apply to most states.

Let’s start with the obvious. The Oregon Traffic Code makes bicyclistsriding upon a public way subject to the provisions of the traffic code,and extends to them the rights and duties of motor vehicle operators.Section 811.485 makes it a Class B traffic offense to

“follow another vehicle more closely than is reasonableand prudent.” 
So right off the bat, we can ticket your friend for following too closely.

Next, section 811.140 of the traffic code makes reckless drivinga Class A misdemeanor. Note that this is no longer just a trafficoffense, it’s a misdemeanor. That means, although highly unlikely, onecould face up to a year in jail for this one. By “reckless” the statutemeans:
 

“A person is aware of and consciously disregards a substantialand unjustifiable risk that the result will occur or that the circumstanceexists. The risk must be of such nature and degree that disregard thereofconstitutes a gross deviation from the standard of care that a reasonableperson would observe in a situation.”

This might be particularly attractive to a law enforcement officer becauseboth you and your friend could get busted for the same act. Of course,you could get lucky and merely draw a ticket for careless driving. That’sa Class B traffic offense, unless he crashes, in which case you could bothpull a Class A traffic offense. That’s a suspended license and $600. (Whetheryou can get your driver’s license suspended for violating a traffic lawwhile riding your bike is a fascinating question that we’ll save for anotherday.)

If your friend crashed and the officer just wanted to ruin your day,he could cite you for vehicular assault of a bicyclist. Sound like a stretch?Section 811.060(2)(a) includes within the definition of that offense: 

“A person [who] recklessly operates a vehicle in a mannerthat results in contact between the person’s vehicle and a bicycle operatedby a person or a person operating a bicycle.”
Because “recklessly” is defined the same way as in reckless driving, ifthe cyclist you are motorpacing bumps into the back of your car and crashes,you could be cited for a Class A misdemeanor and, again, face a possibleyear in jail, even though you never intended to harm him.

Of course, this is all worse case scenario stuff and in all the yearsmy teammates and I motor paced, I don’t remember any problems with thepolice (if readers have been pulled over and ticketed or want to sharetheir motor pacing experiences with the law, please e-mail me).

 If you are stopped by a police officer for motor pacing, I recommendcalmly discussing the competitive reasons for motor pacing and your vastexperience in doing so, all the time using a voice of contrition. Theofficer may let you continue with a caveat “to be careful” or command youto cease pacing altogether, both of which are better than being ticketed.

A related subject involves insurance coverage for injuries sustainedwhile motor pacing. Most automobile insurance policies exclude coverageif the car is used in a “race or other contest of speed.” I have foundno published cases in which a bicyclist motor pacing a car crashed, butin a 1966 Alabama case, Alabama Farm Bureau Insurance v. Goodman, two friends,one on a bicyclist and the other in a car, raced each other down the block.The bicyclist was drafting the car when they collided, injuring the cyclist.Because the “speed of their respective vehicles was of the essence,” intheir contest, the judge determined that they were involved in a “competitivespeed test,” and that the motorist’s insurance carrier did not have topay the bicyclist’s claim.
 
Let’s assume that your friend, rather than looking to your automobileinsurance carrier, tries to get his medical insurance or homeowner’s insurancepolicy to pay. In the 1992 Minnesota case of State Farm Insurance v.Seefeld, the court concluded that where an accident results from acombined motor vehicle and non-motor vehicle incident, a homeowners orindividual medical insurance carrier can be forced to cover the expensesof their customer. However, most homeowners and medical insurance carrierscontain what is called an “extraordinary risk” exception. If the customerengages in an unusual activity that is extraordinarily dangerous and getshurt, the insurance company is off the hook. While typical bicycle ridinghas frequently been held to NOT be an “extraordinarily dangerousactivity,” motorpacing a foot behind a car at 30 mph is going to be problematic.
 
While my personal experience and belief lead me to conclude that motorpacing has proven value for serious cyclists, I do not recommend usingthis form of training, as it is dangerous and clearly illegal. If you aregoing to motor pace, I suggest using a motorcycle, as it is easier to avoidcollisions, it simulates race conditions better than an auto and is lesslikely that you will get pulled over by the police. If you are going tomotor pace behind an automobile only use someone who has hours of experiencedriving with a cyclist on his/her bumper, make sure you can see throughthe windows of the vehicle (don’t look at the bumper) and only motor paceon lightly traveled roads. Before drafting behind either a motorcycle orautomobile make sure you and the driver have gone over all commands andcontingencies including how to handle sudden stops, intersections, potholes,police, variations of speed etcetera.

And, above all, let’s be careful out there.
Good luck-Bob

(research [and drafting assistance] provided by Bruce Epperson- lawstudent at Nova Southeast University) 



Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road 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 info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle 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 public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.