California law addresses safety for bicyclists

Written by: Christopher Dolan and Taylor French

Drivers and bicyclists must coexist in an environment that, at times, can feel too crowded for both.

California has enacted several laws throughout the years in an effort to ensure the safety of those sharing the roads, but none is more important than the Three Feet for Safety Act. In 2013, California’s legislature passed the act, codified as California Vehicle Code section 21760, requiring drivers to give bicyclists a minimum of three feet between the motor vehicle and bicycle when passing in the same direction on a highway. This law became operative on Sept. 16, 2014.

Prior to the act, the California Department of Motor Vehicles had already provided that maintaining three feet between cars and bicycles was the best practice, but the act gave law enforcement the ability to stop a motorist and issue an infraction for failing to keep this distance. An infraction issued for a violation of California Vehicle Code section 21760 results in a minimum fine of $35. If a collision occurs between a car and bicycle causing great bodily injury to the bicyclist, the driver of the car will be issued a $220 fine. In addition to these fines, however, the motorist will also likely incur court fees and/or other administrative fees, which could significantly increase the cost of a violation.

While the act is as straightforward as it sounds — a car may not pass a bicycle traveling in the same direction unless it provides, at a minimum, three feet between the car and the bicycle — there is another important caveat. Subsection D of California Vehicle Code section 21760 states:

(d) “If a driver is unable to pass with three feet of distance due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.”

The language of subsection D appears to give some discretion to officers stopping motorists for passing too closely and to drivers when deciding whether to pass a bicyclist. Ultimately, this language also gives judges discretion in issuing fines, should a driver contest the violation.

In addition to an infraction, a violation of California Vehicle Code section 21760 may carry additional ramifications that drivers may not anticipate. For example, if a driver hits and injures a bicyclist in violation of California Vehicle Code section 21760, the driver can be found to be, “negligent per se,” in a civil lawsuit.

Negligence per se is a legal doctrine establishing a presumption of negligence for a violation of a statute, ordinance or regulation. If a defendant in a civil lawsuit is found to have violated a statute, the violation caused the type of harm the statute was designed to protect, and the plaintiff is of the class of people the statute was designed to protect, then the defendant is considered negligent per se. In other words, as a matter of law and as applicable here, a defendant driver who violated California Vehicle Code section 21760 — thereby causing bodily injuries to a bicyclist — could be considered negligent and liable for those injuries and the resulting damages.

So, what can drivers do to ensure they are maintaining at least three feet from bicyclists and to avoid a violation of California Vehicle Code section 21760? Most importantly, if in doubt, drivers should assume they are too close to a bicyclist. Remember, the act provides the minimum distance from a bicyclist that a driver must maintain, but there are certainly situations where three feet is simply not enough space.

Drivers should consider the amount of time it takes to bring a car to a complete stop to avoid hitting a bicyclist. When passing, drivers should consider changing lanes rather than attempting to sneak past bicyclists. And remember, drivers can only pass a bicyclist when it is safe to do so, and risking a bicyclist’s life to save a few extra minutes during one’s commute is never a risk worth taking.

Finally, what can bicyclists do to ensure a safe distance around them? Bicyclists should always make sure they are visible and should never assume a driver will maintain a three-foot minimum distance.

While the act puts the burden on the driver to maintain the three-foot buffer, bicyclists should always make sure to monitor the distance and avoid careless, distracted or inexperienced drivers. Bicyclists can even wear a “Three Feet” bike jersey to remind drivers of the distance requirement. It just may save a life and get the bicyclist some compliments in the process!

 

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Getting ‘doored’ by a ride-hail driver

This week’s question comes from Nancy L. in Pacific Heights, who asks:

Q: “I was riding my bicycle down Market Street near 5th Street when the Uber driver in front of me came to an abrupt stop. I started to slow down and veered to the left side to ride past him, when suddenly the passenger flung the back left door open. It all happened so fast. I had no way of avoiding getting hit by the door. I fell off my bike and onto the ground. I remember feeling immediate pain in my right arm, but I managed to take a picture of the Uber driver’s license plate with my cellphone. Soon after the collision, an ambulance arrived and I was transported to the hospital. After taking x-rays, the doctor told me that I had fractured my arm and I would need surgery. The medical bills keep piling up and I had to miss several days of work. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

A: Nancy, the short answer is yes, you may seek compensation for both the economic and non-economic damages you suffered as a result of this collision. While this may not seem like a typical car accident, it has become increasingly common for cyclists to get “doored” by Uber and Lyft passengers.

It is great to hear that you took down the driver’s license plate. After a car accident, it is very important to obtain the other driver’s information which includes their full name, license plate, and car insurance information. It is also important to obtain a copy of the police report and to take pictures of your injuries and the property damage.

Under California Vehicle Code (CVC) section 22517, “No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.” Based on CVC section 22517, drivers and passengers have a responsibility to inspect their surroundings before opening the door to determine whether it is safe to do so. In your case, the Uber driver should have found a safe location to stop rather than abruptly stopping in the middle of a busy street. Furthermore, the Uber driver should have also warned his passenger to be careful when opening the door. While some of the liability may be placed on the passenger, the main focus in these cases is on Uber/Lyft and the driver because they bear responsibility for the decision to drop-off a passenger on a street with heavy traffic. We have also handled many cases where the Uber or Lyft driver decides to park in the bike lane forcing cyclists to go around the car, which increases the risk of getting doored or struck by oncoming traffic.

If you were injured in a car accident as a result of a driver or passenger “dooring” you, you have the right to seek compensation for your economic and non-economic damages. Economic damages include compensation for discrete items such as property damage, medical bills and lost wages; non-economic damages include things that are more difficult to quantify, like pain and suffering, physical impairment, and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

For everyone’s reference, the San Francisco Bicycle Coalition highly encourages drivers and passengers to use the “Dutch Reach” for opening doors: this entails using the hand farthest from the door, so that the body automatically swivels, positioning the head and shoulders towards the window, and thereby allowing them to see any oncoming bikes and cars prior to opening the door. This is an easy technique that can avoid injuries to cyclists. By taking these steps, you can help curb this unfortunate new trend.

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Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

 

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

 

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

 

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

 

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

 

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

 

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

 

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

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Pursuing damages in a San Francisco and Bay Area bicycle accident case

 

The city of San Francisco and surrounding Bay Area is a beautiful place to ride a bicycle. However, as enjoyable as the sport is, it also comes with its share of dangers. There a lot of hazards that can cause a bicycle crash, like: roadway hazards, potholes, reckless automobile drivers, reckless bus drivers, and problems with the bicycles themselves. When one of these factors causes a bicyclist to get into an accident, the injurious consequences can be life altering and deadly to say the least.

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Decoding Injury Liability

Today’s question comes from Jane in Portola Valley who asks, “We were bike riding in Marin and we were going to stop in Samuel P. Taylor Park to have a bite to eat and rest before continuing our ride to Point Reyes. I hit a bump in the road and was thrown from my bike. I landed on my head and suffered pretty bad cuts on my face and shoulder and broke my forearm. The bump was pretty big and wasn’t really visible to me as the sun was directly overhead. After I fell, the police came and the park ranger walked over and said that I wasn’t the only one to fall there. Do I have any legal recourse?”

 

Jane, your question is not an easy one to answer with so little information because so much of its legal success would depend on facts, such as whether your fall took place inside or outside of park boundaries, a fact which would determine both the relevant agency that might be responsible and the rule for evaluating its responsibility. Whether inside the park or on the highway, your injury occurred on public property and is therefore subject to the “dangerous condition of public property” doctrine, codified in the California Government Code. This doctrine addresses injuries that happen on public property including sidewalks, highways, roadways and the like, and limits the situations under which the government may be held liable for any dangerous conditions.

 

If you were already within the park’s boundaries, your case would depend on application of the Government Code Section 831.4. Under this rule, the government is not liable for injuries caused by the condition of an unpaved road that is not a city, county, state or federal street or highway and provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas. Likewise a government entity is immune for injury on any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as the public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety.

 

In your case, if you were within the park when you were injured, it can be argued that the trail immunity does apply. If that be the case, then a counter argument can be made that the entity had an obligation to provide warning of the condition, since the ranger was aware that others had fallen there before.

 

If you were not within the park, Government Code Section 835 applies. Liability depends on whether an injured party can prove four elements. First, the relevant property must have been in a dangerous condition at the time of the injury. In your case, since you came upon a bump preexisting on your path, this element appears to be satisfied.

 

The second and third elements overlap considerably: they both require that, in addition to proving that the dangerous condition actually caused the injury, the injured party must prove that the risk of that type of injury was reasonably foreseeable to the government before the injury occurred. In your case, the bump in the road in fact caused your fall, and it was also reasonably foreseeable to the government that a bump in the road might cause someone to fall. The very reason that a bump in the road is considered dangerous in the first place is largely due to the increased risk of road users falling!

 

Fourth, an injured party must show that either: (a) the dangerous condition was created by a government employee’s negligent act or omission; or (b) the relevant agency had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. This element would likely be at issue in your case.

 

Government Code section 835.2 defines what constitutes actual and constructive notice. Actual notice is when the entity in fact already knew of the existence of the condition and knew or should have known of its dangerous character. Constructive notice, by contrast, requires the injured party to establish that the condition had existed for such a period of time, and was of such an obvious nature, that the public entity, in the reasonable exercise of due care, should have discovered the condition and its dangerous character. This takes into consideration whether or not the entity had an inspection system which would have, or should have, identified the condition.

 

In your case, the park ranger admitted that he knew, or had actual notice of, the bump in the road because you were not the first victim of its dangerous character. The determinative questions, therefore, would be: (1) whose jurisdiction the bump was in and, if not the park’s, were they also aware of the prior accidents; (2) how long ago the other accidents had been and when the relevant agency was made aware of their cause; (3) the practical factors involved in making the road safe; and (4) whether the intervening time was sufficient to have taken measures to protect against the dangerous condition.

 

Finally, an injured party must also defend against the government’s possible counterarguments. For instance, they must prove that the condition was not merely a trivial defect, that it presents a substantial risk of harm. Courts may decide as a matter of law that a condition is trivial and, in many cases, have done so. For example, a court held that a ½ inch deviation in sidewalk panels trivial as a matter of law. However, the only guidance given to the jury in deciding whether a condition rises to the dangerous threshold is rather circular and cryptic: a substantial risk of harm is one which is more than trivial. Therefore, without additional information as the size, shape, height, etc., it is impossible for me to opine in your case whether the bump in the road would be considered trivial or not.

 

An injured party must also rebut a government defense that the defect was “open and obvious.“ If a dangerous condition is so significant that it would be open and obvious to a reasonably attentive user, then the government can claim that the user was negligent for not seeing and avoiding the condition. In your case, I would need more information to determine whether the “open and obvious” defense would have merit, such as the time of day when this occurred, weather conditions, shadows from trees, and other factors that would have impaired your ability to appreciate the hazard before you hit it.

 

We have handled hundreds of dangerous condition cases over the years involving bikes, cars, muni trains, sidewalks, escalators, stairs, highways, city streets and the like. Because of the intricacies of the statutes, these cases are quite complex and should only be handled by trial lawyers with significant experience in this area. I suggest that you get photos of the area, including ones showing dimensions with a ruler in place, as well as lighting conditions at the time of your fall, and present those to a trial lawyer who can analyze whether or not you have a case worth pursuing.

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Outrage Over Road Rage in Marin — Legal Consequences

On Saturday October 7, a beautiful Indian summer day in Marin, approximately 1,300 cyclists gathered to ride through the rolling hills of Marin to support the Marin Bike Coalition in its annual Jensie Gran Fondo.  As the day went on, what started as a fun-filled day turned to tragedy when the driver of a blue Dodge Ram pickup allegedly swerved to the right and struck 4 bicyclists knocking them to the ground and then sped off.  The hit and run collision is the worst injury in the event’s history.

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UC Berkeley Counsel killed In Bicycle Accident

Chief Counsel for UC Berkeley, CA, Victim of Fatal Bike Crash

Guerneville, Ca ( August 27th 2017) – Christopher Patti an avid cyclist from Berkeley, Ca, was struck and killed when the driver of a BMW lost control of his vehicle on CA 116 in Guerneville. According to witnesses the driver was taking a curve at too fast a speed and lost control, slid across two lanes hitting Mr. Patti and a guard rail.  The driver of the BMW then fled the scene and later abandoned the car near Rio Nido. The CHP later identified the driver of the BMW as 28 year old Jonathan Ritter.

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