Published: June 21, 2011
Author: Timothy Barber
This article first appeared in the The Verdict's Spring 2011, Volume 34:1 issue. The Verdict is published by the Wisconsin Association for Justice.
Spring is sprung; the grass is ris; look at all the bicycles! As Wisconsinites shake off the remaining effects of cabin fever, the cycling season has begun with more and more bicycles appearing on the roadways and pathways each day. Sunny days and higher temperatures mean more opportunities to get out and enjoy epic rides, but they also bring with them a greater risk of bicycle accidents. While at first blush, a bicycle accident case may seem indistinguishable from a run-of-the-mill auto accident case involving a pedestrian, bicycle accident cases pose unique challenges and traps for the unwary. This article will provide a brief overview of some issues you may encounter in litigating bicycle accident cases.
I. Bicycles Are “Vehicles”
Bicycles come in a variety of shapes and sizes — road bikes, cyclocross bikes, commuters, townies, recumbents, track bicycles, and mountain bikes, to name a few — and they are operated by people with a wide variety of cycling experience and backgrounds. Regardless of the type of bicycle or rider, all bicyclists are subject to the same rules of the road. While many people think of bicycles as toys or a means of recreation, under Wisconsin law, bicycles are defined as “vehicles.”
Under the “Rules of the Road” found in Chapter 346 of the Wisconsin Statutes, bicycles are, with certain exceptions, subject to the same rules as motor vehicles and enjoy the same rights to use the roadways as do automobiles. Special rules governing the operation of bicycles are found in Wis. Stat. § 346.77-82.
Generally, bicyclists are required to “ride as close as practicable to the right-hand edge or curb of the unobstructed traveled roadway,” except when passing other vehicles, preparing for a left-hand turn, or when “reasonably necessary to avoid unsafe conditions, including fixed or moving objects, parked or moving vehicles, pedestrians, animals, surface hazards or substandard width lanes that make it unsafe to ride along the right-hand edge or curb.”
Bicyclists are allowed by law to ride two abreast, so long as they do not obstruct traffic, but are required to keep within a single lane.When riding alongside parked vehicles, bicyclists must utilize “due care” but must keep three feet away from parked school buses.
Under Wisconsin’s new “anti-dooring law,” motorists must take “due precaution” when opening the door of a vehicle on the highway to avoid interfering the movement of traffic or any vehicle. Motorists are required to give bicyclists at least three feet of clearance when overtaking them and proceed with “due care.”
II. Insurance Issues
Insurance coverage for personal injuries sustained by a bicyclist should be available under the at-fault driver’s automobile liability policy. If the driver is uninsured or doesn’t carry enough insurance, a bicyclist may also be covered under the uninsured motorist (UM) or underinsured motorist (UIM) portion of his or her own automobile policy, as UM and UIM coverage is “personal and portable.” Other sources of potential coverage include the injured cyclist’s health insurance policy and any available med pay coverage under their automobile policy.
Many avid cyclists who are involved in accidents will be anxious to have their ride repaired or replaced. There are generally three sources of insurance coverage that will provide money to cover property damage to a bicycle. First, a cyclists’ bike usually will be covered by the general property damage limits in his or her homeowner’s policy, subject to the deductible. Most insurance policies will pay the cost to replace personal property while others may pay only the depreciated value of the bicycle.
Second, cyclists with very expensive and/or custom bicycles may have their bike listed on a scheduled personal property policy (the type used to insure expensive jewelry and other valuables) at an agreed-upon value. Importantly, scheduled personal property coverage is “worldwide” and should provide funds to replace a damaged bicycle regardless of whether it is damaged in an accident or while being transported.
Third, the cost to repair or replace a damaged bicycle may be recoverable under a tortfeasor’s property damage coverage in his or her automobile liability policy.
III. Liability Waivers
Each year, cyclists across the country compete in on and off-road races, participate in charity rides, and take part in formal and informal group rides organized by local cycling clubs. The organizers and sponsors of almost all of these events usually require riders to sign liability waivers. These agreements are generally contained on a rider registration form that must be signed before a rider is allowed to participate in an event.
Although they are not per se unenforceable, the Wisconsin Supreme Court has never seen a personal injury liability waiver it has found to be valid. Under the Court’s well-known decision in Atkins v. Swimwest Family Fitness Center, liability waivers are not enforceable unless, among other things, they demonstrate that both parties possessed an opportunity to bargain over its terms. In response to the Atkins decision, many race and event coordinators are now requiring participants to sign liability waivers that provide the registrant with the “choice” of signing the waiver or agreeing to one of two “alternatives”: 1) paying an exorbitant, often cost-prohibitive entry fee, or 2) agreeing to self insure for the event and provide the event organizers with proof of that insurance. Whether these new forms of waivers satisfy the Atkins “bargaining” requirement is unclear.
Decisions outside of Wisconsin are a mixed bag. Most courts have enforced liability waivers or refused to reject them outright as applied to organized professional and amateur racing events. On the other hand, some courts have ruled that liability waivers may be invalid in professional or amateur races if the event causing the injury was outside the category of foreseeable risks associated with the event — such as being struck by an automobile on a supposedly “closed course” road race. Finally, some courts have held that liability waivers are not enforceable when signed by participants in charity bicycling events.
IV. Recreational Immunity
Off-road biking (i.e. “mountain biking”) is becoming an increasingly popular form of cycling, and volunteer mountain bike organizations are building more trails every year. Trails range from groomed pea gravel paths to rough “singletrack” trails cut through woods and rocks with treacherous drops, log rides, and other obstacles. While off-road riding can be exhilarating, it is also fraught with danger and many bicyclists are injured on such trails. However, if a bicyclist is injured on a trail located on public land, the owner of the land (i.e., the governmental entity) and any biking organization that builds and/or maintains the trails will likely be immune from liability under Wisconsin’s Recreational Immunity Statute — even if the trails were negligently constructed and/or maintained.
The Recreational Immunity Statute provides that an owner of land and its employees and its agents do not have a duty to recreational users of the land to: “keep the property safe for recreational activities”; “inspect the property”; or “give warning of an unsafe condition, use or activity on the property.” An “owner” includes “a governmental body or nonprofit organization, that owns, leases or occupies property,” as well as “[a] governmental body or nonprofit organization that has a recreational agreement with another owner.” A “recreational agreement” is “a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specified part of the owner’s property for any recreational activity.”
While no case has directly applied the Recreational Immunity Statute to bicycle clubs, cases involving snowmobile clubs have held that such organizations are protected by the recreational immunity statute for injuries that occur on trails on government owned land if they possess a “recreational agreement” with the public entity that owns they land or if they regularly maintain the trails in question, such that they are an “occupier” of the land. On the other hand, a sporting club that uses land on a one-time basis for a specific event and thereafter “abandons” the land may not be protected by the Recreational Immunity Statute for alterations it made to the land or obstacles left on the course.
Most off-road bicycle groups are volunteer, non-profit organizations that have agreements or memoranda of understanding with local municipalities that allow them to enter onto the land, build trails (subject to approval), and maintain them. Most groups also conduct regular maintenance on the trails that they build several times a year. Therefore, it is unlikely that a bicyclist who is injured on an off-road trail on public land will be able to seek recourse against the organization that build or maintains the trail system.
V. Product Liability
Bicycle manufacturers are constantly innovating, and the last 10 years have seen significant advances in biking technology. These include developments in new frame materials such as carbon fiber and titanium, new frame designs and wheel sizes, hydraulic brakes, electronic shifting, dual suspension systems, among others. New technologies bring with them the risk of defective designs and injuries. At the other end of the spectrum, consumers who purchase entry-level bikes from some of the “big box” stores face the risk of catastrophic failures from improper bicycle assembly and products not designed for the purposes for which they are marketed.
The new “tort reform” legislation signed by Governor Walker made significant changes to product liability law in Wisconsin. As a result of the new law, bicycle retailers and wholesalers are generally immune from strict liability for selling defectively designed or manufactured bicycle or bicycles sold with inadequate warnings. Bicycle manufacturers are now protected by the heightened burden of proof and the new definition of “defect.” Moreover, plaintiffs pursuing product liability suits against bicycle manufactures will now have to contend with the new Daubert standard for presenting expert testimony.
Several recent federal cases involving challenges to expert testimony in bicycle product liability cases under the Daubert standard have refused to admit testimony by well-credentialed engineers and metallurgists when they were not industry “insiders,” lacked experience in bicycle frame or component design, and/or did not actually test the defective product. For instance, in Borel v. Trek Bicycle Corp., the court held that the plaintiff’s expert witness, a mechanical engineer with substantial knowledge in metallurgy, was not qualified to testify as to alternative bicycle frame designs because he had not tested the bicycle frame that failed and his theories on alternative design had not been tested, modeled, or peer-reviewed. Similarly, in Lynch v. Trek Bicycle Corp., the court granted Trek’s motion in limine to exclude the plaintiff’s expert from testifying as to what caused the carbon fork on the plaintiff’s road bike to fail. On appeal, the Second Circuit Court of Appeals upheld the district court’s ruling, reasoning that the witness’ experience working with carbon fiber material was limited to aircraft design, he failed to actually test the broken bicycle fork, and testified only as to how the failure “could have happened.”
On the other hand, proper scientific testing on bicycle components may be sufficient to qualify an expert to render an opinion about the cause of frame or component failure, even if the expert has no prior experience in the bicycling industry. Likewise, a cycling enthusiast may be qualified to testify as to “the history of cycling, cycling trends and habits, and cycling safety” if “he has extensive experience and expertise beyond that of an ordinary person.” Conversely, while scientific testing can qualify a witness to testify as to the performance characteristics of the component tested, without industry experience, a witness cannot provide an opinion as to the necessity of a warning relating to that component.
VI. Voir Dire
Finally, in any case involving a bicycle accident that goes to trial, determining the
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biases and prejudices of potential jurors is paramount. Even in cycling-friendly cities such as Madison, many cyclists are routinely harassed by motorists, and a quick scan of any of the online newspaper forums relating to bicycling articles will reveal strong personal feelings both for and against cyclists.
In a traffic accident case, the most important information that needs to be obtained from potential jurors is whether they believe bicycles have an equal right to use the roadways as do motorists. Many potential jurors may believe that bicyclists should not be allowed to ride on the roads at all or should not be allowed on the road if there is a nearby bike path. Many drivers support the idea of requiring cyclists to pay a “road tax” and register their bike in order to utilize the public roadways. Some non-cyclists consider bicyclists to be a danger to themselves and motorists and believe cyclists as a group do not follow the rules of the road. Prejudices may even extend to opinions formed based on the type of athletic clothing worn by bicyclists.
On the other hand, potential jurors who are bicycle enthusiasts may have strong opinions (and be less forgiving) about the manner in which inexperienced cyclists ride and utilize the roads. Some advocates may fault an inexperienced bicyclist for riding on the sidewalk or for failing to “take the lane” in moving traffic and riding too close to the curb.
Much of the hostility towards cyclists is based on the public’s lack of knowledge about the rules governing the operation of bicycles on the roadway, as well as driver frustration at having to slow down when coming upon a bicyclist. Thus, voir dire is an opportunity to begin stressing the point that cyclists have an equal right to use the roadway, have the same rights and responsibilities as automobiles, and that motorists are legally obligated to share the roads with bicyclists.
For more information about litigating bicycle accidents, contact Timothy Barber at 608.283.6740 or email@example.com.
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