REPRESENTING BICYCLE OPERATORS IN ACCIDENT CASES: A PRIMER FOR THE NON-CYCLING LAWYER

INTRODUCTION I. THE LAW OF BIKES IN OHIO A. IMPORTANT DEFINITIONS B. LAWS EFFECTING BICYCLE RIDING C. LAWS REGARDING BICYCLE EQUIPMENT II. INVESTIGATION OF A BICYCLE ACCIDENT CLAIM A. A CHECKLIST FOR THE INTERVIEW OF THE BICYCLIST/CLIENT - BICYCLE INFORMATION - CLIENT’S BICYCLING INFORMATION - BICYCLE ACCIDENT INFORMATION III. TYPICAL BICYCLE ACCIDENT CLAIMS A. AUTOMOBILE ACCIDENTS 1. OVERTAKING MOTORIST 2. LEFT TURNING MOTORIST 3. PHANTOM CAR CASES 4. NIGHTTIME ACCIDENTS B. DOG/BIKE ENCOUNTERS C. PRODUCT LIABILITY CLAIMS 1. QUICK RELEASE CASES 2. LIGHTS AND REFLECTORS 3. HELMETS 4. OTHER PRODUCTS LIABILITY CLAIMS IV. TRIAL ISSUES UNIQUE TO BIKE CASES V. BICYCLING RESOURCES – REPRESENTING BICYCLE OPERATORS IN ACCIDENT CASES: A PRIMER FOR THE NON-CYCLING LAWYERINTRODUCTION

Bicycling is one of the most popular recreational activities in the United States, indeed, in the world. There are over 90,000,000 cyclists in the U. S. and over 30,000,000 adult cyclists. In any given year we can expect 800 – 1000 cyclists to die on our roadways while some 500,000 will be treated for injuries. In fact, the first automobile accident in the United States occurred when a motor vehicle crashed into a pedalcycle rider in New York City in 1896!

Bicycling advocates have been fighting for their right to ride on the roadways for more than 100 years — The League of American Bicyclists was founded in 1880 and the Cincinnati Cycle Club, one of the nation’s oldest local cycling clubs, was founded shortly thereafter. Indeed, our nation’s first paved roads came about because bicyclists fought for better riding conditions.

Ohio is a hotbed of cycling activity. We have more “organized” nationally advertised rides than virtually all other states. Two of our local cycling clubs, Cincinnati and Dayton, are perennially among the top ten largest in the country. Unfortunately, we know that 20 – 30 Ohio cyclists will die each year and thousands will suffer injuries. Deaths of adult bicyclists are an increasing problem. In 1975, adult riders constituted 32% of all riders killed on the road, compared with 62% in 1994. These numbers would seem to indicate that the likelihood of an adult cyclist, or his or her heirs, seeking legal representation is higher today than in years past.

Unfortunately, most lawyers know little about, or have given little thought to, the care and feeding of a bicycle accident claim. The purpose of this brief article is to provide a broad framework to assist the non-cycling lawyer in handling bike cases. I will examine some of the issues that always seem to pop up in these cases as well as provide you with some ideas for dealing with common “bike case” problems. At the end is a list of resources ranging from books and magazines to cycling groups and governmental agencies to which the confused lawyer may turn when trying to tell a Quick Release Skewer from a Positive Retention Device!

I. THE LAW OF BIKES IN OHIO

A. IMPORTANT DEFINITIONS

Bicycles are clearly expected by the legislature to be used on Ohio’s roadways. In O.R.C. 4511.01(A), “bicycles” are included within the definition of “vehicles.” The inclusion of bicycles in this definition is critical to plaintiff’s counsel because it gives legislative and statutory support to one of the lawyer’s most difficult problems in bike cases — convincing the jury that the bike operator has the right to be on the road in the first place ["If you were on the sidewalk where you belong that car never would have crashed into you!"]. Bicyclists, statistically, lose more cases than they win and even lose more often than motorcyclists. I tend to believe that this is due, in part, to the motorcycle’s accepted place on the roadway whereas non-cyclists think that anyone stupid enough to ride a bike on the roadway deserves whatever he or she gets!

So, what is a “bicycle,” anyway? Under Ohio law, a bicycle is:

• “…every device…other than a tricycle designed solely for use as a play vehicle by a child, propelled solely by human power upon which any person may ride having either two tandem wheels or one wheel in front and two wheels in the rear, any of which is more than 14 inches in diameter.” O.R.C. §4511.01(G).

The purpose of the definition is to exclude those things which are clearly intended to be toys of young children. Anyone riding a two wheeled device which does not meet this definition is not required to follow traffic laws or other bike-specific laws discussed below, when operating the device on the roadways. This would include “Big Wheel” type devices, skateboards and inline skates.

B. LAWS EFFECTING BICYCLE RIDING

Cyclists are required to follow the usual “rules of the road” as found in O.R.C. § 4511.01 – 4511.99 and 4511.13 – 4511.37, when operating their bikes on Ohio’s “roadways” or whenever they ride on “…any path set aside for the exclusive use of bicycles.” Thus, bike operators may be ticketed for riding against traffic, speeding, running red lights, drunk driving or any other traffic infraction. Any traffic law that applies to “vehicle” operators applies to cyclists, while riding on the roadway. Any traffic law applicable only to “motor vehicles” doe NOT apply to cyclists.

The “hand signal law” in Ohio was amended in 1996 to, finally, permit cyclists to legally signal their intention to turn right by holding out their right arm parallel to the ground. Formerly, cyclists had to use the “bent left arm” approach used by motorists!

The fact that these statutes only apply when the bike is operated on the “roadway” can be of great importance as many bike accidents occur when the cyclist is riding on the “berm.” Arguably, the cyclist riding on the berm not required to follow ANY of the statutory traffic rules or the bike-specific traffic rules since these laws only apply to bicycles being operated on the “roadway.” In Masters v. Alexander (Pa. 1967), 225 A.2d 905, the Plaintiff successfully argued that a cyclist riding on the berm at night was not required to meet the statutory lighting requirements since those requirements only applied to cyclists riding on the “roadway.” The appellate court upheld a significant verdict for the plaintiff.

There is no statewide statutory restriction as to the roads on which cyclists may ride and they may ride on virtually any road, other than freeways, or sidewalk in Ohio. There are no statutory age restrictions for riding a bicycle or operating a bicycle on the roadways. There is no training required for bike operators, no “licensing” requirements, no statewide bike inspection requirements and, as of this writing, no statewide helmet law. Thus, anyone who can reach the pedals may ride any device fitting the legal description of a “bicycle” on virtually any road in Ohio.

The savvy lawyer will not stop at the Ohio Revised Code, however. Many cities, villages and burgs have passed their own brand of “bike laws.” Typically, these laws are passed as an angry reaction to a particular accident or ongoing conflict between local cyclists and motorists. These local laws may cover anything bicycle-related and may be quite extensive.

In Bay Village, Ohio, local law covered virtually every aspect of bicycling and required that any bike operated within its borders had to be “licensed.” The cyclist was required to exhibit the actual license obtained. The penalty for failing to do so was impoundment of the bike! Some local laws prohibit riding on certain roads, or at certain times, riding two abreast, or riding on the berm. Generally, so long as the local laws are more restrictive than the state law they have been upheld on appeal.

One virtually universal piece of statutory language that Ohio has adopted is found in O.R.C. §4511.56 which requires that:

• “…every person … operating a bicycle on a roadway shall ride as near to the right side of the roadway as practicable obeying all traffic rules applicable to vehicles and exercising due care when passing a standing vehicle or one proceeding in the same direction.” [Emphasis added.]

This vague code section is tossed in the face of the victim/cyclist in virtually every auto/bike collision case. There is very little Ohio case law on what this means. I have often successfully argued that “as near to the right side of the roadway as practicable” means “as near to the right as can be safely accomplished taking all factors effecting bicycle handling into account…,” or words to that effect. I argue that the legislature did not intend cyclists to hug the white line, riding through all of the gravel, broken glass and other debris that typically gets swept to the right side of the roadway. When the case warrants, I have used experts to discuss proper riding technique and safe riding tactics, including what constitutes a safe distance from the right side of the road.

Expert testimony along these lines may be helpful in a case where the motorist argues that the cyclist was not “as near to the right as practicable,” especially if the accident occurred on a narrow road and the cyclist was riding toward the middle of his lane — a practical and recommended procedure.

Where do you find such experts? Check out local bicycle clubs and find out who teaches bicyclling locally. John Forester, the author of Effective Cycling, has developed an extensive training course which certifies people as “Effective Cyclists.” The details of the course, and a list of “Effective Cyclists” nationwide are listed in the Bicycle USA’s Almanac, published annually by the League of American Bicyclists. [See Bicycling Resources at the end of this article.]

One apparent conflict in Ohio law is the duel between the fact that cyclists are permitted to ride “…no more than two abreast…” but are also required to ride as near to the right side as practicable. How does the person on the left ride as near to the right as practicable? I usually argue that the law allows two cyclists to occupy an entire lane, since two cyclists need this much space to travel safely. Unfortunately, there is no case law on these issues.

Bicycles may not legally be attached to other vehicles. It is impermissible for a cyclist to hang on to the back of a car and be pulled along. Further, bicycle operators are prohibited from carrying packages which prevent them from keeping at least one hand on the handlebars.

C. LAWS REGARDING BICYCLE EQUIPMENT

In addition to the general traffic rules, the legislature has mandated certain rules regarding necessary bicycle equipment. Perhaps the most surprising is O.R.C. §4511.56(B) which prohibits us from riding any bike that is not equipped:

• “…with a bell or other device capable of giving an signal audible for a distance of at least one hundred feet, except that a bike shall not be equipped with nor shall any person use upon a bicycle any siren or whistle.”

Bicycles must also have an “adequate” brake, a “permanent and regular seat,” and, when being operated during the statutorily defined “nighttime,” the bike must also have a front white headlamp, a rear red taillamp, and a rear red reflector, all of which must meet certain statutorily prescribed standards.

II. INVESTIGATION OF A BICYCLE ACCIDENT CLAIM

Bicycle accidents cannot be investigated as one would investigate automobile accidents. Bicycles and their operators are small, quick, light, narrow and tall when compared with motor vehicles. Motorists scanning the road for large box-like objects that represent a potential danger to them may not even “see” the cyclist prior to impact. Human factors experts may be critical in your bicycle accident case.

The physics of analyzing the forces of two motor vehicles colliding is completely different than the analysis of a car/bike crash. A heavy motorcycle reacts differently, and has an extremely different center of gravity, than a 25 pound bicycle when involved in a crash with a car or truck. Typical pedestrian accident analysis also doesn’t work since the cyclist is sitting up in the air with a high center of gravity and since typical bike speeds are 10 to 15 miles per hour. The speed of the bike and the relatively high position of the rider may effect the reconstruction expert’s opinions on point of impact, force of impact, trajectory and virtually every other variable considered in accident reconstruction.

In any significant case, plaintiff’s counsel must consider the wisdom of obtaining a specialist — a bicycle accident reconstruction expert. This should be someone with sufficient engineering credentials to reconstruct the accident, of course. But the expertise in the bike area should include significant riding experience as well as research into how bike accidents happen and what happens to the rider and the bike under various scenarios. Often such experts are also experts in bicycle handling and can look at your facts with an eye toward what a reasonable cyclist would have, or should have done.

A site visit with such an expert can be an eye-opening experience as previously unnoticed small slopes, tire-eating roadway grooves, treacherous gravel or other road hazards are pointed out to you. It is not unusual for motorists to grossly underestimate the speed of a bicycle, especially for a faster riding cyclist. Careful measurements of the distances between landmarks near the accident scene may enable you to effectively cross examine the motorist and discredit the motorist’s version of the facts while providing your expert with a sound basis for his own opinions of how or why the accident happened.

A. A CHECKLIST FOR THE INTERVIEW OF THE BICYCLIST/CLIENT

In addition to the usual information you would acquire about any vehicle accident, you should consider asking questions of your cyclist client on the following topics. Much of this information might be useful in laying the foundation for arguing to the jury about your client’s excellent bike handling skills, expertise in handling the bike in traffic, or training in avoiding accidents.

BICYCLE INFORMATION

–MAKE, MODEL, YEAR, SERIAL NO.

–What style of bike — Racing, Touring, Mountain, “Cruiser, ” Hybrid, etc
–Where purchased? When? How much?
–Obtain Bill of Sale & the Owner’s Manual as well as all other documents from the seller.
–Estimates on Bike Damage
–Obtain photos of all damage.
–FRAME STYLE — Racing/ Touring? Mountain bike?
–Dropped handlebars or straight bars
–Where were hands at time of accident
–Any marks on wheels, frame, handlebars, etc. to prove point of impact?
–Any bike parts bent, twisted, moved, shifted?
–COMPONENTS — model/manufacturer of each
–Obtain specs and compare to what is actually on the bike
–Find out who changed and when
–How many speeds
–What gear in at time of accident
–SHIFT LEVERS
–Location?
–On down tube?
–On handlebars
–PEDALS
–Clipless? How familiar with pedals? How long used?
–Toe Clips? Feet in toe clips at time of accident?
–Feet slip off, or get stuck on, bike at any time?
–BRAKES
– Make, model
–Original? Who installed, if new?
–Last adjustment?
–Who does maintenance?
–Last time changed brake pads?
–Visual Inspection–Do brakes hit rim?
Misadjusted brakes may hit tires, causing loss of braking power
–WATER BOTTLES
– How many
–Where on bike?
–Using or reaching for at time of accident?
–LIGHTS
– Make, Model, Wattage
–Nighttime accident? Lights operational? On at time of accident?
–Lights meet pertinent O.R.C. specifications?
–REFLECTORS
– Make, Model
–How Many?
–Where on bike?
–Any removed? By whom?
–Approved?
–HELMET
– Make, model
–Worn at time of accident?
–Where purchased? When? How much?
–Obtain Bill of Sale & All Documents from manufacturer
–Visually inspect for ANSI, ASTM, SNELL stickers.
–Obtain and securely store helmet
–Any marks on helmet from damage?
–Any indentations inside? Cracks in Styrofoam?
–Any evidence of failure of buckles? Straps?
–Any evidence that helmet not fastened properly by client?
–Compare helmet indentations with injuries
–CLOTHING
–What was cyclist wearing at impact?
–Obtain clothing. [May play critical role in proving "conspicuity" of rider]
–Property damage claim for expensive clothing?
–Any reflective material on clothing?
–OTHER ACCESSORIES
–Computer?
–Obtain the computer, see if it broke at impact–stuck on time, speed, etc
–Heart monitor?
–Bell or other noisemaker? –See required equipment discussion.
–Fenders
–Rack
– Anything secured to rack?
–”Dog Attack” stuff — squirt guns, “Dazer” stun gun device, air horn, etc
–Luggage, storage bags, panniers
–Anything in them… Heavy stuff may unbalance rider, effect handling

CLIENT’S BICYCLING INFORMATION
–How long riding
–Is client a “serious” rider?
–How many annual miles?
–How often on roads, compared to bikepaths, sidewalks, etc
–How comfortable on roadway
–What type of riding done?
–Weekend casual [10-15 miles]
–Longer casual [20 - 50 mile rides]
–Tiathalon
–Racing
–USCF? What Category?
–Familiar with paceline riding?
–Off road
–Commuter
–”Loaded” touring — self contained long tours with full camping gear.
–Any formal bicycle handling training?
–Take “Effective Cycling” course?
–Take college courses
–Ever teach bicycling course
– Through local clubs?
–Belong to any bicycling organizations
–Local bicycling clubs
–National clubs or groups
–Advocacy groups
–Racing or touring clubs?
–Ride any “national” or organized rides?
–Races?
–Read any bicycling publications?
–Any training on properly maintaining bike
–Where is maintenance done
–Does client adjust brakes, gears, shifters, etc?
–Does client exchange parts, change own tires?
–Any training on proper use of quick release devices?
–Note: Some bike shops now have purchasers sign a form indicating that they have received training on how to use the QR device.

BICYCLE ACCIDENT INFORMATION

It is critical to obtain the bicyclist’s full explanation for his or her bike handling at the accident scene. Find out why the cyclist reacted the way he or she did. Perhaps loose gravel or debris prevented the cyclist from traveling along the far right side of the roadway. Perhaps a dog cut off the cyclist and the cyclist fell taking evasive action. Was the cyclist training? Riding a paceline? Maintaining a proper lookout for road hazards? Properly signalling any intentions to change course?

Do NOT rely on the police report and the investigating police officer’s “reconstruction” to properly investigate a bicycle accident. Such personnel typically have little if any training in technical bicycle accident reconstruction. I once handled a death case in which the investigating officer concluded that the cause of the accident was that the cyclist made a sudden 90 degree left turn in front of a passing automobile causing the car to broadside the bike. The officer took numerous photographs of the bike being held up against the front of the car, matching up the damage to both vehicles.

My bike accident reconstruction expert noted immediately that “Bikes don’t make right angle turns!” Indeed, bikes turn gradually, by leaning, not by steering, and a bicycle simply can’t “turn on a dime” as this report indicated. My expert also examined the rear wheel of the bicycle in question and concluded, based upon research he had conducted in which hundreds of bicycle wheels were struck from behind, that the defendant had, essentially, rear ended the bike. This impact caused the bike to pivot around and smash broadside into the front of the car. These opinions overcame the officer’s cursory and unsupported conclusions and provided the impetus for settlement. The family almost failed to seek legal assistance based upon the officer’s conclusions that the cyclist was at fault!

Again, the importance of utilizing a reconstruction expert familiar with bicycle accidents and the physics of bicycle riding, cannot be overemphasized.

The “gear” the bicycle was in at the time of the accident may be critical. You should obtain the cyclist’s recollection of this and make sure, if possible, that no one tampers the position of the chain on the sprockets after the accident so that you or your expert can evaluate the gearing and make a determination as to whether or not this information is useful. The “gear” can be determined by visual inspection of the sprockets, front and rear, on which the chain is resting and may provide some evidence of speed, or a minimum or maximum speed.. Again, unless you know how interpret this data, consider consulting an expert.

III. TYPICAL BICYCLE ACCIDENT CLAIMS

Adult bicycle accident deaths and injuries are on the rise. Typical bicycle accident personal injury or death claims usually arise from encounters with automobiles, dogs, or defective equipment. My purpose is not to lay out “the law” in these areas, or to tell you how to handle an auto accident or dog claim, but to simply point out how the fact that a bicycle was involved may require you to adjust your thinking in some ways.

A. AUTOMOBILE ACCIDENTS

It has been estimated that car/bike accidents account for only 12% of all cycling accidents, but over 90% of all cyclist deaths. In addition to gathering the facts, the savvy attorney needs to realistically analyze the cyclist’s role, if any, in causing the accident. Unfortunately, too many cyclists [and attorneys] learned how to ride “wrong.” Always think of the bicycle as part of the transportation fabric, albeit a slower moving part than most, and you will usually find the right answers.

1. OVERTAKING MOTORIST

Bicycles typically travel 10-15 mph, or 14 – 22 feet per second. For a strong rider, 20+ mph with bursts close to 30, or 44 feet per second, are not unusual. It is amazing how many motorists underestimate this speed when trying to pass the cyclist before making a right turn directly in front of the cyclist, causing the cyclist to crash into the passenger side of the vehicle. The motorist frequently fails to follow the legal requirements for properly passing another vehicle and, due to the poor judgment of the cyclist’s speed, cuts off the cyclist after passing. Many motorists forget that they must provide an audible warning when passing and this violation may be negligence. Remember, though, that negligence is NEVER presumed…you must always ask the question since the court will not presume a failure to provide an audible warning if there is simply no evidence at all!

Untimely horn honking has also led to liability. If the motorist blasts the horn when he is just inches away from the cyclist [unfortunately, a popular, and extremely hazardous behavior, especially among teenaged motorists], the cyclist may veer left in a startled reaction. The motorist can be found negligent, even though the cyclist technically may have entered the motor vehicle’s path, since the use of the horn was negligent and since a “safe distance” for passing was not maintained.

We find some great language in an old Michigan case in which a passing truck offered no audible warning to the cyclist he was passing:

• “The law provides no groove’ in which it [bicycle] shall travel, and a driver coming from behind without warning may not rely on the bicycle remaining at a specific distance from the edge of the road. Safe distance’ is not measured by cold inches, but by the circumstances and the variation from perfectly straight riding which may be anticipated from ordinarily careful persons. It cannot be said as a matter of law that four or six feet from the right edge of an 18 foot pavement is a safe distance’ to pass a bicycle when the truck steals up without warning…” Stockfish v. Fox (Mich. 1936), 267 N.W. 754.

2. LEFT TURNING MOTORISTS

Oncoming motorists frequently turn left in front of approaching bicycle operators. The cyclist, if he is lucky, flies over the hood of the car and ends up eating gravel on the other side. The unlucky cyclist slams into the car at full speed, broadside. The key issue is to prove that the cyclist was acting reasonably and was on the “roadway” at all pertinent times. If the cyclist was on the berm, or the sidewalk, the motorist can argue that the motor vehicle had the right of way. If the cyclist entered the intersection from a point off the roadway he has a duty to enter the roadway safely. If the cyclist is riding on the roadway, in the proper lane of travel, toward the intersection, then the cyclist has the right of way and should win the case.

3. PHANTOM CAR CASES

Cyclists are frequently the victim of so-called drive-by “phantom” attacks. The cyclist is often unbalanced during a sudden evasive maneuver to avoid a passing motor vehicle, skidding on bad road conditions or ejecting from the bike. A hand slap from a passing motorist, or a tossed Coke can, can cause a horrible crash. Typically, the cowardly motorist speeds away and is never found.

There was little a cyclist could do after such an encounter prio to Girgis v. State Farm Mutual Auto Ins. Co. (1996), 75 Ohio St.3d 302. Now, assuming that the burdens imposed by Girgis can be met, an uninsured motorist claim can be presented to the cyclist’s own automobile insurance carrier even if there is no physical contact made between the auto and the bike.

4. NIGHTTIME BICYCLE ACCIDENTS

The issue that arises in most nighttime accidents is the cyclist’s “conspicuity.” The lights required to used by cyclists at night are defined in terms of making the cyclist more conspicuous to others, not in terms of helping the cyclist see the road better. Historically, most lighting systems sold for bicycles fail miserably and do not meet the law’s standards!

In a nighttime case you may want to consider an expert to testify as to the “conspicuity” of the cyclist — how “visible” the cyclist was to the motorist. You may also need a technical expert to testify about the retro reflector system of the bicycle, how it works and how it helps motorists perceive bicyclists at night. Anything that your client has on the bike or was wearing that may enhance the cyclist’s “conspicuity” should be examined and emphasized by counsel. Expert testimony may be needed to counter the argument that your client was nearly invisible to the oncoming motorist.

There are experts who regularly testify in the area of “conspicuity, particularly in railroad crossing cases. Such experts can provide technical data about how the eye “sees” and testimony interpreting the available light at the scene, the visibility of the bike, the reflectors and the clothing as well as the level of moonlight and other factors which may help you persuade the jury that your client was highly “conspicuous” and should not have been struck by the motorist!

I once used a professional photographer as an expert in a nighttime accident bicycle case where the value did not warrant extensive expert testimony. My client had a light on his bike, but did not have it turned on even though it was dark. My client was well over six feet tall and was wearing a white turtleneck and a shiny white helmet. His bike was equipped with a complete reflector system. The motorist turned left in front of the cyclist, causing the cyclist to broadside a van, and the accident occurred under a very bright streetlight.

My photographer took “existing light” photographs to try to show what was “visible” to the motorist as the cyclist approached. We had some photos taken with the cyclist’s light turned ON and some with the light OFF. The case was won when the motorist, who was unaware of this distinction in the photographs, admitted on cross examination that she saw no difference in the “conspicuity” of the cyclist in the two photographs!

In the case of Adams v. Mackleer (Pa. App. 1976), 361 A.2d 439, a cyclist who was riding on the berm at night, without a light, was able to get to the jury as the court found he was not required to have a light since the “berm” is not included in the definition of “roadway” under Pennsylvania law. The same argument should work under Ohio law!

B. DOG/BIKE ENCOUNTERS

As much as I love dogs, and dog cases, I absolutely abhor them when I am riding. “Absolute liability” is the rule for dog cases in Ohio. No comparative fault, no technical traffic code defenses. Once you meet the Code’s simple test the only issue is “How much?” To win, you need only prove:

1. Ownership or keepership of the dog.
2. Whether the actions of the dog were the proximate cause of the damages;
3. The monetary amount of damages.Hirschauer, supra.

Since most dog/bike encounters occur on the roadway, not the dog owner’s premises, the statutory defenses found in O.R.C. §955.28 are rarely available.

Dogs seem to love to chase bicyclists, running along with the bike, sometimes nipping at the cyclist, sometimes running in front of, or into the wheels of, the bike. Often the cyclist is injured not by the dog’s teeth, but by impacting the ground after a crash caused by trying to avoid the dog. Ohio’s “dog law” is not a “dog bite” statute but a “dog causes accident” statute. Any crash caused by the cyclist trying to avoid the dog is just as actionable under the law as if the dog bites the cyclist, even if the dog subsequently comes over and licks the cyclist’s hand! !

You should know that cyclists use various means to protect themselves from dogs and this must be explored in the initial interview. Some cyclists use squirtguns filled with a noxious liquid, some simply squirt the dog in the face with the water from their waterbottles. There are electric devices, such as the “Dazer” which shock the dog with electricity. Many cyclists prefer loud noise blasted from compact airhorns typically found on boats to scare dogs away. Still others simply swipe at the dog with their tire pumps.

The cyclist may crash while avoiding the dog, while trying to activate the dog defense mechanism or because the dog gets physically entangled with the bike or the rider. As long as the encounter with the dog was the cause of the crash, your client should recover. In the proper case, a bicycle handling expert may be needed to prove that your client’s chosen method of dealing with the dog attack was a reasonable, foreseeable and acceptable reaction to the encounter.

C. PRODUCTS LIABILITY CLAIMS

Bicycle products liability claims are often made more difficult than necessary by the client. Many cyclists love to tinker with their machines. The simplicity of the machine and its openness are very attractive. Many cyclists perform their own maintenance and often swap the parts that arrived with the bike for other components, perform their own adjustments and even repack their own bearings. Racers, professional and amateur, may change their sprocket clusters daily, depending on the anticipated race terrain.

A “bicycle” is usually sold under a single brand name [e.g., "Schwinn"] but is really made up of components from a large number of different manufacturers. Your bike which is “made in the USA” might have French rims, English brakes, a Japanese fork, a frame made in Taiwan from American materials and Italian shifters. It may have been partially assembled overseas and shipped to this country, ready for distribution as a homemade product. Plaintiff’s counsel in a bicycle products liability case may discover the joys of hiring Taiwanese interpreters when deposing the design engineer of the frame!

The world of bicycle “manufacturing” is confusing and one needs to locate an expert with knowledge of the industry before beginning to evaluate a potential claim. Such an expert can look at the marks on the equipment and make determinations of its point of origin. This expert will also know which companies have working relationships, which companies share resources or equipment, and which companies have adverse relationships and may have information they are willing to share about their competitor. The expert will know which engineers used to work for the companies in question and where you might find suitable experts to testify in your case.

1. QUICK RELEASE CASES

One of the most prevalent accident scenarios involves the unanticipated release of the front wheel. Such accidents can lead to catastrophic injuries as the front of the bike literally falls away from the rider and the rider is ejected. How can the front wheel fall off of a bicycle and who can be liable for such accidents? Bicycle wheels are held to the “fork” of the bicycle in one of two ways — axle nuts or a “quick release” mechanism. On “low end” bikes, axle nuts are used on both sides of the wheel and, when tightened with a wrench, clamp the wheel to the fork. The federal government requires such devices to be equipped with a “positive locking device” — a small clip that prevents the wheels from falling off should the nuts loosen.

“Quick release” devices utilize a hollow axle. A skewer is inserted through the axle. There is a locking nut on one side and a clamp device on the other. The nut is turned by hand until it is almost tight. The clamp is then tightened by hand to lock the wheel to the bike. If the nut is turned too tight, then the wheel simply will not rotate. If the nut is too loose, however, the wheel will stay on the bike for a while, but is subject to becoming prematurely disengaged if a bump, hole or other obstacle is encountered.

The “quick release” mechanism was developed in the 1930’s by legendary bike racer and bike builder, Tullio Campagnolo. It was designed to help racers quickly remove wheels without wrenches and change flat tires during racing conditions. There is no need for mass market consumer bikes to have such devices, but they have become standard features on virtually all “bike shop” and high end bikes.

Schwinn, in 1972, patented the “Brilando clip,” a highly effective PRD and consumer advocates wanted the government to add a requirement that quick release devices be supplied with such a clip. The federal government did NOT require quick release devices to utilize “positive retention devices” ["PRD's"] when it developed its “bike rules” in the mid-1970’s. Many manufacturers still refuse to use these little clips despite their low cost [pennies] and ease of use. Front wheels secured by quick release devices continue to fall off at an alarming rate!.

Quick release cases caught the eye of plaintiff’s counsel following the publication of a report in ATLA’s Trial magazine in 1990 in which it was noted that there were more than 100 of these cases in the ATLA Exchange. At least one expert believes that “…the mechanism should only be used by experienced cyclists who have received adequate training in its proper use.”

On their face they are intriguing cases. Serious injuries caused by the failure of a simple- looking device that is not so simple to use and for which there is a cheap, effective aid which is omitted by the manufacturer. Be wary, however. These are extremely difficult cases unless the release came immediately after the wheel was installed by someone other than your client. Once the client manipulates the device the liability of the prior wheel installer is probably gone. If the device actually fails mechanically, obviously, the case is different. But if the wheel just “fell off” then a very careful look at the “chain of custody” of the bike must be conducted before getting too far into the claim. The engineering costs of proving causation can be significant and will probably include both metallurgical testing as well as accident reconstruction. Further, many bike shops now have the purchaser sign a form indicating that they have received training on how to manipulate the quick release mechanism.

The most famous “quick release” case turned out not to be a quick release case at all. In Schaffner v. Chicago & N.W. Trans. Co. (1989 Ill.) 541 N.E.2d 643, the plaintiff’s front wheel came off as he attempted to cross some train tracks and the plaintiff suffered severe injuries. Plaintiff sued Schwinn, arguing a quick release failure, as well as the railroad. The judgment, $8,325,000, was against the railroad and Schwinn was exonerated, even though Schwinn had elected NOT to use its famous Brillando clip on this bike and sold the bike without any positive retention device whatsoever!

2. LIGHTS AND REFLECTORS

Any trial lawyer knows that the precedential value of a single verdict is minimal. A 1993 New Jersey products liability verdict, however, has so rankled the bicycle industry that the effects are still being felt.

In Johnson v. Derby Cycle Corp, et al., Superior Court of New Jersey, Essex County, Law Division, Docket No. ESX-L-16063 – 89, the plaintiff was riding downhill, at night, without a light. He struck, or was struck by, a vehicle turning left in front of him and suffered horrible, disfiguring injuries. The plaintiff successfully argued that the bicycle in question was defective because it was sold without a headlight! Plaintiff argued that a light should have been a “delete option” which came with the bike unless the buyer elected to not purchase it. He also argued that there should have been a warning sticker on the bike indicating that it was not safe to ride at night with only the reflectors that came with the bike. The verdict — $7,000,000.

The press, both industry journals and consumer publications, have villified this decision, and the plaintiff’s attorneys, in a manner similar to the infamous McDonald’s coffee case. To this day, Internet postings occur almost daily on the case and invariably favor the defense, questioning the integrity of a jury system that could permit such an award. Even the parties’ experts waged a written battle in the industry press.

In Johnson, plaintiff’s counsel Kenneth Berkowitz, who rides a carbon fiber Kestrel bicycle when he finds the time, supplemented expert opinion with a survey he commissioned which concluded that some 80+% of New Jersey teenagers believed that bikes were safe to ride at night without lights! He argued that riders are lulled by bike makers into thinking they are safe riding at night without lights when manufacturers have known since the 1960’s that lights are needed, not to light up the roadway, but to provide a warning to motorists of the presence of a bicycle. Berkowitz spent tens of thousands of dollars on expert witnesses during the six week long trial and pulled out a winner. Would the same arguments work in conservative Hamilton County? I don’t know the answer to that but this case certainly points out how a unique argument and the savvy to advance it can result in a tremendous victory for your client.

3. HELMETS

The current mantra “Helmets Are Good” is based upon extensive research. Helmeted riders stand a chance of suffering fewer, and less severe, head injuries than their helmetless counterparts. In one famous study, 83% of cyclists killed in roadway accidents suffered head or neck injuries and vertebral fractures tended to be in the area of C1.

Bicycle helmets tend to be light Styrofoam structures with some sort of thin, plastic cover and straps designed to hold it tightly to the rider’s head. So-called “soft shell” helmets were on the market for a while. However, they are potentially troublesome because they may not be able to withstand more than one impact. Also, they tend to “stick” to the ground, holding the rider’s head while the rest of the body continues to move along.

Any helmet in use today should have stickers showing the approval of one or more of the three standards bodies promulgating helmet standards — ANSI, ASTM or The SNELL Foundation. There are many helmets that have not been so certified. If you find that your client used an uncertified helmet then an investigation into such a claim should be made, including having the helmet tested and having an expert determine whether any alleged “defect” contributed to your client’s injuries. Of course, if the straps or fastener appear to have failed or broken, such an investigation may be warranted.

Before undertaking a lengthy, and expensive, helmet case, you should realize that a loose fitting helmet is almost like wearing no helmet at all. When the cyclist’s head and body start to fall, anything that is loosely attached to the head or body will “lag behind,” much as a necklace lags behind when you jump down from a chair. The effect of this is that when the head and body impact the ground, the loose fitting items do not catch up until a moment later. If the loose fitting item is a helmet, the head will be essentially unprotected upon impact and the indentations and damage on the helmet will not “line up” with the injuries.

4. OTHER BICYCLE PRODUCTS LIABILITY CLAIMS

Any component that fails is a potential hazard. Frame failures have increased in recent years, probably in relation to the tremendous increase in sales of off-road bicycles. People are riding their bikes hard. Impacting bumps, rocks and tree stumps all age the bike quickly. Take a careful history of your client’s riding habits before getting too far into such a case.

Bicycle frames are now being made of steel, steel alloys, aluminum alloys, titanium, and a host of composite materials, such as carbon fiber. In addition to huge national and international manufacturers, many small companies and individuals are marketing their own brand of “custom made” bicycle frames. At times, the amount of testing a frame design undergoes before placing it on the market may be minimal, especially among smaller, unique frame builders. Again, as in any products liability case, expert testimony is critical. Your bicycle products case may include metallurgists, bicycle design experts, forensic engineers, human factors experts, biomechanics experts and bicycle handling experts.

In 1995, one American bicycle manufacturer, Cannondale, took the extraordinary step of adding a sticker to its frame that warns buyers to inspect its aluminum frames “periodically” for cracks since “riding a cracked frame could lead to complete failure and serious injury.” This was allegedly done because of the abuse to which its off-road bikes are subjected. Bike shop owners were also urged to look for cracks in aluminum frames. Such cracks may be the result of hard riding, old age, or poor manufacturing. A tiny crack in an aluminum frame is extremely serious because of the properties of the metal. Similar to scratching a sheet of glass, the aluminum tube is far more likely to break, and to break along the crack line.

Another issue unique to bicycling accident cases is the age-old problem of “gram shaving.” Armed with the belief that “lighter is better,” aggressive riders, especially racers, have been known to try to “shave grams” from the weight of their bike by modifying components. There have been cases where cyclists have drilled holes in components or left off parts they did not feel were needed. It is not uncommon for cyclists or bike shops to remove all reflectors, either for looks, weight or a perceived increase in aerodynamics. You should have the entire bicycle inspected in any serious case so that these types of glitches can be caught early on and not during the cross examination of your metalurgist!

IV. TRIAL ISSUES UNIQUE TO BIKE CASES

Public perceptions of bicycle operators on the roadway are not favorable. To be successful, plaintiff’s counsel must creatively find ways to counteract any perceived bias against the bicycle operator in order to at least have the jury understand that the cyclist has the right to on the roadway.

During discovery you should submit a series of requests for admissions to the defense which include the following:

–Admit that a bicycle is defined as a vehicle for purposes of Ohio law
–Admit that the plaintiff had the right under Ohio law to operate his bike on the road in question at the time in question.
–Admit that the plaintiff was legally operating his bike at the time of the collision.
–Admit that there is no assumption of the risk by simply riding one’s bicycle on the roadway
–Admit that the plaintiff’s bicycle fully complied with all bicycle equipment requirements contained in state and federal law.

These admissions, if obtained, will provide counsel with the basis to address some of the typical public perceptions that your jury is likely to have. Much of the public enjoys cycling on bike paths, but is afraid of riding on roads outside their subdivisions. Riding on “busy” roads is perceived as extremely dangerous and one gets the sense that the public feels that the cyclist takes his life in his hands by doing so. The public perception of the “danger” in riding with traffic belies an unspoken belief in the legal doctrine of “assumption of risk” that plaintiff’s counsel must fight from the first moments of interaction with potential jurors.

During voir dire, you can try to dig into jurors feelings about cyclists, ask them if they know anything about the “law of bicycling,” whether they believe cyclists are permitted to ride on the roadway, etc. Find out if they have angry feelings when held up by a slow moving cyclist. Ask them how they would feel if the cyclist had the legal right to be on the roadway. Ultimately, you can argue [or state in voir dire, if permitted] that the defendant has ADMITTED that the cyclist had a right to use the road and be part of the fabric of the traffic pattern, that the judge will instruct you that one does NOT assume the risk of injury simply by riding on the roadway, that the defendant admits that the bicycle fully and completely complied with all state and national regulations, etc. If your client comes across as a reasonable person you at least stand a chance of starting off the trial with the less biased than before!

The emphasis should be on painting a picture of the cyclist as a regular andnormal part of the flow of traffic. Stress that the bicycle operator must obey all pertinent laws, but is entitled to the same protection as one encased within a 3,000 pound metal and glass structure. Emphasize the ease with which a person on a bike may be injured by the carelessness and inattentiveness of motorists… the slightest nudge can kill a cyclist. A bicycle operator loses EVERY encounter with a car. Emphasize the importance of balance is to on propped up on two skinny wheels and how easily a close encounter can throw the cyclist into an unbalanced position, how a car cutting off a cyclist can send him into the gravel and debris on the side of the road causing a horrible crash. Emphasize how a dangerous a running dog is to cyclists, how many different ways a dog can cause a serious crash.

Represent your cyclist/client well. Bicycling advocates have fought for more than 100 years for their right to use the roadways. By bringing accident claims and forcing errant tortfeasors to pay reasonable and fair compensation for their injuries, bicycle operators advance the cause of cycling for all cyclists.

BICYCLING RESOURCES

–Bicycle Accident Reconstruction and Litigation [4th Ed. 1996], James Green, et al. The Lawyers and Judges Publishing Company.

–Effective Cycling [6th Ed. 1993] , John Forester. The MIT Press.

–Bicycle Forum-The Journal of Bicycle Advocacy. The quarterly publication of the Bicycling Federation of America. [202-463-6622].

–”Bicycle Facility Design and Legal Liability,” Seyried, Robert K., 8 Bicycle Forum 18.

–Liability Aspects of Bikeway Designation: A Special Report,” English, John. This report was published in 1986 by the Bicycle Federation of America and, while somewhat dated, still presents the essence of the issues raised in Bike Path design cases.

–68 A.L.R.4th 193, “State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path.”

–Bicycling. A monthly bicycle magazine published by Rodale. (800-666-2806). I have often contacted various writers and editors who freely offer their suggestions as to possible experts and technical research into bicycling issues. The Bicycling Magazine Internet site on America Online [Keyword: Bikenet] provides a quick way to e-mail virtually every member of the staff.

–”The Double Standard: Why Injured Cyclists Usually Lose in Court,” Pena, Nelson, Bicycling, December, 1991, at 24. This article cites statistics from Jury Very Research, Inc. showing that cyclists tend to lose 55% of their personal injury trials and attempts to explain why.

–Bicycle USA. The monthly journal of the League of American Bicyclists discusses the burning advocacy issues of the day . [410-539-3399]. The Annual Almanac lists resources in every state including all Effective Cycling instructors as well as a nationwide network of lawyers handling bike claims and a complete list of articles and cycling publications. Also listed is every participating bike club as well as each bicycling organization and governmental agency for all 50 states and for the federal government. An invaluable resource.

–The Cyclists Yellow Pages. Free with a subscription to Adventure Cycling, a group focusing on bicycle mapping and touring. The Yellow Pages contain listings to local, state, national and international resources of bicycling information, particularly touring information.

–Actions, Damages, Defenses (1990), Matthew Bender, Vol 1D–Bicycles.

–Traffic Laws Commentary –Bicycling Laws in the United States (1974) and Supplement (1974 – 80). A somewhat dated essay listing all national bicycling laws in detail. Published by the United States Department of Transportation, National Highway Traffic Safety Administration.

–16 C.F.R. Part 1512. These are the regulations promulgated by the Consumer Product Safety Commission regarding bicycles.

–Fatality Facts. Published annually by the Insurance Institute for Highway Safety (703-247-1500). The annual chapter on bicycles contains the most recent accident statistics available.

–Ohio Crash Facts. This annual publication is available from the Ohio Department of Highway Safety and contains several pages statistically describing the previous year’s bicycle accidents.

–A Survey of Ohio Bicycle Law, Cramer, William C. & Hadacek, John D, 2 Ohio N. L.R. 524. This article was prepared immediately following the passage of the bicycle provisions of the Ohio Revised Code and is particularly helpful if legislative research is needed.

–Injuries to Bicyclists: A National Perspective, Baker, Susan P.; Li, Guohua; Fowler, Carolyn; Dannenberg, Andrew. Published in 1993 by the Johns Hopkins Injury Prevention Center and available from the National Center for Injury Prevention and Control (404-488-4400). The bibliography of this article contains a summary of much of the helmet research then available.

–Bicycle Helmet Safety Institute. 703-486-0100.

–”Factors in the Initiation of Bicycle-Motor Vehicle Collisions,” Williams, Allan F., 130 Am. J. Dis. Child 370 (1976).

–NEISS — Free information is available about biking injuries from the CPSC at 301-504-0424.

–76 A.L.R.4th 107, Products Liability: Bicycles and accessories.

–Adventure Cyclist. Published monthly by Adventure Cycling, a nonprofit organization for recreational bicyclists.

–Bike Touring: The Sierra Club Guide to Outings on Wheels, Bridge, Raymond. This book contains an excellent description of bicycle handling skills, different types of bikes, bicycle basics, gearing, and frames, as well as discussing, in depth, the needs of the touring cyclist.

INTERNET RESOURCES

–America Online. The BIKENET on AOL is a fascinating space. You can access Bicycing Magazine’s cite along with numerous others. There are easy ways to access bicycle bulletin boards and other, more specialized, Web sites. If you are a computer user, you will find bicycling enthusiasts among the more active publishers on the Internet.

–Ohio Bicycle Federation. [ 513-890-6689]. This is a state-wide bicycle advocacy organization. You may subscribe to its Internet Bulletin Board by sending e-mail to Chuck Smith: Chksmith@aol.com

–League of American Bicyclists. The LAB monitors Internet discussion groups on bicycle issues. Subscribe by sending e-mail to: majordomo@fuji.physics.indiana.edu and type “subscribe” in the subject line. The body of the message should contain only these two words — “subscribe labmembers.”