Saturday, February 21, 2015

It's Time for People on Bikes to Stop Yelling "Clear" at Intersections


When proceeding through an intersection on a group bike ride, it's fairly common to hear a lead rider call out "CLEAR" as an indication that there are no vehicles approaching and that it is safe for other riders (behind the leader) to enter and proceed through the intersection.  Some bike safety advocates actually promote the practice.  

But what happens if a lead rider announces that an intersection is clear when it isn't?  What if someone relies on a lead rider's "clear" call and is struck by a car because the leader misjudged the timing or just didn't see the car?  Can the lead rider be liable to the follower because he or she gave an imprudent "clear" call?  More importantly, if there is a chance that someone could be injured because they relied on the assurances of another rider, wouldn't it be better to avoid that chance altogether?

It's time for people on bikes to stop yelling clear at intersections.  Every rider has a responsibility to ensure that it's safe to cross an intersection.  We all have a duty to assess the risks for ourselves.  If a lead rider chooses to "clear" an intersection, he or she does so at the risk of assuming liability to any rider who is injured due to the lead rider's negligence.  Here is why.  

1.  Pennsylvania's "No-Duty" Rule.           


From a starting point in the analysis, its important to understand that in any negligence case, a plaintiff must establish that another person owed him or her a legal "duty of care."  Once there is a duty of care, the plaintiff has to prove that the other person breached that duty.

In Pennsylvania, strangers do not ordinarily owe each other any duty of care. Rather, Pennsylvania has a general "no-duty" rule which states that a defendant owes no duty to warn, protect, or ensure others against risks that are common, frequent, expected, or inherent in an activity.

As it relates to cycling in a group, the "no-duty" rule is generally going to apply because encountering a vehicle while cycling is a pretty common and disturbingly frequent occurrence.  With that being said, there are circumstances under which liability could arise.   

2.  Creating a Duty of Care Through Conduct.  


As long as one does not behave in a manner that creates a duty of care, there should be no liability.  But what happens when someone takes on the responsibility of clearing an intersection for another rider?  Arguably, that person has created a duty to clear the intersection in a reasonable manner.  In other words, by "clearing" an intersection, a rider may have created a duty where one ordinarily does not exist.  

Pennsylvania courts have acknowledged the legal principle that "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully."  Individuals normally have no duty to act for the protection of others.  But, if a person chooses to act (and, to be clear, yelling "clear" is an "act"), then that person cannot "act" in a manner that increases the risk of harm to others.  Therefore, if a rider calls "clear" and another rider enters an intersection relying on the first rider's assurances and is injured, a case of negligence may arise.

3.  What the Courts Have Said on the Subject. 


Pennsylvania courts have not yet addressed the "clear" call issue between cyclists.  So, there is no direct guidance on this subject.  However, Pa courts have addressed the question of whether a motorist who waives on another motorist can be liable for contributing to an accident.

In the case of Askew by Askew v. Zeller, the court considered the question of whether a motorist who gave a hand signal to another motorist (i.e., she waived her hand from left to right) could be liable for an accident that occurred when the other motorist made a left-hand turn and was struck by an oncoming car.  Ultimately, the court dismissed the signaling defendant from the case, but only because the court found that her gesture was not the legal cause of the accident.  Rather, the court found that the plaintiff "clearly and unequivocally" admitted that he interpreted the defendant's hand signal "only to mean [that] she would remain stopped" and that he could proceed in front of her.  The plaintiff conceded that he never relied on the defendant's hand gesture as an indication that no other traffic was approaching the intersection.  Thus, under the specific facts and circumstances of the Zeller case, the defendant who made the hand gesture could not be found liable because - in the chain of events of the collision - the defendant's actions were not the legal cause of the plaintiff's accident.      

Despite the dismissal of the defendant in the Zeller case, the court held that it is normally for a jury to determine: (1) the type of signal made by a motorist (e.g., whether the driver was giving an "all clear" signal or simply yielding the right-of-way); (2) what reasonable interpretation could have been given to the signal (i.e., could the plaintiff have reasonably believed that the defendant-driver was giving an "all clear" signal or not); (3) whether or not the signaler's act was negligent under the circumstances; and (4) whether or not the signaler's act was the legal cause of the accident.  Thus, the court held that - given the right circumstances - it would be improper to dismiss a signaling defendant.  For example, if the plaintiff in Zeller had testified that he relied on the defendant's signal as an "all clear," then the court may have allowed the case to go to the jury.

Zeller gives some guidance to cyclists.  If the significance of a hand gesture between two passing motorists is normally a jury question, then the significance of a verbal gesture between cyclists could also be a jury question.  And once a case makes it to a jury, it is possible that a signaling (or, announcing) defendant could be found liable to a plaintiff for injuries and damages sustained in an accident.

4.  The Assumption of the Risk Doctrine.


Assumption of the risk is a defense that is established by proving that the plaintiff voluntarily and knowingly proceeded in the face of a known and obvious danger.  On any group bike ride, people would probably agree that every rider has assumed the (common, frequent, expected, and inherent) risks of the ride.  As a corollary to the "no-duty" rule, application of the assumption of the risk defense is going to depend on the specific facts and circumstances of each case.

Murphy's Law tells us that if something can go wrong, it will.  Although the defenses of "no-duty" and "assumption of the risk" may apply in certain (and perhaps, most) situations, it is undeniable that some factual circumstance exists whereby a lead rider who calls "clear" might be liable to a following rider who is hit by a car at an intersectional crossing because the lead rider created an unexpected situation that the following rider could not have anticipated.

It should also be noted that the status of the assumption of the risk doctrine in Pennsylvania is unclear.  It seems to continue as a valid defense though some courts have recognized that it was abolished by Pennsylvania's comparative negligence act.  

5.  To Clear or Not to Clear - That is the Question.      


On any group bike ride, it is incumbent upon every rider to confirm that the path is clear.  Riders should check - and double check - every intersection regardless of whether another rider tells them that it is "clear." 

But some riders do not do this.  Rather, some riders blindly follow the lead wheel like "bike lemmings."  It is not hard to understand why this happens. 

There can be a "follow-the-leader" mentality in any group.  Consider the concept of a "herd" or "mob" mentality.  Also, a group bike ride necessarily requires communication between riders to: (1) point out road hazards, including ice, bumps, dead animals, pot holes, etc.; and (2) indicate speed and direction changes.  Thus, it can be easy to disengage and zone out - particularly if you are working hard or exerting yourself - and just follow the leader.  But, if you blindly follow the leader into an intersection, you could find yourself in a perilous situation. 

Every rider in a group needs to be responsible for their own safety.  It is incumbent upon each rider to confirm that every intersection is clear before proceeding.  Lead riders can call out obstacles, debris, and general road conditions, but for the safety of everyone in the group, riders should stop yelling "CLEAR" at intersections.  Otherwise, if someone yells "clear," and it's not, that person could be the subject of a lawsuit and (like Zeller) find their name in italics on some cyclist's blog. 


To read more on this subject (which is clearly a hot-button topic), check out the numerous comments from RoadBikeRider.com by clicking here, here, and here.  To summarize, the author narrowed the key issues down to the following "kernals":
  • The practice of yelling “clear” is, in fact, pretty widely accepted but varies from place to place. 
  • Those who follow the practice do so with the understanding that it remains incumbent upon each and every rider in the group to “look out for themselves” – that a “clear” call is really just a temporal courtesy from the person at the front of the group, at that particular time that they arrive at the intersection, stop sign, etc. When you get there, check for yourself. (Which is exactly the way it works in the groups I ride in: Calls of “clear” continue from the front to the back of the group as riders get to an intersection and “clear it” for themselves.)
  • So, the “clear” call really means the intersection is clear for me to cross right now. It’s not meant to be a green light for others. (Just as a call of “car left” may mean there’s still time for the next few riders to safely cross before the car is close enough to be a threat. Again, though, it’s up to each rider to check for himself or herself.)
  • Most of this group repeated a refrain I ride by (and taught my son last year when teaching him to drive): Expect all drivers, at all times, to do the stupidest possible thing – and be prepared for it. (Like many of you who ride in urban or suburban settings, especially, I see distracted drivers in many forms on every single ride, no exceptions. I also look both ways, repeatedly, even at green lights, and work hard to stay safe.)
  • It seems that most experienced riders follow pretty much the same protocol – and that the issue of calling out “clear” is sort of courtesy window dressing. It’s still an expectation in some (maybe even most) locales, but experienced riders know exactly what it means – and how to approach the situation whether they’re in a “clear-calling” group, or a silent group.
  • The best policy (if it’s possible) is to discuss the “rules of the group” before any group ride – and reinforce what any particular “calls” mean (and don’t mean). And to clearly reiterate that each rider is ultimately responsible for his or her own safety on the road.


As most experienced riders know, any group ride can be joined by a new or unexperienced rider.  While the "regulars" may know and practice the "rules of the group," its the unknowing rider who could be subject to the dangers of the "clear" call.  For that reason, its a practice that I think should stop.  What do you think?  


Thank you for reading.



Matthew F. Dolfi, Esquire

Dolfi Law PC
BNY Mellon Center
500 Grant Street, Suite 2900
Pittsburgh, Pennsylvania 15219
412-227-9724

Website:
www.dolfilawpc.com

Facebook page:
https://www.facebook.com/PghBikeLawyer


Important notice:
The information provided in this blog article is not legal advice.  The information and opinions provided herein are solely for the general interest of the visitors to this website.  The information contained herein is only applicable to general principles of law in Pennsylvania and may not reflect current legal developments or statutory changes in various other jurisdictions.  Therefore, the information and opinions contained in this blog should not be relied upon or interpreted as legal advice.  No aspect of this blog article should be interpreted as establishing an attorney-client relationship between the reader and its author.  Anyone reviewing this article should not act upon any information contained herein without first seeking the advice of legal counsel.  
 

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, defective road conditions, dangerous roads, dangerous streets, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist, dolfilaw, Dolfi Law PC

Monday, February 9, 2015

As the Weather Starts to Improve: Look Twice, Save a (Bicyclist's) Life!


The ubiquitous slogan that is typically seen relating to motorcycles all over Pennsylvania.  Its usually followed with the phrase: "Motorcycles are everywhere."  But bicycles are everywhere, also.  And motorists need to be on the lookout for us, too.

According to a study in 2010, bicycle commuting in the City of Pittsburgh saw a whopping 206% increase over a ten year period.  The results were published on Bike Pgh's website and can be seen here.  In 2010, Pittsburgh witnessed the fourth largest growth of cyclists in the Nation!  And, that was before Mayor Peduto started installing bike lanes throughout the City. 

As we spin into 2015 - and start to anticipate warmer temperatures - you can expect to see more and more cyclists taking to the trails, bike paths, and roads.  When that occurs, it will be essential for motorists to keep both eyes on the lookout for cyclists.    

For now, as we just look forward to getting through the winter, there are some things you can do as a cyclist to avoid a car-on-bike collision.  Bicycling.com offered the following tips on how to avoid the five most common bike-vehicle accidents.  Here they are:


1.  THE LEFT CROSS - In this scenario, a motorist fails to observe a cyclist and makes a left turn directly in front of the cyclist.  According to the Pedestrian and Bicycle Information Center (PBIC), this type of accident accounts for nearly half of all bike-car crashes.


HOW TO AVOID IT: If you see or anticipate a car turning left into your path, turn right into the lane with the car.  Also, never creep into an intersection at a red light or stop sign in order to get a head start. 


2.  THE RIGHT HOOK - Here, a motorist passes a cyclist on the left and then turns right into the rider's path.


HOW TO AVOID IT:  As you approach an intersection, take the whole lane.  Its your legal right.  If you're in middle of the lane as you approach an intersection, motorists have no choice but to stay behind you until you proceed through the intersection.  Also, use hand signals early, before you reach the intersection, to alert motorists of your intentions. 


3.  GETTING "DOORED" - A driver or occupant of a parked vehicle opens their street-side door directly in the path of an oncoming cyclist.  


HOW TO AVOID IT:  Always ride at least 3 feet from parked cars, taking the lane if necessary.  If you can't take the lane, look ahead and try to spot any occupants inside vehicles who might "door" you.  In the winter-time or colder temperatures, keep a lookout for exhaust fumes.  They will alert you to someone who has just parked their care and might be exiting the vehicle.  It will also alert you to someone who may have just entered their vehicle and may be planning to pull suddenly out from a parked position.   


4.  GETTING "PARKING-LOTTED" - This happens when a motorist exits a driveway or parking lot directly into the path of an oncoming bicyclist.

HOW TO AVOID IT:  According to Bicycling.com, no bike-handling tricks can overcome the dangers of riding on a road with numerous parking lot exits.  It is suggested that you simply take an alternate route with less parking lots or side streets.  If you can't avoid your route, always obey the traffic laws, slow down near intersecting parking lots and side streets, and ride fully in your lane.  Most important, stay off the sidewalks because motorists are not looking for you there.


5.  THE OVERTAKING - A motorist hits a cyclist from behind.


HOW TO AVOID IT:  Make yourself as visible as possible by using reflectors and lights on your bike at night.  Wear clothing with hi-vis colors during the daytime.  Ride predictably by signaling your turns and avoid swerving.  You may also consider a rear-view mirror to help observe cars approaching from the rear.  Avoid headphones, too.  Because, if you're wearing headphones, you are certain to have no notice of that oncoming vehicle.  


While you wait for the Spring, please be safe out there.  And, thanks for reading.



Matthew F. Dolfi, Esquire

Dolfi Law PC
BNY Mellon Center
500 Grant Street, Suite 2900
Pittsburgh, Pennsylvania 15219
412-227-9724

Website:
www.dolfilawpc.com

Facebook page:
https://www.facebook.com/PghBikeLawyer


Important notice:
The information provided in this blog article is not legal advice.  The information and opinions provided herein are solely for the general interest of the visitors to this website.  The information contained herein is only applicable to general principles of law in Pennsylvania and may not reflect current legal developments or statutory changes in various other jurisdictions.  Therefore, the information and opinions contained in this blog should not be relied upon or interpreted as legal advice.  No aspect of this blog article should be interpreted as establishing an attorney-client relationship between the reader and its author.  Anyone reviewing this article should not act upon any information contained herein without first seeking the advice of legal counsel.  
 

Search terms: Bicycle accident cases and lawsuits, Bicycle collisions, Bicycle safety, Bike accident lawsuits, Bike accidents, Bike collisions, Risks for bicycle riders, accident attorney, accident lawyer, bicycle, bicycle accident laws, bicycle accident, bicycle accident attorney, bicycle risks, bicycle safety, bike accident, cycling, defective road conditions, dangerous roads, dangerous streets, Pittsburgh, Pennsylvania, Matthew F. Dolfi, Matt Dolfi, Pittsburgh Bike Lawyer, Pittsburgh Bike Accident, lawyer-cyclist, The Lawyer Cyclist, dolfilaw, Dolfi Law PC

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