Limit of the Law

People riding bicycles get hit by cars operated by people. Awkward wording, but I think it is the right way to express in words the risk we face when we pedal on the road. I could have written “bicyclists get hit by motorists,” but that presentation includes terms that cloud the issue for me. The terms being “bicyclist” and “motorist.”

So what is the issue today? When a person riding bicycles gets hit by a car operated by a person, will the law be there to help? I would like to think it is, but we all know that sometimes it is not. For better and for worse, the law is not self-actuating. People make laws and people enforce laws. Sometimes they aren’t there to witness the event. If they are, they sometimes make decisions with which we do not agree. Might be because they are influenced by their lifetime of experiences. Might be because they are trying to stick closely to the words in the statute or past decisions. In any event, the law doesn’t always serve up a steaming helping of justice when we are injured. Or maybe it does. Your decision on the matter depends on your expectations. Is it about winning or balancing the scales?

If we are lucky enough, we’ve only had to ponder this question in relation to the experiences of others. No examples come to mind? Here is the one that caused me to write. In short, a car turned right into a bicycle at an intersection. The bicycle was pedaled by Carmen Piekarski. Officer issued a ticket for failure to yield to a bicycle. The judge threw out a ticket because the car turned into Carmen at an intersection. One element of the offense is that the bicycle be in a bicycle lane. Carmen was traveling in a bike lane, but the bike lane markings were not painted through the intersection where the impact occurred. No bike lane markings, no ticket. Does this make you angry?

I have a similar story. On Mother’s Day in 2008, in bicyclists’ parlance, I was the victim of a left hook. I was pedaling straight along a roadway and a car making a left turn hit me. I went onto the hood, then to the ground. I was surprisingly calm. Serene almost. Very strange. My emotions make every effort to explode when I perceive anything approaching risky motoring behavior anywhere near my person when I pedal. It took me more than a decade to learn not to chase down “offenders” and give them a piece of my mind supplemented by one or even two middle fingers.

On this day, when the risk morphed into material impact, not a foul word was uttered nor a single finger paraded. Instead, I stood up, picked up my bicycle and gave it a quick inspection, parked it on the kickstand, approached the man driving the car whose hood I had just met and asked him to call the police. All civil like. He made the call.

I was unharmed but shaken, shaking actually, but I formed the idea that I wanted this man to receive a ticket. I also wanted to have an official record of the event if my initial appraisal of bodily and bicycle integrity turned out to be wrong. A police officer arrived. I asked him not to call emergency medical responders. He agreed to call off the ambulance, but wanted the fire truck with EMT guys to come. The ambulance came, but the officer waved them away. The huge ladder firetruck arrived next with maybe six firemen. The nice captain asked if they could at least take my blood pressure and then complimented my low blood pressure, then left. What started as a zero emissions recreational ride through the city had become an occasion to roll out every imaginable emergency response vehicle. So much for zero emissions. I have to admit, though, I did feel kind of nurtured. For the time, anyway.

The officer now questioned the man driving the car in my presence. He asked the man a leading question something like “did you not see him?” A gift to the man, really, but the man was too honest to accept the gift. The man responded that he was stopped in the turning lane, started to turn left, saw me and a car traveling in my direction and, I am paraphrasing here, opted to hit me rather than be t-boned by the approaching car. I was dumbfounded. The man just admitted to the officer that he hit me intentionally. Not only was I going to get my official record of the event, and it was a juicy one, I was going to get a little slice of justice. A ticket would be issued.

Should have been easy to find a number of citations to write. Let’s start small. Failure to yield? Or maybe take it up a notch, with careless, negligent or reckless driving. Or maybe go all the way to vehicular assault? To be honest, I don’t know which of the citations I list has the potential for the stiffest fines. I just listed them in order of increasingly menacing titles. I don’t even know the specific elements of the offenses in New York, or even which of the offenses are on the books here. That said, I was sure the officer had some powerful law at the ready and would be laying it down.

Turns out the only thing that got laid down was me. After hearing the man’s admission of guilt, the officer said he was glad I was ok and that he would not be writing the man a ticket. He cautioned the man to be more careful in the future. I of course had made a note to be more careful in the future, but that was after I metaphorically picked up my jaw from the pavement. What was my outward reaction? Calm. I thanked the officer, shook his hand, and then shook the hand of the man who had just assaulted me with his car. Surreal. Had I died and my ghost was taking care of the final details on my behalf?

I pedaled my bicycle home in my new Casper the friendly bicyclist guise. I trued the front wheel and put black fingernail polish on the front rack to cover a small abrasion. Lacey was out of town so I called and shared the story. She was also out of town the time I got hit on my motorbike, which day was also a holiday. December 25. See the pattern? Don’t pedal when Lacey is gone if it is also a holiday.

I will never learn. After I hung up the phone, I put on my coat, mounted the same bicycle and took another ride around the neighborhood. Like getting back on the horse, right? I didn’t want to be sit around nursing a new phobia. I was going to exorcise it. I was a little scared. Thirty minutes into the ceremony a person driving a car tried to give me a right hook. This time I was on the brakes in time. What are the odds? I went home.

So where was the law when I needed it? Surprising even to myself, I think the scales were best balanced by leaving the law out of it. Good that the police report was filed had it become necessary, but I do not think a citation would have woken up the driver any more than the act of hitting me and the arrival of the police officer, the fire truck and the waived off ambulance. A lot of lights and action even without issuing a ticket. I suspect the man got the message. I believe the officer checked the fellows license and saw a clean record. I hope if the man was one ticket away from losing his license that the officer would have given him that final ticket, but my sense of the man was that he honestly made a mistake. I didn’t smell alcohol. He apologized profusely. A person driving a car made a mistake. No one and no thing was seriously injured. Let’s all be more careful. Isn’t that enough? Maybe not. Occurs to me the man should have been compelled to get an eye test. I don’t know if officers can do that, but maybe they should have that tool in their belt.

Where was my ire? It is always right under the surface straining to break free when people almost hit me. We bicyclists feel it when they read stories like mine and Carmen’s. Comments to Carmen’s story include a call to disbar the judge (akin to “Throw out the ump! He s blind!”), a call to stripe all intersections (the accident took place in Portland, so extending the stripes just might happen), and hand wringing expressions of dismay that bicyclists are unprotected by the law. Something more must be done!

Maybe I wasn’t angry because I wasn’t injured. I remember a mental victory dance as soon as I stood up after being hit. What else mattered? Had I been injured, I surely would have reacted differently. I wouldn’t have worried about the failure to issue a ticket. If I had been injured, levying a small fine against the driver wouldn’t have helped. I would have focused my effort toward the civil courts to try to extract cash from the driver or his insurance company to pay for any needed medical care. A second scale. One much better designed to take care of the victim. The other scale, the criminal court scale, really only takes care of future victims and I don’t think it does a very good job of it at that.

Carmen, and the commenters who worry about riding without the protection of the law, should remember the civil courts. Carmen had roadrash and is undergoing physical therapy for an injury to her shoulder. Maybe her bicycle was damaged, too. If the total damages are sufficiently high and the driver had insurance or personal assets, Carmen could recover in a civil lawsuit. Or settle outside of court with leverage of a threatened civil suit. That said, if Carmen has health insurance, I doubt she will bother. Health insurance should cover the physical therapy, which should be the biggest expense unless she was pedaling a Vanilla or some such lux-o-ride. In the end, I wonder how Carmen feels? What will she do? I hope Carmen heals in all ways and can enjoy pedaling again.

I did next to nothing and feel good about my decisions. Maybe it wasn’t only because I escaped injury. Maybe it was because I had the chance to face the driver who had wronged me. Literally look him in the eye and have a conversation. I remember thinking that the driver who hit me with his car was my neighbor (in the sense that he lived in the area). I was happy that he stopped and was apologetic. I was happy that he called the police for me. I was happy that he wasn’t drunk. He seemed like a good guy that made a mistake. Who hasn’t? Here I was standing, yes happily standing, talking to another Albanian and working out a resolution. It was as close to pleasant as I can imagine. This is significant and has implications beyond the one experience.

Why was I so forgiving of this man as compared to my immediate and extreme anger toward people who pass too close or almost give me the left or right hook, but miss? I think it is because in the instant I am wronged by a speeding motorist (I think all cars drive too fast; the posted speed limit is routinely ignored and the real limit is the lower of the posted limit and the speed appropriate for the situation–driving by a person on a bicycle should require a decrease in speed) they are not people. They are anonymous motorists. It is too easy to hate a generalization, right? Harder to hate a person after you shake their hand. I think this is why the relationship between motorists and bicyclists is so often strained. Cars hide the people who drive them by enclosing them in a bubble and allowing the operator to speed away from the scene of misbehavior. Like a person wearing a mask on Halloween, they are free to misbehave. When our identity is known, our reputations are on the line. We have a greater incentive to make socially acceptable compromises. This is why I stopped screaming at motorists. The only one who looked like a jackass was me. The person driving the car just pushes their right foot a little closer to the carpet and they are gone. On a bicycle, I am identifiable, and I don’t want to be identified as being a foul mouthed, raving lunatic. I also don’t want to be shot.

This is the reason I prefer the phrase “person operating a car” to “motorist,” and the phrase “person pedaling a bicycle” to “bicyclist.” Words matter. They frame the way we think. Mental habits carry over into emergency situations. I think it is better to stress that both parties in an accident are people. Not a motorist and a bicyclist. People. Probably neighbors. What should we do? How should we react when we have an accident or almost have an accident? (Wood bike by ANT. Sadly, not owned by me.)

Start with the term bicyclist. To a bicyclist, the term bicyclist could mean a person who rides bicycles a lot. A skilled rider. Could be a bunch of other more nuanced things, but they are surely all positive.

What image does a motorist get when they think of a bicyclist? Some are also bicyclists, so they form a positive image, but others, well, insert here the four letter words that get shouted at pedalers, or any other of the usual litany. We don’t pay taxes. We hold up traffic. We don’t follow the laws. We are a menace. I am sure every driver with bad opinions knows one person who pedals. That person is ok. Outside the generalization. Why can’t we all be outside the generalization?

Turn the page. What mental image comes up when you think of motorists? In the rhetoric I come across in bicycle specific literature, the generalizations of motorists are never favorable. It is us against them. This position is both unhelpful and inaccurate. First, if it is us against them, I am both. So me against me? When I motor past a bicyclist, I slow down and give the full lane. Excessive but polite. Or maybe you think the generalization is valuable as a tool of prevention. Watch out for taxi’s or some such thing. I don’t believe the generalization will keep you safe. Better to assume responsibility for your safety as to all other road users. Not just one type. Both times I was hit, I remember saying to myself just before impact “they see me.” I relaxed and paid the consequences. What the generalization will do effectively is make you paranoid. If it is us against them, on a bicycle I would lose every time. Luckily, it isn’t a war. I have been pedaling on the streets for over 30 years and still enjoy it. Me against them thinking didn’t keep me safe. It was my attention and the attention of my fellow road users, together, that have allowed us all to get where we are going.

In the same way that generalizations won’t keep you safe on the street, they won’t serve you in the abstract. As we know when we bother to think about it, generalizations aren’t accurate. They miss their mark. If on the web I want to yell at “motorists,” who will be on the other end to get my message? I doubt anyone is, or they are not the person I assumed them to be. Your rant will do only one thing for sure. Make you look crazy.

The generalization will only serve in the split second when someone passes you too closely. It will create another layer of anonymity allowing you to hate them more completely. You can release your ire and look like an ass, or worse. The people around you will have the opportunity to add your behavior to their generalization of bicyclists, the fruits of which addition we can all enjoy.

Your choice, of course. I hope you treat people as people, on a case by case basis. If the person happens to be in a car, such that you can’t engage them or even identify them, consider erring on the side of compassion when they pass you too closely. Realize they are probably your neighbor. Treat them like you might have to shovel a shared driveway with them. Maybe they didn’t mean to communicate with you through their position on the road. Maybe they made a mistake. More likely that they don’t know what it is like to be passed closely. Forgive quickly and get back to the business of enjoying your excellent bicycle ride.

I now try to consider close passes as victories. The driver thought they were leaving enough room and, in fact, they did. I read on Lovely Bicycles page that European motorists expect bicyclists to be skilled and riding in straight lines, so they often pass very closely. That surprised me, but there it is. Maybe some close passers here can see I am mad skilled. The close pass is a compliment! Of course I wish all cars would leave more room when they pass. I prefer being given the whole lane, but that rarely happens. I haven’t found an effective way to have that conversation with a person in a car, so I now work hard to communicate to other road users nothing beyond my intended course of travel.

In the end, I expect respect from other road users and I work hard to give it. This is my greatest comfort. Not street architecture (save that for another post, but know I’d like to pedal in a divided bike lane once in my life). Not the law (but the legal system can be an effective secondary tool if a genuine and material need arises).

This next bit is the most important part of the whole post. If you ever need the civil legal system, the one that compensates victims for losses rather than just handing out tickets, know that the scales are more likely to tip in your favor if you were following all laws at the time of the accident. Contributory negligence. Say it aloud. Then don’t do it. Don’t, that is, contribute to your injury by being negligent while the car operator is as well. Diminishes your award. Since you don’t know when accidents are about to happen, best to follow all laws at all times. Can’t follow them if you don’t know them. Even if you think you know all the laws, chances are you’ve missed something. I have read a lot, but apparently not enough. This book, from one of the most learned bicycle lawyers in the country, taught me much. Every bicyclist should read it.

Sounds like Carmen was entirely in the right. Following all the rules. It might sound wrong that the ticket was thrown out, but do tickets really help? There will always be drivers making mistakes, despite the issuance of tickets. What Carmen could make use of is the civil courts. Again, if her need is big enough.

Or maybe we want just a quick little justice fix. A ticket to be issued. With my accident, I sometimes wonder if a ticket would have been issued had I been driving a car when I was hit. One commenter to the article about Carmen’s experience wondered the same. Might be something to that. So maybe I am sick of being treated like a bicyclist. I want to be treated like I am your neighbor. The one who shoveled your walk when you were out of town. At the moment I am a tortilla chip eater. Does the law protect me now?

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6 responses to “Limit of the Law

  1. Hi Randal,
    Thanks for the thoughts. I had a very different situation a couple of days ago, but the common thread was that my initial reaction felt like justifiable anger that quickly turned into thinking about another human being in a set of circumstances that I might have handled in a similar way.
    I love the human component of cycling. The anonymity of sitting inside a motor vehicle is something that disturbs me as both a cyclist and a motorist.
    As an Oregon cyclist, I hope the Zusman ruling is a red flag that ultimately leads to improved safety for all of us.
    Best regards,
    Doug

  2. Enjoyed the post. It seems weird that the judge spoke of the broken bike lanes as part of his argument. What if there were no bike lanes in that section of the road? I like the idea of bike lanes since I think they attract more riders to get onto the road, but it seems here that they contributed to a limiting of the rights of cyclists. The fact that he relied on the pavement markings to make a determination is worrisome to me. I’ll have to read the book you recommend…sounds like a good one.

    Liked the kimchi write up and especially the part about using the wax to repair the cracked crock. I had not heard of that kind of fix before so that was interesting.

    Those sure are some cute dogs!

    • Thanks again for reading and writing, and for bringing your cute and well dressed dogs over. Like I said in the post, I will write someday regarding my feelings on bicycle architecture. Briefly, I think bicycle architecture alone can cause more problems than it solves. It needs to be coupled with education for all road users. Since education is necessary with or without the architecture, I wish they’d skip the architecture, or pick the cheapest alternatives, and use the savings on education. With good education, I think the roads work without bicycle specific alterations. Now for something truly useful… vacuuming the house.

  3. @Laura – the problem that came up in this particular case was the statute used to cite the driver of the car. The judge ruled that it didn’t apply in this incident. If the police officer on the scene had cited for something else, perhaps Careless Driving, it probably would have held up. The ruling came too late for any other charge to be filed. In a subsequent email to a TV station, the judge suggests it is up to the legislature to fix this, so ultimately there will probably be a good outcome.

    • Thanks, Doug. I hope the law is cleaned up. I am sure it was meant to apply at intersections, so the fix should be noncontroversial.

      That said, I hope we all spend more energy on using the roads more safely and cooperatively. Rather than rely on the protection of a statute, which does nothing to prevent a person driving a car from turning right at the last minute, get in the habit of not putting your bicycle anywhere a car might turn. Clearly, not always possible. For instance, it doesn’t work where a car overtakes you and then immediately turns, which probably is what happened in the case at hand. Works very well, though, if a pedaler avoids overtaking cars on the right. While I understand why a pedaler would think it is ok to overtake cars on the right when in a bicycle lane, it is risky if you do it anywhere a car has an opportunity to turn right. Like at a drive or intersection. Safety is free and yields immediate results. More effective than the law.

      Thanks again for writing.

  4. Pingback: Metal Pedals Are Dangerous, Too | Randal Putnam Loves to Pedal

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