The enemy among us

March 28, 2015 § 59 Comments

[An earlier version of this post incorrectly attributed the quote below to Patrick Brady, when in fact it was written by someone else and posted as a guest editorial on Red Kite Prayer, Patrick’s blog. I’ve corrected the mistaken attribution and edited the post accordingly.]

Some people never cease to amaze me. Even so, I was amazed to read this editorial posted on Patrick Brady’s blog, Red Kite Bore. The author thinks that a helmet law in California isn’t worth opposing. Whaaaaaat?

According to the author:

Bike advocate groups might consider what others see when they see us. They see people who run stop signs, weave in and out of traffic, ride in packs, take up a lane, and so on. It’s not a pretty picture. Sure, most of us are wearing helmets as we bend rules and traffic laws, but that’s not what the pissed off drivers see. So when they hear cyclists are opposed to a helmet law, it only furthers their belief that we are selfish, unpredictable and dangerous. Maybe we let this one go. Let the lawmakers and drivers have this one without resistance. We got our 3-foot law in California, we can put up with a helmet law on the books. Pick your battles as they say. This is one fight we can easily walk away from.

Presumably, the editorial is endorsed by Patrick and RKP, as it fits hand-in-glove with the kind of writing for which RKP is infamous. And this one is a real howler, especially the last two sentences, as if Patrick or RKP has ever picked a fight with anyone, anywhere, for the benefit of cyclists. In all of the advocacy I’ve been involved in, I’ve never seen Patrick show up for anything, even when there was free beer and pizza. Never seen him at a council meeting, never seen him on a “Take the Lane” protest ride down PCH, nothing, zip, nada.

So to hear the guy who gave rave reviews to the latest Bell helmet put up a guest post supporting the helmet law speaks volumes. Unfortunately, the author, Mike Hotten, is a friend and an accomplished cyclist. But he’s completely wrong when he thinks that the solution is to “let this one pass.”

But what’s most reprehensible is the description of cyclists and by implication himself as someone who is a complete asshole on the bike. While I wholeheartedly agree that his description fits Patrick, it hardly describes most riders who in terms of numbers are simply people using a bike to get from point A to point B. Even worse is the rationale: People hate us, so let them force us to wear helmets because if we oppose the helmet law they’ll hate us even more. Glad that RKP wasn’t selected to fight for a seat at a lunch counter in Alabama back in the 60’s.

Patrick and the RKP forum are as far from zealous cycling advocacy as it gets. He has zero racing cred, belongs to no club or racing team that I’m aware of, and has never shown his face at any local bike race I’ve ever attended even though he kits out in the fanciest stuff and yet pretends to be a commentator on bike racing. He’s the same guy who gave a descending clinic to new riders at the defunct PV Bicycle Center, and a year later crashed very badly descending Las Flores when he hit a rock or slid out or just fredded his way off into a ditch. Yeah, that Patrick Brady.

My personal experiences with Patrick have been that he is  condescending to  riders who are wearing the wrong stuff, riding the wrong stuff, or don’t know the secret handshake. Of course he’s also the first guy to get shelled when we start climbing, or to get shelled in a hard paceline, is as tough as an under-baked cupcake, and is referred to as “Nancy” behind his back. When people talk about the cliquish, condescending, snooty attitude of road cyclists, the epitome of that stereotype is Patrick Brady.

For this clown’s publication to tell us we should roll over and accept a bad law because they’re too lazy to do anything about it is pathetic. The real problem is properly analyzed by Bike Snob, and it’s analyzed well. Try not to giggle too much at the photos he posted of Patrick as he models his aero goon helmet with the go-faux-pro Assos jersey.

As for the 3-foot law, the article says “we.” I’d love to hear about Patrick’s and RKP’s  particular role in that legislation. And while they’re at it, show us some statistics to demonstrate it’s had any effect on collisions or deaths, any at all.

In short, the helmet law sucks. You should oppose it. And don’t listen to Red Kite Bore when it comes to helmet laws when their sole means of subsistence is the sale of advertising space to people who make bike junk, not limited to helmets.



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§ 59 Responses to The enemy among us

  • Sandy says:

    Bravo Wank! Call it like it is.

  • Winemaker says:

    One of the letters to Snob said it well:
    Just need to advocate that the law be changed so that gun owners also have to wear helments when they are practicing. Then America will suddenly remember that it’s made of freedom and reject it (the bike helmet law) hastily.

  • cyclemeistro says:

    I’m from Canada and our helmet Law for youths, (under 18), just made sure that my teen girls would never ride to school again. It is not a law that improves kids health at all.

    • fsethd says:

      But it’s great for helmet manufacturers and for US municipal police forces to raise revenue.

  • dangerstu says:

    What a fracking idiot, but reading between the lines I can you have a soft spot for Mr bundy!

    • fsethd says:

      Super soft. Hey, great riding with you today! Someone let the air out of my legs somewhere on that first hill. Tell me we’re not really signed up for BWR.

      • DangerStu says:

        Likewise, and great to finally meet you. Yeah I started do my own ride at the 50 mark, but did the full route and happy I did.

        • fsethd says:

          I melted early on and pulled the plug before I found myself another hundred miles from the car.

  • jim says:

    If I’m reading the RKP article correctly it was written by Michael Hotten, not Brady.

  • channel_zero says:

    As mentioned elsewhere in your own site and Wildcat Rock Machine’s blog, the point is to protect drivers from liability.

    Every time a driver hits another cyclist, shifting liability to the cyclist is as simple as, “Was she wearing a helmet?”

    • fsethd says:

      Yes, it completely shifts the presumption. Even now, without a helmet law, not having a helmet is twisted by insurance companies to argue that the rider was somehow at fault, or to reduce the comparative negligence of the driver.

      BikeSnob has it right: the focus shouldn’t be changing the behavior of cyclists, but of cagers.

  • Tamar T. says:

    Jim (above) caught it first: The pro-helmet article on Red Kite Prayer is by Michael Hotten, not Patrick. Patrick runs a blog for a living and accept ads and review stuff what he does. I’m not offended by that.

    I am offended by any law mandating wearing helmets. I always wear one but it’s bullshit that they let cars run over bicyclists willy nilly and pretend to fix the problem by making us wear a helmet.

    • fsethd says:

      Yeah, I muffed that. It’s fixed.

      There’s no problem with helmets if you want to wear one. But the lack of helmets aren’t what’s killing and injuring riders. It’s negligent drivers. Fix that problem and the head injuries will plunge.

  • Bill Stone says:

    So Patrick does not wear SPY Happys? Seriously, a great post and you are so right. “What!” says the insurance attorney “you mean when you ran the cyclist into the ditch he was not ringing the statutory required bell and he became separated from this seat when the statute required him to stay seated until he stopped moving?” A clear case of cyclist causing his own paralysis.”

    Today helmets, tomorrow FLAGS as proposed in the great State of Texas, because FREEDOM>

    • fsethd says:

      He does not, and beatings will continue until purchases improve. Or, he can subscribe. No subscriber has ever been the target of an ugly screed. I am for sale, but like the honest politicians of yore, once bought, I stay bought.

  • Les.B. says:

    I like cycling. By “cycling” I mean getting on this 2-wheel contraption, putting my feet on the pedals and making a rotational motion that causes me to move forward, even if I’m on a 20+% grade.

    By cycling I very much do NOT mean hanging with people who will call me disparaging names behind my back, being subject to fashion police, being told how to ride or what activities I should engage to be considered a “cyclist”.

    In Europe they apparently don’t have helmet laws. CooI.

    Bet they also don’t have all this elitist kind of crap designed to make a person feel bad about her/himself when all s(he) wants to do is ride.

    • fsethd says:

      The vast majority of people just ride bikes. That’s all they do and it’s all they want to do. Most people who come into contact with traditional US-type road cycling are appalled at the nastiness, rudeness, and condescension to which they are subjected. And beneath all of this, the reason we have head injuries isn’t because riders don’t have to obey a helmet law. It’s because cars negligently smash them.

  • Ed krass says:

    “According to Patrick:”
    If this is the basis for your premise you may wish to reexamine.

  • sibex9591 says:

    So, is it the interpretation of the law, that this law is an answer to the problem that cyclists get hit by cars, or is it, that when cyclists suffer some kind of head trauma, be it from a car, interaction with another cyclist, running off the road, any number of other non-car reasons for an accident, that the head trauma might have been mitigated had that cyclist been wearing a helmet?

    Are we simply jumping to an unfair conclusion that the premise of this law gives into a acceptance that cyclists will get hit by cars, so let’s make them wear helmets, so they don’t get hurt as bad?

    Look, it seems it’s matter of numbers. In X number of cycling accidents that produced head trauma, that has cost that person money, any associated insurance company money, and potentially any potentially requires public assistance money, then had that person been wearing a helmet, how much money and suffering would it have saved? That certainly depends on the nature of the accident, but I think, that the numbers show, that for certain kinds of accidents, the outcomes would have been different had the person been wearing one.

    Even if you jump on your bike to run down to the local market, wouldn’t you want your helmet on? If you had to wear your helmet, you wouldn’t ride there?

    I do agree though that a law requiring you to wear it is probably the wrong approach. Why do we need to give the Police any more reasons to pull us over?

    • fsethd says:

      Helmets, good. Mostly.

      Helmet laws, bad. Completely.

      A helmet law shifts the focus to the cyclist’s headwear and removes it from the actions of the offending driver. Helmets also discourage ordinary people from riding bikes, people who ride much more slowly than “cyclists.”

      • Benbo says:

        Hi Seth,

        I agree that helmet laws are bad (I think), but I also know that a helmet saved me from more serious injury when I got hit on Rockstore a while back. My helmet broke in half, I only got a minor concussion… (plus $50K from suing the SOB who hit me…). Anyway, thanks for fighting the good fight.


        P.S. I think you pissed off T.O & V.C PD, they’re ticketing lots of cyclist for ANY rolling stop sign violations.

        P.P.S. I bought your book so (hopefully) I’m flame-poof…

        • fsethd says:

          Anyone who pays me money is flame-proof. I’m cheap and I stay bought.

          Agreed about helmets, especially for cyclists who go faster and ride in more dangerous situations than other people. My skull has been saved at least twice from horrific blows to the head.

          Saved for what, I’m not sure …

  • Peter Flax says:

    Whatever your position on the helmet situation might be, it’s a damn shame to see someone who is a sort of leader in the cycling community talking with that kind of venom. I think you’re capable of better.

    • fsethd says:

      I am capable of it, but some kinds of faux advocacy need to be called out for what they are. Too often we spare stupid, bad, harmful ideas because we know the person and don’t want to hurt their feelings.

      I work daily with people who get run over and who drivers try to blame when the driver is at fault. It’s already a grim landscape for cyclists to get compensation for their injuries when drivers hit them. This idea that we should ignore the bill is as repugnant as saying we should ignore legislation that discriminates against gays, that restricts the rights of certain people to vote, or that targets the weak and the poor.

      Why tiptoe around the awful consequences of terrible ideas espoused by people who are not on your side? Why pretend that RKP has your best interests at heart? It doesn’t.

      Perhaps a lower dose of vitriol would be better, though. Oh, well. Next time.

  • Toronto says:

    New this spring to the Lifetime Channel, a not-to-miss show ‘Blogger Wars.’

  • Mark says:

    gee, this topic gets people fired up.
    A whole lot of energy generated, panic, hate, flail, strange logic, angst, enemy within, conspiracies, statistics, it’s TRUE, teeth-nash, seat-belts good, seat-belt law bad.
    And btw defeating the helmet law is not going to make any cyclist safer. Lots of people will continue to get killed by people in cars. But having a helmet law is also not going to make any one safer. I know, I live in that country.
    I fucking hate cars. -see- I usually don’t get angry…

  • Alan says:

    Wow, that was F-ing awesome, and I signed the nay petition long before I read this. Is RKP a secret Velominati?

  • whodoneit says:

    Good article in NY Times about how irrational helmet use is, in many cases. I wear a helmet but take it off when I climb a long hill (like Palomar) in warm weather – and I take a lot of flack from my fellow cyclists. One guy suggested that a deer might run out of the forest and knock me over. Yeah, right.

    That said, I suggest we propose a helmet law for these much more dangerous activities: “Statistically, if we wear helmets for cycling, maybe we should wear helmets when we climb ladders or get into a bath, because there are lots more injuries during those activities.”

    NY Times Sept 29, 2012

    • fsethd says:

      Helmet law for cagers. Then sit back and watch the fireworks.

    • jim says:

      Mr. De Jong, who grew up in the Netherlands, observes of Amsterdam: “Nobody wears helmets, and bicycling is regarded as a completely normal, safe activity. You never hear that ‘helmet saved my life’ thing.”

      Well, duh. If nobody wears helmets of course you’re not going to hear about a helmet saving saving sombody’s ass, oops, head. Don’t get me wrong. I ride in a rural, very rural, area and always wear a helmet, not to protect me from cars but simply because shit happens. If a cager hits me, I’m toast so the helmet will just be one more thing to cremate. OTOH in the last 25 – 30 years I’ve gone down and hit my head twice, once on a high speed descent and once trying to jump a curb at 5 mph. One hit to the back of my head and one to the front. Both times I got up and walked away with no head injury. None. Not even a headache. How much did the helmet help? Definitely a question with no answer. At my age, 70, the goal is to keep cycling for as long as possible and that means staying in one piece so, yeah, I’ll wear a helmet. Every ride. But I have mixed feelings about MHL. There are good points on both sides of the debate. If helmet requirements keep folks from riding then the law needs to be flexible about helmet use. The more people biking, the better.

      • Tamar T. says:

        Could be that you don’t hear the “helmet saved my life” thing because Dutch cars watch out for cyclists and don’t run into them.
        Let’s stop debating whether helmets are good or safe; they are. The question is, should there be a law mandating their use?

  • Thomas Smith says:

    That people actually believe anything you write is the most laughable thing of all. And everything you’ve accused Patrick of in this article, you do yourself. With “friends” like you, who needs enemies?

    • fsethd says:

      Pretty sure this is addressed in the About section. And thanks for the props!

    • fsethd says:

      Oh, yeah, and could you explain to me again about what a good friend RKP is to California cyclists by advocating that we ignore this helmet law? Have you ever been hit by a driver in California and tried to prove liability to the insurance adjuster when you weren’t wearing a helmet? You know, that silly argument of “Yes, I hit the cyclist but it’s his fault because he wasn’t helmeted.” Have you ever heard that before? Did you know that it actually works?

      Now imagine, with RKP’s support, how much harder it’s going to be when you’re obligated by law to wear the helmet. Do you understand this? Violation of a statute imputes a degree of liability, up to 100%. So it can be your fault that you were hit because, unhelmeted. Neat, huh?

      So (I know it’s getting complicated!!) the guy in downtown LA who rides a bike to his job and who makes minimum wage gets clocked by a driver who was texting. Guess who’s fault it is that Mr. Unhelmeted Minimum Wage bicycle rider got hurt? (Hint: it will make you really happy if you’re an insurance adjuster.)

      So, although I only resort to facts in the last moments of desperation, I actually am not doing any of the things espoused by RKP. To the contrary, I’m trying to convince people to oppose the helmet law, whereas RKP is encouraging people to ignore it.

      See? I oppose it, he wants you to ignore it. Complicated, I know. Maybe next week I’ll draw a picture if you think that will help.

  • Seth,

    Per usual a lot more heat than light in your writing….

    The helmet thing raises a lot of tough questions. I know you’ll groan, but believe it or not they named me the executive director out here at MassBike in Boston.

    We have the Mass Medical lobby filing similar legislation here. My position is that we are not supportive of the bill AS presented. I would support such a helmet mandate with one caveat: That motorists also be required to wear helmets.

    Now THAT would sell a lot of helmets, eh? But that is not my point nor my objective…which is what you assigned unfairly to Patrick.

    My premise to have motorists wear helmets is probably drawing a chuckle from you and your tribe, which reflects that you all too are subject to the brainwashing of tens of billions of dollars in advertising that makes folks believe cars are safe.

    But the data (here comes the “light” part, Seth, so pay attention so your arguments might actually gather some support from mainstream voters) is entirely on the side of that argument.

    When we measure safety, we must never allow the medical folks to use the fatality rates “per vehicle miles traveled” argument. Given cyclists travel at about 14 mph (don’t worry, Seth, we’ll deal with your average speed soon…) and motorists move at upwards of 60 mph that is not a fair evaluation. Hence, we must compare both activities via time spent doing both.

    This is what we know. When measured as fatalities per million hours of activity this is we get:

    – Bicycling, .26
    – Driving, .47
    – Motorcycles, 8.80
    – Simply living has a fatality rate of 1.53 per million hours.

    Going to the bathroom, it turns out, is statistically more dangerous than bicycling. Hence, if we’re going to mandate helmet usage, the motorists should wear them too.

    With that said, I’m not clear as to whether or not Patrick can hang on your group rides – on which, frankly, I would ever wish to attend given the chaotic Cat 4 “strong and wrong” descriptions I’ve read – is germane to the discussion.

    I’m steadily filling our staff with racers who are also advocates. I just hired former pro Mike Dietrich to teach Safe Routes to School. Joining him will be U23 National CX champ Ellen Noble. And Tim Johnson – don’t worry, you won’t drop him – Christina Birch, and Ted King are all in the same camp that Patrick Brady is representing….

    It’s a simple principle: it does not do cycling any good to be obnoxious on the road. Seth, from what I’ve read about your road behavior you would be thrown off any pro team after one ride.

    As somebody who went through this Boston winter without missing a single day’s commute, I would invite you to come east – if you can afford the plane ticket – to ride with myself, Tim and others for a day. Mind you, we wear shoe covers not as a fashion statement but as a necessity.

    After the ride, maybe over a beer when you’ve calmed down from all the potholes, we’ll talk about about real bike advocacy….

    Don’t worry, I’ll have Ellen go easy on you….


    Richard Fries

    • fsethd says:

      Hi, Richard. I think you’ve mis-read my blog. That’s okay. I’ll repeat it. 1) I’m a hacker. 2) I’m a lousy rider. 3) I wouldn’t have made it on a pro team of any sort 30 years ago, much less one today. Unless they needed an anti-helmet law blogger, in which case I’m their guy.

      So, this has nothing to do with whether I’m a good rider or a bad one, unless you’re coming from the angle (and I don’t think you are) that even guys like me deserve to get hit by cars.

      And taking the easiest swings first, I’ve ridden for 10 winters in northern Japan, so although I don’t have any cold weather clothing since moving to California, I know well what’s involved in cold weather riding. I’ve also commuted for several years in urban LA, and due to incredible luck (and sitting smack in the lane) I’ve never been hit. Again, not sure what cold weather chops in Boston have to do with a helmet law in CA, but you thought it important enough to bring up and I didn’t want to ignore it.

      Now, I appreciate your description of my writing as more heat than light. I think it’s a good one, and it seems that you’ve actually read the About section which pretty forthrightly says as much, though not as cleverly. That knock is now hopefully off the table.

      Before moving onto the entree, let’s review:
      1. This is an opinion blog, not a factual journalistic endeavor, so factual errors (and typos) are the property of the finder, although when they’re germane I will try to correct them.
      2. I’m the biggest goof on a bike you’ll likely meet and make no apologies for it, cf. my blog moniker. There are more goofballs like me than there are Sagans or Ted Kings.
      3. Just because you choose to ride in cold weather doesn’t mean that you’re better or that you have better arguments. It just means that you ride in colder weather.


      So that leaves us with your position: You support a helmet law if it’s applied to motorists as well. And your reason for doing so is that motoring is statistically more dangerous than bicycling, so what’s good for the goose is good for the gander.

      That’s not why I oppose the helmet law, Richard. I oppose it because it shifts the presumption of liability from the driver to the rider, and the prejudice that the rider is in the wrong is already very strong and in some cases insurmountable even when there is no evidence that the rider was at fault. With statutory cover for cagers (he wasn’t helmeted so it’s his fault I hit him) riders in California have an already uphill battle turned into a fight between pea-shooters on the one hand and tactical nukes on the other.

      No helmet = No liability for the cager. Have a nice day!

      Anything that makes it harder for cyclists to get criminal or civil justice against motorists, I oppose. And blandly telling riders they should “let this one go” as advocated by RKP is profoundly wrong and harmful. It will deprive injured bicycle riders of the money they require to pay for their smashed bodies, catastrophically altered lives, and obliterated bicycles. If you think that tort reform has made America a better place with better affordable health insurance for all, you will absolutely love what statutory helmet liability does to bike riders who get whacked.

      Moving right along, your position is also disingenuous. You say that you support biker helmets if motorists must wear them, too, knowing that this is absurd from a policy perspective and without presenting any evidence that helmets are appropriate for motorists.

      Throwing up impossible alternatives is the clearest example of bad faith on your part, and those who support helmet laws for cyclists recognize it when they see it. If you’ve ever been in a negotiation or mediation and started out saying “I will accept your position as long as you suck my dick first,” you will understand that these types of disingenuous openings that require the other side to walk out of the room in a rage never, ever, ever work. Unless, of course, you’re hung like a whale and the other party is so inclined. Better for you to oppose helmet laws for a much simpler and much more honest reason: The biggest threat to cyclists isn’t bare heads, it’s negligent drivers.

      Once people in California can no longer kill a cyclist while texting and get a misdemeanor slap on the wrist, once liability policies are 10 times the minimum $15k required to drive a car here, and once UM policies provide six-figure coverage as a minimum, then perhaps we can look at whether mandatory helmets are a good thing or not.

      The whole Patrick thing is part and parcel of people who claim to advocate for riders but in fact do not — either in fact or in theory. They’re not on the ground, they’re not at the council meetings, they certainly aren’t grass roots activists, they’re just self-interested business people typing up ideas to charm, enrapture, and encourage a readership that will attract advertising dollars.

      Which is fine, but they should be identified for what they are, and should not be used as a springboard or accorded gravitas when they support terrible laws that will hurt bicyclists.

      You say that obnoxiousness helps no one. But it often does. Lying down and taking abuse, or accepting a terrible law because we “got a good one last year” is less effective than yelling, hollering, cursing, drooling, and tossing f-bombs, things at which I am all expert, especially the drooling part. Why? Because if you roll over you’re absolutely going to lose. There is even a maxim I once read about wheels and grease, but I don’t recall the details as I rarely work on my own bike except to air up the tires and wipe smudges off the full carbon wheelset I bought last year made of carbon, which is full carbon.

      What’s more important, it’s not illegal to be obnoxious, and the penalty for being that way shouldn’t be having a terribly harmful law shoved down your throat. What about the cager who flipped us off and buzzed us this morning on our group ride? Do you think he should have to wear a helmet because he’s a jerk? And being an obnoxious ass is my right. Why should I have to smile politely at the Delta Bravo trying to kill me? Why can’t I curse and scream and flip him off? Since when did nicey-nice become a requirement for bicycle riding in face of nasty, murderous cagers?

      To put it in perspective, Richard, one of the happiest moments in my cycling career was back in 1985 when a punk cursed us, threw a bottle at us, and ran us into the ditch on his way to school, and Rick the Rocket and Spanky and I chased him down (he’d pulled over at the convenience store up the street, so he wasn’t very smart), threw him onto the hood of his car and pounded his face in.

      That was obnoxious, but man it felt good! The sound of his skull smacking against the steel was awesome! The feel of our fists smashing into the soft meat of his face was even more awesome! The terror in his eyes as he realized that we weren’t skinny little girls but angry grown men! He had obnoxiously tried to kill us, and we obnoxiously beat his face in! Gives me a warm fuzzy glow just thinking about it …

      So, obnoxiousness does have its place, and just so you know, the car who flipped us off and tried to kill us this morning really should have pulled over because we had in our midst a cop who was fully prepared to be obnoxious in any resulting confrontation.

      I do appreciate the offer of a beer. However, I’m a hopeless drunk who has been sober now since last November and I don’t intend to fall off the wagon over a blog dispute. If hookers were involved, maybe.

      I have a list of rides posted on the left side of my blog. Some are challenging, all are fun. Hit me up when you’re out here next, and I’ll do the same if I ever make it out to Boston for a fun pedal in the sub-zero slush. My email is Patrick probably won’t be on the ride, though.

      • Mark says:

        Both of you are against the proposed helmet law yet engage in a dick-swinging competition.
        All cyclists have the frustration of continually seeing drivers kill with little or no penalty. We get to experience that “close call” on a regular basis. And know deep down that in all probability a friend is going to get a car up the ass eventually.

        “The biggest threat to cyclists isn’t bare heads, it’s negligent drivers.” YES

        I’m actually for helmet laws. 100%. It is the right way to go. Why does it “shift the presumption of liability” to you because you want to increase your chances? Change is difficult in a conservative society, grow-up.

        But it addresses a very tiny tiny part of the problem.
        “The biggest threat to cyclists isn’t bare heads, it’s negligent drivers.”

        • fsethd says:

          Mark, no, we aren’t. One of us opposes it, the other one says we should let the law pass. Read the blog post.

          In California, violation of a statute affects what is known as liability. When a motorist is cited, for example, for unsafe lane change as he takes you out, and you are cited for not wearing your helmet, the jury gets to assign comparative fault.

          Given the prejudice against cyclists even without this law, look for 90% cyclist, 10% driver. Or, if your client is a real scruffy looking minimum wage person who got hit on the way to work and is now a quadriplegic, maybe they assign 100% of the fault to him.

          This is not theoretical or academic, it is real. Even without the law riders are generally assumed to be at fault unless they can prove otherwise.

          Many no-witness cases where the cyclist is killed or hurt so badly he doesn’t remember simply take the cager’s word for it. “The cyclist ran the red light.”

          Case closed. On your neck.

    • Matt Smith says:

      I’d like to ride with Tim. That would be nice, as he’s my cx hero. Can I come?

  • Les.B. says:

    Realizing you have a special perspective, being an atty.

    I was not on to the fact that in an accident, if a party was breaking a law that had nothing to do with causing the accident, then that still bends fault in their direction. I never heard of that and I think most people are unaware. It was not that way in the Perry Mason episodes I watched.

    So, the basic problem is the system. Assignment of fault should be based on what parties did to CAUSE the accident, irregardless (I happen to like the word) of what laws were being broken. Since that is not the case, the system is so screwed up, I would think it crazy hard to ever get a fair judgement in any case involving liability.

    Car A crosses over the double line and heads-on Car B killing everybody and destroying both cars, a billboard and a trattoria.
    Car A broke ONE law.
    Car B 1-Had a burnt tail light. 2-Smog check overdue. 3-Missing rear license plate. 4-Had a decal in the wrong corner of the rear windshield.
    Car B broke numerous laws.

    So the insurance company for Car B pays all the expenses. That’s how I understand our system as it is now.

    • fsethd says:

      It’s not quite like that. In the car-on-bike scenario there is already a common presumption — let’s call it a stereotype — that it’s the cyclist’s fault. So when you get hit by a car you have to establish fault (liability). If there’s any ambiguity fault is usually ascribed to the cyclist.

      In the current scheme, if you are a cyclist and you are not wearing a helmet and you get hurt, if your case goes to a jury the defense will try to argue that you are partially liable for your own injuries because you didn’t wear a helmet. You contributed to your injuries and were comparatively negligent.

      Your attorney will work strenuously to keep that evidence out of the trial because we know that it is irrelevant and prejudicial to the jury.

      When there is a statute that requires you wear a helmet the fact that you didn’t have a helmet will come into evidence. The defense will use that to massage the existing prejudice that juries have against bicycle riders, and you will see your damages reduced, perhaps completely.

      Statutory violations, unless the law is written to exclude them as evidence, will be entered into evidence against you as proof that you are partially to blame.

      With the car example, no jury will believe that your failure to have a smog check was a factor in your injury. But the jury will believe that your failure to wear a helmet was a cause of your damage — perhaps all of it — and will punish you for it.

      It’s the same reaction juries have when you tell them that you got hit on your motorcycle on the freeway. Their reaction is, “No shit. You were on a motorcycle on the freeway. It’s your fault.” They will not focus on the driver.

      The danger to cyclists is not bare heads. It is negligent drivers.

      • Les.B. says:

        In that jury trial if the cyclist’s injury is a broken toe, I don’t think a jury would consider the cyclist contributory to the injury. However if the cyclist’s injury was a bashed head and he was not wearing a helmet and I was on the jury I would need compelling evidence to the contrary to not consider the cyclist complicit in his injury.
        As for the stereotype issue, that’s America. Or probably, human nature. And it’s a sad thing we have to fight that. Gives us white guys like me the chance to see how the black folks feel.

        • fsethd says:

          The toe injury case would not make it to the jury.

          The problem with helmets is that although you and I wear them, the evidence is pretty clear that in certain cases they exacerbate injury. So you would either end up penalizing some victims twice — once by running them over, twice by blaming them for it.

          Bringing helmets into the issue of liability as a matter of law will hurt cyclists.

  • Ronaldo Moon says:

    Seriously, WM is taking on all comers on this one. I think presumption of liability deserves its own Wankmeister Internet School of Law post because too many folks are missing the point still. Plenty of light to go with the heat on this one…time to pony up my $2.99 because this thread earned it.

  • Tamar T. says:

    Seth touched on this but let me do so more emphatically. This is will give the police an excuse to pull over cyclists who are otherwise law abiding. I have handled numerous criminal cases where the pretext for the initial stop was riding while on the cell phone, riding without a light at nights, riding with ear buds in both ears. Add this to the list.
    And yes, I already wear a helmet!

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