How to get yourself sued

Last year there was a great controversy about bike infrastructure planned by the city of Encinitas, CA. A cycling advocate had been catastrophically injured, bike-car collisions up and down the coast highway were occurring, near-misses were a fact of life, and cyclist use of this roadway was massive and growing.

Instead of doing what made sense, i.e. lowering and aggressively enforcing speed limits to 30 or less, and aggressively educating/signing cyclists that they should occupy the full lane, the city chose to do what non-cyclists love best: Build a better bike lane.

Unlike many such bad plans, this one was vociferously opposed by a wide range of riders. One of the lead opponents was Serge Issakov, an engineer and a bicycle rider and somebody I completely disagree with about a lot of things, most especially his annoying tendency to put two spaces after a period. It’s 2020, Serge. You’re not using a typewriter anymore. Oh, wait …

So I may disagree with him about a lot of things, BUT NOT THIS. Serge addressed the city’s plan last year in an email to his club and publicly opposed the council’s plan.

In the latest newsletter from Encinitas Mayor Blakespear she devotes the most space to  describing, and seeking support for, the proposed Cardiff bikeway project, which is attached below. I’m leaving out  information about who forwarded it to me. You know who you are: thank you. What follows before the forwarded newsletter excerpt are my personal comments which do not necessarily reflect the position of any other persons or organizations with which I’m affiliated. If you have not yet already, please let me know where you stand on the proposed project, especially after reading what follows. If you write to the council, in support or opposition, please Cc or Bcc me. Feel free to forward this to anyone you think might care. As the debate over the proposed $400k project to reconfigure Highway 101 south of Chesterfield Drive continues, the mayor keeps learning and refining her words accordingly and very carefully. I think her summary description of the proposal below, and why she believes it should go forward and be supported, is fairly presented, genuine, and not misleading. If only all politicians I disagreed with on some issues with were this good. The hardest part about opposing this project for me is having to publicly disagree with the mayor and council members who I admire and respect. But here we are. As I’ve said before I believe this is a well-intentioned but misguided project. The mayor  acknowledges the opposition she is concerned with, but seems to dismiss us as being 0.5% of the population that commutes by bike rather than 99% of those who ride through Cardiff, ride a lot, and therefore have the experience to know this is not a good idea in this particular location. Not just for “us”, but not a good idea for anyone. 
To be fair, there is opposition to this project among some cyclists. For 0.5% of the population, the current road striping – paint with no physical separation – works for them to feel comfortable biking to work. There is also a sizable active sport cycling community and a number of dedicated bicycle road commuters who thoroughly enjoy this section of road. Some of those in opposition live elsewhere and travel through Encinitas on weekends. Many consider this open section of roadway through Cardiff to be one of the nicest in the county. I also think this statement reveals the real motive:

And the typical road infrastructure of painted bike lanes next to speeding traffic doesn’t make us feel safe enough to choose to ride a bike, especially with a child on board. 

Okay. I get that. But I disagree the only way to get more people biking for utility is to reconfigure all major roadways to have “protected” bikeways, especially if that means discouraging road cycling like this project does. Such bikeways might be a measurable factor in increasing bike usage in some urban contexts, but they’re not a necessary nor sufficient condition in most. Certainly not feeling safe is a factor, but why people choose personal motoring over biking, despite what they may say in surveys, has much more to do with economics, geography, terrain, average trip distances, available inexpensive or free parking, etc. After all, most of us who do ride on the roads got over the innate and natural fears by gaining certain skills and knowledge which are attainable to anyone who has basic bicycling and driving skills. It’s also quite possible that over-emphasizing the supposed necessity of physical separation for safety, which such projects arguably do, exacerbates the very fears that inhibit cycling, and makes them even harder to overcome. Imagine what we could accomplish by emphasizing the joys, safety and benefits of cycling rather than fomenting the fears!

But the main point is that all up and down the coast, wherever people have the choice to ride on the roads or on an adjacent physically separated bikeway, including those riding for utility/transportation  rather than for sport or recreation, the road is chosen by the vast majority of people on bikes. This is true in Solana Beach, where a rail trail is available next to the 101 the entire length on the east side, portions of Encinitas including the new rail trail north of Chesterfield, further north in Carlsbad, etc. We can all speculate on the exact reasons people have these preferences for road riding, and I certainly have my theories, not the least of which is that on roads there is plenty of space to avoid obstacles, pass slower cyclists, etc., but there is no denying that they do, and great folly to ignore it. And by removing an extremely popular traditional class 2 bikeway to make room for a separated class 4 bikeway, thus leaving most people two far less appealing alternatives — sharing a  traffic lane with 50 mph cars or sharing a narrow bikeway with pedestrians, obstacles, and slower cyclists, from which there is no escape — is doing exactly that. Studies of the effects of  Class 4 bikeways in an urban setting with an adjacent sidewalk, and often with an adjacent roadway with typical urban street speeds, much slower than the 50 mph speeds on 101 in Cardiff, are not applicable to this popular beach location with no sidewalks.

The self-interested response to this project from me is fine, since I’m personally fine with using the full lane.  Thinking about my club I’m good with the sharrows, because that’s how our board voted, and it’s probably acceptable to most of our members.

But it’s thinking of the vast majority not comfortable with riding in a traffic lane with 50 mph traffic that causes me to remain opposed.  Relegating them to this narrow space from which there is no escape to avoid obstacles, surf boards, coolers, strollers, joggers, pedestrians, slower cyclists, etc, is just not right.

Those are my thoughts.  What are yours?  Will you let the council know?
To borrow (modified in caps) from the mayor:

If you DON’T like the proposed idea, please consider writing AN EMAIL IN OPPOSITION  to the City Council at council@encinitasca.gov AND/or speaking IN OPPOSITION at the City Council meeting where it will be discussed on September 25 at 6 p.m. Every voice matters!

Again, please forward as you see fit. 
Thanks,Serge 

Public email, Sep. 15, 2019

I ride in North County San Diego several times a year, and the coast highway can be awesome very early or harrowing very late. So I took Serge up on his invitation and sent out the following email to the city council.

Dear City Council,

I ride in Encinitas/Cardiff several times a year and represent injured clients in North County as well as other San Diego jurisdictions. I have over 40 years’ experience as a cyclist, and close to that as a bike racer. My legal practice represents injured cyclists almost exclusively.

I concur with Serge’s email wholeheartedly and urge you to forego the separated bikeway project for Cardiff. The project will result in more injured cyclists, pedestrians, and more collisions. We have a similar project in Hermosa Beach and it has been a complete failure in terms of enhancing cyclist safety.

Sincerely,

Seth Davidson

Email to City Council of Encinitas, Sep. 18, 2019

When Encinitas got around to implementing its project, it did so by first installing the barriers and not bothering to mark them. The result? At least seven cyclists in an incredibly short period of time were taken off by ambulance. Many more were injured or had bikes/equipment damaged, but managed to limp home.

How crazy was it? Check these photos out. The photo on the right is what the project looked like for days before the final striping was completed. The carnage was incredible, with several riders suffering catastrophic injuries.

So now the city of Encinitas is going to be sued, and a lot of people have asked me how that process works. Like any bad relationship, it’s complicated.

When you sue someone you have a statute of limitations that varies depending on the claim. The California Code of Civil Procedure, Section 335.1 sets forth that time limit at 2 years for bodily injury claims. So you’d think you have two years to gather evidence, depose witnesses and experts, and get treatment.

You’d be wrong.

Wrong because any time you sue a city, county, state, or any other governmental entity, before filing suit you have to file a “claim.” Each governmental entity often has its own claim form, which is a pain, but here’s the kicker: You only have six months to file that claim pursuant to the CA Government Code, Section 911.2. If you miss that filing deadline and the city, if it’s a city you want to sue, rejects your claim, then you cannot file suit.

This is a huge trap for the unwary and it’s not accidental. The last thing that cities want is to be held responsible for their bad acts according to the same rules as people. What is so absurd about the government claims filing process is that it does NOT exist to give cities a chance to fairly resolve claims. In the numerous governmental entity cases I’ve successfully brought to conclusion, in only one case did the city respond to the claim with an offer, and that was for property damage only because the client sustained no injuries.

The rest of the time the city/county/state simply denies the claim, so don’t think that once you file your claim you’re going to get an offer for settlement. All you’ll get if you don’t know the rules is a permanent bar to filing suit, however meritorious your claim.

But it’s far from over, because the way that the city denies the claim is crucial to your case. According to Gov. Code 912.4, the entity has 45 days to deny your claim. Yet in many cases they never deny it. The 45 days come and go, and you’re none the wiser. In this case, which is by far the most common, your statute of limitations for filing suit reverts to two years from the date of injury according to Section 946(a)(2) of the Government Code. The entity simply ignored your claim and denied it “by operation of law.”

If the city does however send you a denial letter, you only have six months from the date of that denial to file suit under sections 912.4 and 912.6 of the Government Code. This is an incredibly short timeline especially since governmental claims often involve construction, multiple defendants, and a host of other issues that are inimical to hurry-up litigation, which is the point. Moreover, whether the city denies your claim in writing within the 45 days or after the 45 days, if they deny it you only have six months from the date of the denial to file suit. The city/entity is playing with a stacked deck; and obviously, if you think you have such a claim, get legal help asap because it’s much more detailed than I’m explaining here.

Even if you get far enough to file the claim and file suit, governmental entities have a host of defenses to protect them from paying the people whose lives they’ve ruined. By far the biggest hurdle is the concept of notice. Simply put, the city had to know of the problem. There are numerous ways to show notice, but by far the best is when similar mishaps have occurred at the same place. Additionally, when cities are sued for injuries at construction sites, they typically have indemnification and defense clauses with their contractors that can require the contractor to assume litigation costs if the city gets sued. What’s incredible about the claims percolating now in Encinitas, and I’m handling one of them, is that the city didn’t immediately shut down the project when it became aware of the injuries. And of course the existence of the extensive public commentary and criticism of the project make it difficult for the city to claim that weren’t on notice that the plans were going to hurt people.

Of course apart from the litigation aspect, the project is ridiculous beyond belief because the lanes themselves are still marked with sharrows, indicating that bikes are rightly in the travel lane. What then was the purpose of the “protected” bike lanes that injured so many people? Might it have been the $400,000 price tag wagging the dog? Maybe.

More likely, though, it was the typical mentality of people who hate Occam’s Razor. Rather than do what’s simplest, i.e. slow traffic and educate, people prefer to do what’s complicated-er.

With horrific results.

END

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32 thoughts on “How to get yourself sued”

  1. What you write is so true. Even locally on Culver in Playa del Rey, one only needs to look at the knocked over bollards to know that’s not a safe space to ride. Cycling Savvy for the win – I’ll take the lane any day.

  2. I’m all for setting up freeways to be driven at the speed for which they are designed, but, on all other roads, where there could be pedestrians and bike riders, the speed limits should reflect the proximity of slower traffic, not the “85% rule”. I have to bike commute most of my trip next to 50- and 55-mph speed limits, with commute traffic often moving much faster. It is scary, and I’m a pretty confident bike rider. We’ve got to find a way to slow motor vehicle traffic.

    1. Why we need speeds over 30 mph is a mystery to anyone who gets around just fine walking or biking.

  3. There hasn’t been a bicyclist fatality on Coast Highway in Encinitas since at least 2005. There was a pretty severe injury that’s well known in the media that occurred in December 2018 but that person survived and that was not along the part of Coast Highway where this project was built. In fact, in the area where this was built, between 2006 and 2018 (the data we had at the time of Serge’s and your letter last fall) there were only a handful of injuries along that corridor. So low in fact it took us all by surprise.

    Do you want to know what most of those crashes were? Solo bike crashes, bike-ped crashes, and I believe one or two right hooks.

    1. Oh, also the original plans didn’t call for sharrows and BMUFL signs.
      Those came about due to all the letters from the, uh “Vehicular Cyclist Special Interest Group.”

    2. Thank you, will edit to correct the mention of a fatality.

      I greatly dislike the phrase “handful of injuries.” Sounds like they were a) inconsequential b) the price of doing business c) unavoidable.

        1. The corridor that brings cyclists off the promenade onto the street just before Manhattan Beach creates confusion as cars are suddenly faced with bikes going the “wrong way.” The promenade should connect directly with the Marvin Braude trail in MB instead of spitting them out into wrong way traffic, but instead the path ends in a … staircase. I’ve also seen cars driving down the walled-off bike path connecting Hermosa with MB as they mistakenly think it’s a lane because, idiots.

          However, the real and most massive failure is the protected bikeway on Hermosa Ave. in Redondo Beach, which is a trap. Cars pulling into business parking lots hit cyclists who think that they are “protected.”

          What’s much more common are the countless bike-on-bike collisions created by funneling huge volumes of bike traffic into this tiny bike “protected” lane when all that was needed was clear signage that cyclists should be riding in the lane. For a time the design had big yellow cones that cyclists regularly slammed into, many falling off their bikes. The purpose of the cones was of course to tell idiots in cars NOT to drive down the bike lane. Which they did anyway.

          The traffic on Hermosa Ave. is so slow, or should be, that if this short stretch were filled with bikes sharing the lanes it would pose no problem to cars at all except for the existential angst that most motorists feel when they see hundreds of happy people pedaling bikes in “their” streets. And of course posting sharrows next to the “protected” bike lane infuriates many motorists who scream “Get in the bike lane!” because they don’t understand why you’re in the road.

          Why can’t neighbors Hermosa and Redondo put together something that is sensible, safe, cheap, and effective? Because such a thing already exists, the open streets. Hermosa did a great job by putting sharrows throughout their stretch of Hermosa Ave. and not putting in bike lanes.

          1. The protected bike path on N. Harbor Dr between Beryl and Herondo is perhaps the dumbest piece of crap infrastructure I’ve seen. Some moron thought it would be a great idea to intentionally hide thousands of cyclists from the view of unsuspecting drivers turning into the Cheesecake Factory and Bluewater Grill. I’ve ridden that stretch on average 8 times a week for several years and wonder what idiot came up with this idea every time I’m in the street. Not a week goes by without some unsuspecting driver screeching to a halt be because they don’t see the runners and joggers who assume they are protected. Even worse are the cyclists who try to be polite, ride the right side of the southbound lane, and then panic and swerve into the lane because the city put curbs forcing any traffic right into the middle of the lane. Literally the good of all time.Dumb Dumb Dumb Dumb. #notthatyouasked

            1. Brought to you by local cycling “advocates” and ninnies on City Council who think spending money = helping cyclists.

  4. Margaret Smiddy

    I looked at the pictures with the unmarked raised barriers and I thought wow, they let people ride in there with only post it type alerts. No surprise that there were injuries.

  5. Hi Seth, how has our local Hermosa Bike improvement failed cyclists?

  6. Let’s not forget the Marvin Braude Bikeway (the beach bike path) which is terribly managed by LA County. Lifeguards tell me of hundreds of injuries but I wonder if any records are kept in a searchable database. Nothing is being done to keep it for bikes only as it was intended to be – to separate cyclists from pedestrians. There are huge dangers now from walkers or groups of walkers rarely even single-file on the right, dog walkers with long leashes and multiple dogs, people pushing infants in strollers. Most of these people are oblivious to their surroundings, focused on their phones, unaware of or uncaring about the dangers that the pose as they block passage of bikes, often suddenly changing direction causing serious injuries to cyclists who smash into the pavement breaking various bones and destroying shoulders etc.

    There’s the poor LA County maintenance – always insufficient sweeping, dangerous sand drifts, treacherous asphalt bumps never get grinded flat, plant growth incursion, abandoned e-scooters.

    Now the county is planning to partially open beaches for “active” activities like walking and swimming yet inexplicably they still consider cycling a criminal activity.

      1. That’s fine for you personally to be an early-bird, but I thought that you were an advocate for solutions to and prevention of dangerous cycling.

        1. I am. But the best solution I have yet to come across as for people to take the lane.

          1. I was talking about the bike path. We need you to be an advocate. The old “bikes only” stencils need to be repainted and enforced.

            1. Did you miss the article above the comments section? He is an advocate. Are you?

              1. I ride the bike path in Manhattan, El Segundo, and Playa del Rey. This area needs to be advocated. I’ve called the maintenance guys recently but now they don’t answer phones and voice mailboxes suddenly are not set up to record messages.

  7. The dutch used to have the same problems. After the war, there was an explosion in auto traffic, and an increase in bike/car accidents. It took a lot of time and a lot of study, and the data said, that the greater the difference in speed between the car and the bicycle, the greater the number of incidents, so what did they do? On any road in which there is shared usage, they lowered the speed limit to 30. That would be 30kph. It took a lot of time and many years to implement their infrastructure that supports bicycle commuting, and though that includes separate infrastructure at times, it also involves a lot of shared infrastructure.

    So, yes, the prudent, and sane option would be to lower the speed limit on those roads as well. And enforce them.

  8. The latest grammar rule save the real estate taken up by having that one space at the end of a sentence.Just keep typing.Makes sense.Saves space.

  9. I was following that Redondo Beach bikeway on Hermosa using Streetview. Just WTF is this?

    The bikeway is two way up until here, where the “protection” appears to disappear, then the edge of the roadway instead becomes a “gore zone” but the stop sign has additional signs saying bicyclists should yield to pens and the speed limit is 8mph.

    https://www.google.com/maps/@33.8720786,-118.4053867,3a,75y,174.53h,78.24t/data=!3m6!1e1!3m4!1s_x4s4cP6sMD4RFFCTQVfQw!2e0!7i16384!8i8192!5m1!1e3

    1. This is the product of a local “bike advocate,” his buddies, and the city …

  10. Hah, this post could just as well be named “How to get your residents killed”. It’s funny to how much I agree with this because I remember reading another one of your posts about a year ago singing a similar tune and disagreeing vehemently. I thought, “of COURSE we want more walled-off, protected bike paths! Seth isn’t thinking of all the riders who aren’t comfortable riding alongside traffic!”

    After a year of riding in LA, I’m convinced that bike paths are definitely dangerous due to the false sense of security they provide. Some notable examples:
    * You’ve written extensively about the Marvin Braude path, which, quite frankly is a disaster and shouldn’t be marketed as a “bike path” these days. It’s more like an unpredictable pedestrian/e-scooter/etc. path where no one looks before swerving into the incoming lane or crossing the path.
    * Another case-in-point in San Vincente Blvd., which has a striped bike path but has been co-opted by joggers who step on and off the sidewalk without abandon and is door-zone central. Riding on the SV bike path is playing Russian Roulette with car doors.
    * Santa Monica has had an initiative to paint a bunch of bike paths bright green, but do those bright green stripes make an ounce of difference to cars? No. To this day the closest I’ve gotten to cracking my skull open is when a car turned left without checking for oncoming bikes in the bike lane.

    I’m convinced now that the only way to ride safely in LA is to take the lane and control the traffic flow around you. LA, and California as a whole, needs to get over its car culture and accept that bikes belong on the road just as much as cars. That’s how we’re going to stop seeing a ton of accidents involving cyclists.

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