E-Bikes — How to Stay Safe While Having Fun

Written By: Christopher B. Dolan and Taylor French

At a time when many of us are still stuck at home, socially distanced and trying to stay healthy, we might pick up a new hobby, like hiking, jogging or cycling that allows for escape. While the thought of being outside in the fresh air is certainly appealing, not everyone shares the same desire or ability to endure the physical challenges that come with these types of activities. For those individuals, a new activity has become quite popular: e-biking.  

 E-bikes, or electric bikes, are road or mountain bikes that come equipped with a battery-powered motor and fully operational pedals. There are three basic categories of e-bikes:

Class 1

  • e-bikes are low-speed, pedal-assisted e-bikes, meaning the rider must pedal in order to use the motor. When the rider begins to pedal, the motor kicks in to make the cycling easier. The motor on a Class 1 e-bike provides assistance up to a maximum speed of 20 mph, or miles per hour. 

Class 2

  • e-bikes also have fully functioning pedals, however they come with a motor controlled by a throttle, which allows the e-bike to be powered without pedaling. Class 2 e-bikes likewise provide motor assistance up to 20 mph. 

Class 3

  • e-bikes are also pedal-assisted e-bikes, similar to Class 1, but they can reach a maximum of 28 mph. Given the increased maximum speed, Class 3 e-bikes come equipped with a speedometer and require the use of a properly fitted and fastened helmet. Individuals under the age of 16 are allowed to operate Class 1 and Class 2 but not Class 3 e-bikes. 

 An e-bike rider does not need a driver’s license, registration or a license plate but must abide by all existing traffic laws. Unless prohibited by a local ordinance or regulation, Class 1 and Class 2 e-bikes can be used on any paved surface where a regular bike is allowed to operate. However, Class 3 e-bikes are prohibited on bicycle paths and trails, in bicycle lanes, on equestrian trails and on hiking/recreational trails unless specifically allowed by local authorities.  

An e-bike motor offers a user the opportunity to experience the thrill of high-speed cycling without the accompanying physical exhaustion, but it is important for users to understand and appreciate the dangers that present themselves when inexperienced riders become too confident, too quickly. A 2019 study, conducted by researchers at New York University’s School of Medicine and published in the journal Injury Prevention, analyzed a national database of emergency room visits, seeking information about accidents involving standard bicycles, motorized scooters, and e-bikes from 2000 to 2017. The alarming revelation from the study was that e-bike injuries were generally the most severe and likely to require hospitalization compared to standard bicycles and motorized scooters. 

Charles DiMaggio, Ph.D., an injury epidemiologist who led this study, presumes that speed likely played a role in the more severe injuries related to e-bikes. E-bikes allow operators to reach significantly higher speeds than most individuals would ever reach on a traditional bicycle. Since riders have likely never traveled as fast as they would on an e-bike, they are likely not prepared for potential dangers associated with such high speeds, which can include the need to brake suddenly for cars, pedestrians or other cyclists. According to Dr. DiMaggio, “We know that increased speed often results in more-severe injuries.”

So what can riders do to stay safe on e-bikes? Of course, e-bikers should obey all applicable traffic laws which are designed to keep those on the road safe. E-bikers should always be vigilant of their surroundings, including weather conditions, road conditions, pedestrians, vehicles on the road and other cyclists. Riders should maintain a safe speed, which means not always reaching the maximum speed allowed by the particular e-bike being used. E-bikers should err on the side of caution and wear helmets, even though that might not be required. They should consider wearing brightly colored clothing, which makes them more visible to others on the road. Riders should use a bell when passing other cyclists or pedestrians to ensure that their presence is known.

Riders should familiarize themselves with their e-bikes before jumping onto the road with full confidence. Users should take their time, perhaps practicing in an empty parking lot before venturing onto a busy road at a high speed. Riders should become familiar with the different pedal-assist settings that many e-bikes have. E-bikes can accelerate rapidly, which can be dangerous for riders not used to sudden momentum changes. Using a lower pedal-assist setting could help users adjust to the e-bike’s increased acceleration. E-bikers should practice braking from high and low speeds, which may also be a new experience for those accustomed to traditional bicycles. And finally, if riders plan to ride where others are present, they should wear a face mask to protect both themselves and those around them. 

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Cyclist Deaths Remain High During COVID-19

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Wendy L. in Hayes Valley who asks: I am an avid bicyclist and enjoy taking leisurely rides through the City. Since San Francisco has enforced lockdowns due to COVID-19, traffic has decreased and downtown areas feel like ghost towns. However, I read news reports stating that despite the decrease in traffic, the number of cyclists’ deaths remains alarmingly high. I would have expected the number of cyclists’ deaths to decrease as fewer cars are on the roadways. If this is true, what are some of the reasons that bicyclists continue to die at high rates?

Dear Wendy: Thank you for your question. You are correct. Although traffic has significantly decreased since the stay-at-home orders were issued, bicyclists’ deaths remain alarmingly high. According to data from the National Highway Traffic Safety Administration (NHTSA), 2018 was the deadliest year for bicyclists since 1990, with 857 bicyclists’ deaths. In 2019, there was a slight improvement, but the number of fatalities remained at a high 846 bicyclists’ deaths. Due to the disturbingly large number of bicyclists’ deaths in 2020, the magazine Outside committed to tracking every bicyclist death caused by a vehicle collision.

Outside partnered with the nonprofit BikeMaps.org (“BikeMaps”), founded by Trisalyn Nelson, a professor in geographic information science at the University of California, Santa Barbara. BikeMaps has been collecting crowdsourced information about cyclist involved vehicle collisions and traffic hazards such as potholes and road construction in the United States since 2014. Outside and BikeMaps found that in 2020, there were 697 bicyclists who were killed in car crashes. Although this is a decrease from 2018 and 2019, the number of deaths is concerning because it remained incredibly high despite the COVID-19 lockdowns.

According to Outside and BikeMaps, factors contributing to the high rate of bicyclists’ deaths include poorly designed roads, high speed limits, and distracted drivers. For example, they found that the most dangerous road for a cyclist is what Outside and BikeMaps define as an “Arterial Road.” An Arterial road is a busy, multilane street, with traffic signals at intersections and speed limits exceeding 30 miles per hour. Arterial roads account for 65% of the fatal crashes per the data collected and analyzed by Outside and BikeMaps. BikeMaps also noted that cars making unprotected left turns (those with no dedicated left-turn light) are especially dangerous to cyclists and pedestrians because the driver is concerned with oncoming traffic and is not looking out for cyclists or pedestrians.

Another reason for the high number of bicyclists’ deaths in 2020 is that there has been a surge in bicycle sales, which translates to more cyclists on the road. Due to the pandemic, a significant number of people have turned to riding bicycles in order to avoid public transportation and to exercise safely. The NPD Group, Inc., one of the largest market research companies that monitors consumer purchase data, reported that in April of 2020, the cycling industry reported a growth in sales of 75%, generating an unprecedented $1 billion for the month. This surge continued throughout the year. NPD reported that from January through November of 2020, $4.9 billion worth of bikes were sold in the United States. Strava, a popular activity tracking application used by cyclists, reported a 179% increase in membership, further affirming the increasing number of people riding bikes. So, even though there is less traffic, the high number of deaths is impacted by the fact that there are more cyclists on the road.

 Based on the data collected by Outside and BikeMaps, fewer cars on the roads does not mean fewer bicycle collisions. For that reason, we encourage all bicycle riders to wear helmets and continue to exercise and bicycle safety.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills, and lost wages; non-economic damages are commonly known as 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.

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Safety Measures for Cyclists and Truck Drivers

Written By: Christopher B. Dolan and Emile A. Davis 

This week’s question comes from William B. in Berkeley who asks: On the news I heard about a truck that collided with a group of cyclists. It was horrendous. Some cyclists were terribly injured and one even died. I realize, as a cyclist, how vulnerable we cyclists are, even when we are being cautious and aware. What protections do we have if a truck takes us out? Anything?

Dear William: Thank you for this important question about trucks, cycle safety and protections. As a cyclist myself, and having represented hundreds of cyclists, I am all too aware of the dangers caused by automobiles in general and the particular issues raised by large trucks. To answer your question, I look to three categories of protection:

1) steps that can be taken, as a cyclist, to avoid accidents with trucks;

2) rules truck drivers must follow to ensure they are alert and aware; and, finally, if the first two fail,

3) remedies and inquiries to seek justice after a collision.

Steps that Cyclists Can Take to Avoid Accidents

The sad truth is that many motorists simply do not see cyclists. It is not merely inattention, but a neurologic phenomenon sometimes called, “filling in.”  People’s brains are continuously anticipating what we will see. If an object is obstructed, the brain simply, “fills in,” the missing information with its best guess. There are several steps a cyclist can take to make sure they are actually seen. The easiest is to use anti-camouflage; wear bright colors and reflective gear, have lights and reflectors on a bicycle in order to stand out from the environment and draw attention to yourself. That way the cyclist is seen and the driver does not just, “fill in,” the scenery. 

You hit upon perhaps the most important other steps that can be taken – actively being cautious and using situational awareness to know when danger is increasing. These are key to a cyclist’s safety in relation to not only trucks, but traffic in general as well as roadway defects.

Department of Transportation Rules to Keep Truck Drivers Safe and Alert

Often, thankfully, long haul truck drivers are some of the best and most experienced drivers on the road. Additionally truck drivers are subject to many specific rules and regulations designed to make sure they are alert and driving safely. The Federal Department of Transportation, through the FMCSA (Federal Motor Carrier Safety Administration) has regulatory authority over truck drivers. They have a number of safety-based regulations affecting property-carrying vehicles. Initially, the driver must be at least 21 years of age, possess a commercial license and complete a road test. Any driver who has been convicted of a DUI or transporting drugs would be disqualified from employment in this field.

Once a driver is hired, they must record and certify in a log their driving start and end times as well as days off to demonstrate that they have followed basic safety requirements such as:  

  1. A driver must have had 10 hours off duty before beginning a shift.
  2. A driver may not drive after a period of 14 consecutive hours until he has had 10 hours off duty.
  3. A driver may drive for a total of 11 hours out of this period of 14 consecutive hours.
  4. A driver may not be on duty for a period of more than 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

The requirements are even more stringent if the driver is transporting passengers. A complete list of DOT regulations can be found at: https://www.fmcsa.dot.gov/regulations/title49/b/5/3

Recovery if a Collision Does Occur

Unfortunately the above precautions are not always enough and a cyclist is injured by a truck. When that occurs the law provides that a responsible party pay for the damages suffered by the person injured.  The law anticipates that trucks have the potential to cause greater harm than typical automobiles. Insurance coverage for trucks, unlike the relatively small insurance policies required by automobiles, are more substantial. Large commercial trucks transporting goods are required to carry a minimum of $750,000 in available insurance. Companies are often also encouraged to carry additional Commercial General Liability insurance to protect their assets, and individuals injured because of the potential trucks have for creating very serious injury, such as the collision that prompted you to write.

To obtain justice for a person injured by a truck a good lawyer will confirm all available insurance policies. They will also investigate to determine if the DOT safety regulations were properly followed.  Where there was a failure, it is important to determine if it was merely a failure of the truck driver to do the right thing, or, whether the employer of the driver set expectations or policies that required a driver to push the limits of the regulations and to drive unsafely. Similarly, a company that employs truck drivers may not properly screen or train drivers appropriately for the type of driving they are tasked to do. Employer failures of this type can open the employer up to the potential liability to compensate an injured person beyond the limits of an insurance policy.

As with many activities, if everyone does their part to avoid accidents, they become far less likely. However, they do still occur. If you or someone you know is injured by a truck driver, while cycling or otherwise, consult an attorney such as those at the Dolan Law Firm who are experienced in that area of law.

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Bicycle Accidents on Crosswalks

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Heather M. in Pacific Heights who asks: “I was riding my bicycle down Oak Street, approaching Franklin Street when I realized my backpack was not closed properly, so I pulled over onto the sidewalk to adjust my backpack. As I jumped back on my bike, I noticed that the pedestrian walking signal was on, so I began riding through the intersection within the marked crosswalk. Suddenly a vehicle came racing down the street and struck me. I was thrown off my bike and fell to the ground. I was transported by ambulance to the hospital. At the hospital, the attending doctor told me that I had broken my left ankle and it would require surgery. The driver is adamant that the collision is my fault because I should not have been riding my bicycle within the crosswalk. But he was driving so fast that even if I would have walked my bike across the street, he would have still struck me because he wouldn’t have had enough time to stop. I realize that maybe I shouldn’t have been riding my bike on the crosswalk, however, is there anything I can do to recover for my medical bills, lost wages and pain and suffering?”

Dear Heather,
I am sorry to hear about your accident. The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment and inconvenience. However, there are a few hurdles you will need to overcome in order to obtain compensation. Additionally, the compensation may be reduced by what is called, “Comparative Fault,” which will be discussed in more detail below.

As a general rule, adult bicyclists have the same duties and responsibilities as motor vehicle drivers under California Vehicle Code (CVC) section 21200. Therefore, under CVC 21200, it is unlawful to ride a bicycle within a crosswalk. In order to comply with California law and for your own safety, bicyclists should dismount their bicycle and walk it across the street within the marked crosswalk.

Many times, the police report will place the bicyclists at fault because they were riding within the marked crosswalk, which makes it more difficult for individuals to pursue a claim. It is not surprising that the driver of the vehicle is refusing to accept any liability as many insurance companies will rely on the police report and CVC section 21200 to place 100% of the fault on the bicyclist. However, if a serious bicycle accident occurs within a crosswalk, that does not automatically mean that you are precluded from recovering compensation for your injuries.

Based on the limited information you have provided, it appears that at the time you were riding within the crosswalk pedestrians had the right of way. This means that the driver of the vehicle had the responsibility to yield-to-pedestrians. Therefore, had the driver of the vehicle been driving as a reasonable and prudent driver, instead of speeding down the street, he would have had sufficient time to stop. Thus, as a result of his negligence, you suffered personal injuries.

An issue that is likely to be raised is, “Comparative Fault,” also referred to as, “Comparative Negligence.” Comparative Fault is the percentage of fault, if any, that will be assigned to the injured party. Under California law, if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. This percentage is generally assigned by the driver’s insurance adjuster if the case is settled pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of cases involving Comparative Fault, it is important that you contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries. 

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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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