Uphill battle

March 7, 2019 § 19 Comments

A jury in Fresno last month awarded two cyclists just under $400,000 for injuries they sustained when they crashed in a bike lane covered with sand and gravel. The jury agreed with the cyclists that the county had a duty to maintain the bike lanes, and that their failure to do so had caused the cyclists to fall.

Photographs showed sand up to seven inches deep, and a massive, 10-foot swath of sand covering the bike lane. The sand ran along the bike path for as much as 100 feet at a stretch.

On the one hand this counts for a victory, since Fresno County will certainly take the condition of its bike lanes a bit more seriously. From another vantage point, though, it illustrates the incredible challenges that cyclists face simply in order to use the public roads.

Bike infrastructure?

There is a lot of debate on the utility of bike lanes. Most people, without analysis, think they are good things, a kind of magical zone created by a stripe of paint that makes cycling safer and that encourages more people to ride.

A minority view, and one I agree with, is that cyclists are safest when treated as normal road users who follow the rules of the road, riding in the lane, without the fake protection of green paint, white lines, or walled-off “protected” bike lanes that are often anything but.

Regardless of which view you espouse, the Fresno case perfectly illustrates why bike infrastructure is far from a panacea, and in many cases is a kind of trap for cyclists, wary or not.

In the Fresno case, if the roadway had been pockmarked with, say, 10′ x 5′ chug holes, no one would doubt that the county had been derelict in its duty to maintain the roadway in a safe condition because such conditions would be obviously hazardous … to cars. But a bike lane covered with sand was only considered a hazard when two people were seriously injured, even though sand is much more deadly to the average cyclist on road tires than a pothole is to the driver of a car.

The point is that “bike infrastructure” takes much more maintenance than if bikes simply rode in the traffic lane, which is almost always in better condition than the adjacent bike lane for two simple reasons. One, it’s used by cars and cars get preferential treatment and therefore better maintained pavement, and two, bike lanes are off to the side of the travel lane and become receptacles for garbage and detritus in the roadway that gets kicked over, blown over, and tossed out by cars.

Anyone who regularly uses any bike lane knows that it’s only a matter of time before you’ll have to go out into the travel lane to avoid a hazard, or because the bike lane abruptly comes to an end. And of course venturing out of the bike lane becomes doubly hazardous because the traffic doesn’t expect you to ever leave your white-striped baby crib.

Fighting the king

When a cyclist gets hurt because the city, county, or state has failed to maintain the roadway and has allowed a dangerous condition to exist, the cyclist has an extremely hard fight on his hands to hold the governmental entity accountable. This is because the laws are written so that it’s comparatively much harder to sue the king than to sue his subjects.

In addition to a strict 6-month claims filing deadline, which if you miss almost always will kill your case, you also have to prove that the county knew or should have known about the dangerous condition. In the Fresno case that was a much lower hurdle because county employees used the road daily and the sand in the bike lane was massive.

But in many cases the dangerous condition is something as small as a crack that is merely a bit wider than the 25mm bike tire width; and although maintenance crews are often aware of these cracks, they may neither report nor repair them because they are too small to cause a problem for a car. In other words, juries are sympathetic to giant pot holes but they can be much less so when it comes to evaluating a crack that is only 30 or 40mm wide.

There are a host of other procedural and legal barriers that you have to overcome to hold the city or county liable for their negligence, and on top of that you have to deal with stereotypes and prejudice, the type that defense lawyers love to trot out in a horrific game of victim blaming.

Victim blaming par excellence

In the Fresno case, the county’s attorney tried to poison the jury by telling them that cycling was inherently dangerous. However, defense lawyer David Overstreet’s justification for the cyclists’s injuries was like the ranting of an insane person. “This is not bicycling like maybe you did when you were a child. These are expensive bikes. These are different kinds of cycling that most of us have never done.”

Can you even begin to unpack this gibberish? I can.

  1. This is not really bicycling. So any positive association you had with bikes as a child is irrelevant. Hate them.
  2. Because the bikes cost a lot, the riders are rich. They don’t need the money. They are greedy. Hate them.
  3. Road cycling is different and weird. They dress funny and go fast, so they deserve to ride on unmaintained, hazardous bike lanes. Hate them.

Overstreet also suggested that the cyclists deserved to fall because they were riding close together. In other words, if they had been more spaced out, perhaps they wouldn’t have fallen when their tires hit the seven-inch-deep sand trap.


Double standard

Here in the South Bay we have a notorious stretch of road on Vista del Mar that is horribly cracked and torn up, and has been for years. in both directions. The times I have emailed the city with photos, they have either denied that the cracks exist or have remedied only the biggest ones, i.e. the cracks that could affect a car or a motorcycle. The plethora of smaller hazards, all of which are potentially lethal to a cyclist, have never been repaired.

I’ve successfully sued the city on behalf of a cyclist injured on Vista del Mar, but it led to only modest repairs in the immediate vicinity of the collision. In other cases that I’ve successfully litigated against cities for failure to maintain the roadway, there rarely seems to be fundamental change to the effect that engineers and maintenance crews realize that roads need to be safe for bikes as well as cars.

Kudos to attorney Doug Gordon for taking on a hard case in a hostile jurisdiction, and helping his clients get some modest compensation for what they suffered.

I wish I could say there’ll be no more cases like that. But with more and more people pushing bike infrastructure as the next holy safety grail, I know there will be.



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§ 19 Responses to Uphill battle

  • RobertN says:

    Thanks for the post. We just had a long email thread on our club list about reporting bicycle hazards, from long cracks to pavement heaves to signals that do not detect cyclists that we CalTrans will not fix right away. (The work-around is to run a red light!). Most recently I went over the handlebars (but was OK) after going over some pavement heaves from aggressive roots, and the city of Cupertino did cone of that section of bike lane for repairs the very next morning after I reported it. Locally we have fairly responsive cities (and county), and a well enough known history of expensive negligence cases.

    Sure, bike lanes are not perfect, but when I commute at 14-16 mph on the convenient, direct route, even I don’t want to spend 3 miles sharing the lane on a 35 mph street. Bike lanes can be improved with adequate street sweeping, maintenance, completeness, 24-7 parking restrictions, and adequate width. If our goal is just safe lane sharing on auto-centric infrastructure, then the only people left cycling every day will be (correctly?) seen as the lunatic fringe.

    • fsethd says:

      We can disagree about whether people who want to exercise their rights, ride normally, and be treated as traffic are lunatics, but what’s clear is that bike infrastructure comes with maintenance responsibilities and costs that few cities/counties are willing to meet. This leaves us with deteriorated, inferior “infrastructure” that endangers our lives and hardly encourages more cycling. If the lanes were treated with the same respect that the travel lanes are, it might be different. But there is no mechanism for that to happen, largely because once the cyclist gets shunted off onto the side of the road she no longer becomes an issue that motorists have to deal with, and by deal with I mean slow down, take note of, avoid, respect, etc. The take-home from the case in Fresno is that these lawsuits are frightfully hard, expensive to wage, and generally stacked against the cyclist. The fact that the bad maintenance was so egregious likely made the difference. Note that there were no analogous maintenance issues in the travel lane adjacent to the bike lane. Why?

      • Serge Issakov says:


        There are two reasonable responses to this reality.

        1) Figure out how to make the cities and counties willing to meet those responsibilities, which of course increase with the amount of bike infrastructure being built, OR
        2) Look to other approaches to make bicycling more enticing, popular and safe.

        There is much to be said for #2 besides the maintenance responsibilities and costs of #1.

  • Anonymous says:

    One important fact gets lost in this discussion: Our safety as road users– drivers or when bicycling– relies heavily on the habits we develop as we progress as operators.
    That’s why we have Vehicle Codes, to reinforce consistency of behavior, to help us all be predictable, and to underscore respect for other road users. Simple as that.
    Bicycle “infra” short circuits consistent behavior. It introduces “innovative” ways of using public space, it complicates movement for all users, slows us all down, frustrates many. And it encourages entitlement thinking and entitlement behavior, eroding, not nurturing safe habits.
    All in the name of social engineering.
    Never let paint do your thinking for you!

    • fsethd says:

      People often don’t appreciate how differently bike lanes get treated until they wind up in the ER. Things that would never pass muster in a travel lane are business-as-usual for many, many, bike lanes.

  • M Barraclough says:

    You won’t find me in the bikes lanes or FTR when there are parked cars on the Westside. Unless I’m with my beach cruiser buddy, you’ll never see me on the MDR bike path, either (plenty of folks go down because of tree roots). My personal experience is that riding FTR or in the bike lane – especially near parked cars – is literally the most unsafe thing I can do on a bike. While I may have forgotten someone, I can think of only one friend who went down while riding center of the lane, but I can name more than 10 who have suffered catastrophic injury and death while riding FTR. #cvc21202a3

  • fsethd says:

    From a reader whose company doesn’t like him posting to blogs during work hours:

    “I’m quite thankful for the complete redo of stretch of Imperial Highway in El Segundo. Was previously a death trap headed west but now is nice. I’m curious though as to what spurred the rework. Any advice to find out who and what spurred them to repair the street, including bike lane? That might expose an effective strategy.

    “And beach paths get quite sandy, but that’s an inherent risk. Read ‘beach path’ https://www.strava.com/activities/2159323249

  • flehnerz says:

    Great post and great topic, Seth!
    Admittedly a lot of us don’t know the details of this subject.

    I think in general, reporting any and all safety issues to the government who owns them is the least we can do. Whether they do anything is a whole other issue but at least we tried and the governments can’t claim someone didn’t inform them. Take good photos, provide accurate lat/longs (or pins on Google Maps) and save any and all emails or other correspondence. Get local politicians involved if needed.

    • fsethd says:

      The reason that reporting is so important is that it creates a record that the city or county was on notice of the dangerous condition. Therefore if someone gets hurt it makes it much easier for them to prove negligence and win the case. Unfortunately, this is remedial and reactive, and as we know litigation is a poor tool for creating safe environments, because it requires someone to first get badly injured. But it is all we have given the dysfunctional nature of a state that is driven by business interests and corporate profits to the detriment of individual citizens, including bicyclists, consumers, and ordinary users of the roads.

  • Edwin S. says:

    Any thoughts on how all this relates to plowing snow for those of us in colder climates? Here in Washington we’ve had snow for the past month or so sticking around and the bike lane on my ride to work is usually more or less full of snow, either because it was plowed there or because no cars have driven on it. The snow condition varies from freshly fallen powder that you can ride road tires through to gnarly iced up junk. Is snow a special circumstance or is it equivalent to sand, cracks, etc.? Let’s say this is a day or two after it finishes snowing and the plowing for that storm is finished.

    • fsethd says:

      I don’t know anything about Washington law. In California, if there is a dangerous condition in/on the roadway, and if the city has notice of it, they are liable for resulting injuries. Clearly the city can’t be held liable for snow or rain, but whether they have a duty to make sure the bike lane is safe after they have plowed the travel lanes in the road is something I don’t know. Nor do I know their liability for plowing the snow off the street and piling it into the bike lane off the top of my head …

  • Vlad Luskin says:

    Dammit, Seth, I wish that just occasionally you would right about less controversial subjects. Helmet use, for example…

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