How to get yourself sued

May 12, 2020 § 32 Comments

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

Where Am I?

You are currently browsing entries tagged with Encinitas city council bike lane at Cycling in the South Bay.