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By: Richard L. Duquette, Esq. - www.911law.com* & Clayton Griessmeyer, Esq. - www.griessmeyerlaw.com*
Regardless of our status in the bicycling community, each of us should be mindful of risk management. As a long-time member and supporter of our community, I would not take any action against a club, ride leader, race director or sponsor. However, we all know that there are plenty of attorneys who will.
The intent of this article is to protect the very viability of our organizing groups. We can all agree that our sport carries many risks. We also understand that when an unfortunate accident occurs, there will be fingers pointed at each involved party. Given this environment, it should be our common goal to avoid nasty litigation and dark courthouse corridors even before an accident. As a famous trial lawyer once said, "Nothing grows in the court house."
Many bicyclists are averse to discussion regarding the legal considerations of our sport. Typically, a lawyer is involved in our sport only when there is an accident, and we choose to assume that it will never happen to a member of our careful and conscientious community. However, having practiced law for over 32 years and tried over 60 civil and criminal cases, let me share some insight that may make you think twice.
The Risks of the Ride
We know that not all bicyclist are angels. The other morning, as I was walking with my wife in Carlsbad, we were nearly struck by a bicyclist who ran his red light, (presumably to maintain momentum or to avoid unclipping). We have all heard from drivers who complain about bicyclists aggressively exercising their "vehicular" rights to "take the lane." This type of behavior can lead to a contentious relationship between bicyclists and the drivers that share the same road.
Sometimes the danger arises from inexperience. In a recent incident, an admittedly inexperienced bicyclist followed a group ride on a freeway shoulder. At a steep off-ramp, she failed to make the hard left turn. Her crash resulted in serious skull and brain injuries, and numerous broken bones. ** Clubs, group leaders, and sponsors – beware! Even though the bicycle club may argue that there had been no prior accidents on the route, the law clearly states, "Evidence of the absence of previous accidents is inadmissible to show that no dangerous condition existed." Murphy v. County of Lake (1951) 106 Cal.App.2d 61, 65; see also, Hawke v. Burns (1956) 140 Cal. App. 2d 158, 169 ["for certain limited purposes the plaintiff may prove previous accidents but a defendant, at least in the first instance, may not prove absence of previous accidents."]
An even more remote - but unfortunately not uncommon - source of risk is the rogue vehicle driver. In a recent well-publicized criminal case, a motorist who was high on methamphetamine drove her car onto Fiesta Island, against all One Way traffic indicators, and directly into a peloton of bicyclists with catastrophic results.
The Legal Implications
Some clubs and sponsors would argue that risks are inherent in the sport, and each bicyclist assumes those risks. Though this legal defense is often applied in court, its effectiveness depends on underlying facts, which will be deliberated through the unpredictable jury process.
Many of you will recall Henry Fonda's classic movie, Twelve Angry Men. The entire film takes place in the jury's deliberation room, and the taut drama is driven by the argument, debate, and personal experiences of each very different juror.
Now imagine twelve elderly retired jurors, likely not bicyclists. For the reasons cited above, these jurors may well have a contentious attitude with bicyclists. Even if you are lucky enough to garner a juror who is a bicyclist, that juror may well carry prejudices based on his or her own bicycling style. The juror may substitute personal biases into your case as a form of "self-protection," according to formal jury studies. This does not bode well for a club or sponsor who has implicitly sanctioned the course or event that is subject to the jury's review.
Keep in mind that, unlike the criminal trial at issue in the movie, a plaintiff's burden in a civil matter is proof by a "preponderance of the evidence." This means even the slightest consideration may tip the scale against you. At trial, I like to use a "red-tailed hawk feather" to demonstrate this concept, letting it drop ever so lightly from my hand on an imaginary scale.
When you argue that a bicyclist "assumed the risk" of the accident, you may resort to arguments based on principal and statistics. You will likely also be forced to retain an "expert" witness to contest another hired gun. Good luck...
The stakes for an event organizer or sponsor can be shockingly high. Because of our limited protection when riding, the injuries are often severe, and most serious bicycle injury cases return six-figure verdicts.
Manage the Risks
The risks involved in organizing and sponsoring a bicycling event – so arbitrarily considered in the heat of a jury deliberation room – may be managed in advance by some basic elements of legal planning.
Each club should form a corporation or LLC to protect its officers and directors from personal liability. It should be properly funded and managed, so it's corporate "veil" is not pierced exposing the individual organizers.
Each club and sponsor should carry a general liability insurance policy of $5 million, with coverage extending to officers and directors. Each should be "named" insureds on the declaration of coverage and certificate of insurance, (especially race sponsors).
Each club should carefully review its membership application and waiver. A release may be enforceable, but its effectiveness depends on the scope of the release and facts of the instant matter. Poorly drafted releases are often challenged and defeated.
The easiest method of risk management is the selection of routes for your events. It's not worth the risk to take chances in an area with high-volume traffic flow, potentially exposing your riders to distracted, drunk or inattentive drivers. Also, encourage your participants to ride in marked bike lanes and paths. (By law, if a motorist hits you in a bike lane, the driver is automatically negligent as a matter of law.) County maps, such as SANDAG, are readily available on-line.
Further, the tort law has long recognized that when one undertakes an activity for the benefit of others, (i.e. like organizing a bike ride route) or provides inadequate instructions – see section F below). That one must act as a reasonable prudent person in that under taking. The duty portion of a negligent undertaking case is met when a person agrees to take on a task, fails to exercise reasonable care; thereby increase the risk to the bicyclist victim. See Paz v. State of California (2000) 22 Cal 4th 550, 559-560 for guidance.
Pre-screen your participants before a ride. Ask specific questions and provide specific written warnings, such as:
How experienced are you?
What's the condition of your equipment, i.e. brake pads and tires? (Insurance defense experts will meticulously inspect your bike after a crash, looking for a way out.)
When's the last time your bicycle was inspected and overhauled? (Do you have a receipt?)
The ride may not be suitable to your limitations. (Provide a written ride route.)
Consider that speeds can reach x miles per hour, with turns, hills, and traffic, in a peloton.
Before each ride, confirm that each participant has provided a signed acknowledgment of your warnings. This will discourage "ride-a-longs", (i.e., non-members who choose to share the course with members). By discouraging the ride-along, you will distance yourself from any duty to those riders.
Carefully select your ride leaders? Most are qualified to lead a group ride. However, avoid the leader who exhibits the following characteristics:
A leader who "propagandizes," as opposed to accurately "educates"
A leader who fails to follow the "law"
A leader who argues for "risky" routes
A leader who claims to be an expert
A leader who holds an organization out to be an authority on legal or safe riding practices in order to "justify" his "views"
If a leader is exhibiting this behavior, failure to take corrective action arguably amounts to ratification of the conduct. This legally places the club or sponsors at risk, and jeopardizes the entire club.
Insist on bright clothes and led lights. Encourage the use of a video device, like a fly or contour recorder. Consider using electronic devices that warn of approaching traffic. Also, request riders wear a "rider ID" medical bracelet with medical and emergency contact information.
As a further safety net, require your club members to carry strong uninsured/under insured motorist (UM/UIM) coverage, and a $2 million umbrella policy with UM/UIM provisions. The member is almost always in the best position to avoid an accident, and therefore should bear the risk of insuring against an unforeseen accident. (My website contains an article on this subject: http://www.911law.com/Legal-Blog/2008/December/Cyclists-Don-8217-t-Skimp-on-Insurance.aspx)
Rules and common dangers should be posted on the club's website and discussed at the annual club meeting. When establishing rules, err on the side of a conservative approach. Include language that warns of both known and unknown dangers language.
Restrict conversations regarding risk management among the organizers and its ride leaders to personal meetings. Lawyers subpoena e-mails. Instruct your members accordingly.
When organizing an event, consider splitting groups according to ability.
Encourage experienced riders to self-police the rides. Seasoned riders can urge the group to ride safely by: maintaining a single file in dangerous areas; preventing riders from blowing stop signs; keeping the ride from turning into a race.
When in doubt about the safety of a particular route, obtain a written opinion of a traffic engineer or a professional race director.
Consider inviting a traffic enforcement police officer to speak at the annual meeting regarding bicycle laws and safety.
Obtain a contact number of local emergency personnel before a ride, and request a stand-by ambulance.
*Last, it is advisable to have an attorney experienced in bicycle litigation and Jury Trials speak to your club to answer membership questions. Both Mr. Duquette and Mr. Griessmeyer are so qualified. They are also graduates of the prestigious Gerry Spence, Esq. Trial Lawyers College in Wyoming.