CARS PASSING BIKES – CLOSE ENCOUNTERS & WRECKS
By Steven M. Magas, Esq.
About a year ago I was asked to contribute a chapter to a new book entitled Bicycle Accident Reconstruction and Litigation. The book has just been released and, while you won’t find it on the New York Times bestseller list, it does offer some fascinating insights into bike accident litigation from all over the country.
One of the most common bike accident scenarios involves motorists colliding with cyclists while overtaking them. It’s not difficult to understand why. My experience is that motorists perceive that lane lines are absolute and believe that they cannot cross them when passing cyclists. If they can squeeze between you and the lane line, they will do so no matter how close they come to you. Once they break the plane and cross the lane line they will usually allow sufficient room to pass. [I modestly call this the "Magas Phenomenon."] In Effective Cycling,” John Forester recommends riding in the center of narrow lanes and just to the right of cars in wide lanes in order to encourage the motorist leave the lane to pass you and to give you some room to dive if you need it!. Cars still manage to frequently collide with cyclists during the execution of the passing maneuver and in Bicycle Accident Reconstruction and Litigation there is a virtual catalog of dozens of reported cases on this issue.
An interesting case arose in Idaho in the 1960′s. A 14 year old boy was riding on a narrow gravel shoulder of a two lane 24 foot wide highway. A motorist came upon the boy at 55 mph. A disinterested witness said the boy appeared to be having problems controlling his bike on the gravel and said the motorist neither slowed nor steered left. As the motorist approached, the bike operator sweved left onto the roadway in front of the car and was killed. The point of impact was one to two feet onto the roadway. The court ruled that the cyclist was entitled to use the right edge of the roadway as a matter of law since Idaho law, like Ohio law, requires cyclists to ride as far to the right as is practicable. The court stated that a motorist may not assume that a bike operator travelling on the berm will stay on the berm since he has a legal right to ride on the roadway. Kelley v. Bruch (Id. 1966), 415 P.2d 693.
In a 1987 Ohio case a motorist argued that he lost the cyclist “in the sun” while passing The jury, for some unknown reason, found the cyclist to be 20% negligent when the motorist struck the cyclist. The court determined that the motorists argument was not a legal excuse to hit the cyclist and found that the jury made a mistake when assigning any blame for the accident to the cyclist. Howard v. McKitrick, Lexis Slip Opinion, Ohio App., July 2, 1987.
In Ohio, a passing motorist must sound a horn before passing and the motorist is negligent if he fails to do so. However, courts have also held that a horn blown in an untimely fashion which scares a cyclist and causes the cyclist to move unexpectedly or lose control is also negligence. In one case a cyclist heard a horn close by, turned to look and moved left into a passing car. The jury found the cyclist to be 95% responsible for the wreck, but the trial judge reversed the jury’s findings and found the motorist to be 75% responsible!
The bottom line…keep an eye in your mirror and watch out for those passing motorists. Take up your fair share of the roadway and make motorists get into the other lane to pass you. Drive defensively people….as a famous TV character used to say…”Let’s be careful out there….”