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.
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.
- This is not really bicycling. So any positive association you had with bikes as a child is irrelevant. Hate them.
- Because the bikes cost a lot, the riders are rich. They don’t need the money. They are greedy. Hate them.
- 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.
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.