Los Angeles, CAA lot of cyclists assume they don't have recourse when it comes to bike accidents, but Charles Finkel of Magana, Cathcart & McCarthy has handled--and subsequently won—countless cases in bicyclists' favor. In this three-part series, Finkel and other experts will discuss types of cases that involve cyclists; firstly, automobile and bike accidents; secondly, roadway defects (such as slippery or hazardous roads, dangerous conditions on roadways and bikeways) and last, dangerous and/or defective products.
Attorney Charles Finkel also acknowledges that cyclists make mistakes and he should know: Finkel is an avid cyclist (he participates regularly in 80-100 mile events) and has cycled all his life. And he has handled many bike cases over his 30 years as a trial attorney. But first and foremost, Finkel says that a lot of people don't understand that motorists and cyclists have the same rights and obligations.
The following case exemplifies the hazards to cyclists on roadways today.
"A combination of the first and second type of case [above] caused a horrific accident that killed 2 cyclists," says Finkel. "Our firm represented the wife and daughter of Stanislov Ionov—a brilliant man and avid cyclist. He frequently took long bike rides and on this particular day, Ionov was riding on the Pacific Coast Highway in Malibu when he and another cyclist were hit from behind by a catering truck driver who wasn't keeping an eye on the road.
"More than one condition leads to the right ingredients for an accident. Construction work was being performed on the hillside below the roadway and there was excavation going on below the hillside. To do this work, the contractors had to obtain an encroachment permit from the state of California that owned and maintained the highway.
(Keep in mind that most cyclists who ride this stretch of highway--and it is commonly used--have a shoulder area where they can ride and remain free from traffic.)
Because of the encroachment, the contractors were allowed to close off the shoulder which in turn funneled cyclists and pedestrians using the shoulder into the lane of traffic. In discovery, I obtained testimony from the contractors' job supervisor; he felt this was 'a dangerous condition and might be hazardous to cyclists'. As luck would have it, these 2 cyclists funneled into the lane of traffic when along came the catering truck driver who was not experienced on that route and who also happened to be more concerned about the cook in the back of the truck!
The driver testified that he didn't even see the cyclists before he hit them, even though blood and body pieces were covering his windshield. However, he continued to drive for 1.4 miles before flagged over by another motorist.
The driver was convicted of criminal negligence and served about 6 months in jail. At first there were big insurance problems. For instance, the catering company claimed the truck was leased. Nonetheless, I settled the case where there was contribution from the insurance company for the catering company, the insurers for the job contractors and the State of California--for a total settlement of $4.5 million."
"There are so many hidden dangers for the cyclist," says Carter Spohn, business director. "Take into consideration highway design issues, temporary situations such as the above case, and more motorists and cyclists on the road with a lack of etiquette and less attention to the rules of the road. In the case just described above, a number of things came together at a moment of impact. Determining who is to blame can be complicated--the construction company certainly knew it was dangerous. But the tragedy is that it could have been prevented because people were aware of the hazard and let it fester until two people were killed."
Bad Motorists
Both Finkel and Spohn reiterate the importance of motorists knowing how to interact with cyclists and everyone should know their responsibilities under the law. "As a cyclist, I know firsthand that some motorists will just drive by you on a road where no other cars are around and blast their horn," says Finkel, "and sometimes they throw things at you and swear—there is a lot of anger."
"A major problem from an attorney's standpoint is that there seems to be an inherent bias by potential jurors that cyclists caused the accident, they shouldn't be out there to begin with and the cyclists should assume the risk.
I see that attitude often when I pick juries. Here is a classic example: I was riding my bike one morning in Santa Monica and came up a hill to a stoplight intersection. It was obvious that an accident had just occurred because a cyclist was lying injured in the roadway. Two pedestrians walked by me who hadn't seen the accident. "Those cyclists are always causing accidents,' I overheard one say to the other. Much of the time, an attorney has to expect that kind of bias when these cases go to trial.
For many accidents like the one in Malibu, it is a question of timing. But dangerous conditions exist and set the stage for accidents--just taking your eyes off the road for a moment can lead to a crash. (Motorists sometimes forget they are driving 1.000 lbs of metal.) One of the leading causes of motor vehicle accidents is inattention; add a cyclist to the fray and a lot of innocent people can get injured."
"I remember getting my driver's license at 16 and parents drumming it into me that if a kid runs out in front of you chasing a ball or riding a bike, they had the right of way," says Carter Spohn. "But now we are in such a hurry--we go around the cyclist rather than wait. Nowadays, some cases attempt to blame the pedestrian or the cyclist. In my day, that wasn't the case."
Bad Cyclists
"A lot of accidents happen when cyclists go around cars and get hit by their own negligence," says Finkel. "Unfortunately, there are a few bad apples that spoil it for the bunch. And those incidents are the ones that are remembered, such as cyclists running red lights.
Prevention
Charles Finkel says that as a society, we should be taking much more effort to protect the rights of cyclists, particularly when we are trying to get people out of their cars—both to save money on gas and to get more exercise. "Motorists must be made aware that everyone has the right to share the roadway," he says, "and cars and trucks pose a far greater risk to the cyclist than the cyclist does to them.
"On the other hand cyclists have the same responsibilities and duties," Finkel adds. "They must not run lights and they must stay to the far right of the road. And they can go a long way by promoting goodwill with motorists by obeying the rules of the road and behaving wisely."
Next week, Bike Accident Experts, Part 2: Roadway Defects.