Bicycle Litigation Strategy by Keith Kessler and Daniel Laurence by The Stritmatter Firm

Real Justice for Real People

BICYCLE LITIGATION

Volume 4 | Issue 1 June 2015

ABOUT THE COVER ART AND THE ARTIST Jose Ramirez is an artist, teacher and the father of three girls, Tonantzin, Luna, and Sol. He received a BFA (1990) and an MFA (1993) in art from UC Berkeley. In 2001, he received the Brody Award/Getty Visual Arts Fellowship. Jose has illustrated seven children’s books, including Quinito’s Neighborhood, Frog and Friends Save Humanity, Zapata para los Niños, Papito Dios, and Quinito Day and Night. Among his commissions, he has worked for several nonprofit organizations, hospitals, cities, film and television companies and cultural centers across the country. In addition, he has lectured and exhibited his work in museums, universities, galleries and cultural centers in New York, Washington D.C., San Francisco, San Diego, Texas, Japan, and Mexico. For more info please visit ramirezart.com. You may contact him at joseram@aol.com or 323.377.4967.

ABOUT STRITMATTER KESSLER WHELAN Stritmatter Kessler Whelan (SKW) is a premier Pacific Northwest law firm devoted to representing plaintiffs in personal injury and wrongful death claims. Experienced in trial, SKW attorneys welcome tough, complex cases. Our verdicts and settlements include bicycle injury, wrongful death, product liability, nursing home, government liability, medical negligence, highway design, premises liability, construction site, class action, vehicle crashworthiness, major vehicle collision, maritime and aircraft crash cases. The attorneys at SKW are committed to making a difference in the lives of our clients, in helping to ensure justice for the injured, and in contributing to the legal community through leadership and education. Please visit Stritmatter.com for constantly updated information about the firmâ&#x20AC;&#x2122;s latest successes. Please also visit SKWBikeLaw.com/blog, where we post regularly on timely issues in the area of bicycle injury law.

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ABOUT THE AUTHORS KEITH L. KESSLER

Keith has tried road safety cases in courtrooms throughout the State of Washington for the past 35 years. He is the preeminent legal authority on government liability for injuries cases by unsafe streets, including conditions that present hazards for bicyclists. His success in this unique field of law comes from thoughtful preparation and aggressive work, while still maintaining a civil working relationship with opposing counsel. This approach to the practice of law earned him recognition by the Washington Defense Trial Lawyers as Outstanding Plaintiff Trial Lawyer, the first such award ever given.

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The plaintiff bar (Washington State Association of Justice) also honored him as Trial Lawyer of the Year in 1994. Keith was chosen to serve as President of the Washington State Trial Lawyers Association (now the Washington State Association for Justice), and as President of the invitationonly Washington Chapter of the American Board of Trial Advocates. He was then inducted as a Fellow with the American College of Trial Lawyers (who comprise the top 1% of trial attorneys across the country). In 2009, he co-founded the Bicycle Litigation Group of the American Association for Justice. Keith has succeeded in holding municipalities responsible for catastrophic injuries to bicyclists. His exceptional work has not only secured compensation for people injured by road hazards, but it has brought needed safety changes to our streets for the well-being of the traveling public.

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DANIEL R. LAURENCE

Danâ&#x20AC;&#x2122;s 25 years of experience as a trial lawyer in catastrophic road collision and product liability cases, both as a defense lawyer and as a plaintiffâ&#x20AC;&#x2122;s lawyer, is naturally suited to the task of representing bicyclists. Dan works regularly with clients and with other attorneys who seek his expertise in navigating the often arcane and highly localized realm of bicycle law. One distinct advantage Dan brings to representing an injured bicyclist is that Dan sees those cases with the eyes of both a lawyer and an avid lifelong wheelman. Dan uses his bike to commute and to ride for fun. He regularly participates in local and national bicycle endurance events. As a result, he is intimately familiar with the experience of the bicyclist in nearly every imaginable environment; from

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city rush-hour traffic to suburban byways to rural highways to mountain logging roads. Dan is a member of the Washington State Association for Justice, an officer of the American Association for Justice Product Liability Committee, a member of the AAJâ&#x20AC;&#x2122;s Bicycle Litigation Group, and a former chair of the King County Bar Association Professionalism Committee. Dan continues to participate in and advocate for the kind of accountability that ensures all may safely pursue this transcendently enjoyable and sustainable activity.

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ACKNOWLEDGEMENT The authors would like to acknowledge Catherine J. Fleming, an SKW attorney, who has worked tirelessly to manage this project. Her guidance, persistence and optimism were instrumental in spurring the completion and refinement of this booklet.

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“Bicycle law is a mystery to most trial lawyers, but this excellent booklet by premier WA trial lawyer Keith Kessler and experienced cycling attorney Dan Laurence makes it easy. It clearly and simply presents ALL pertinent law, factual scenarios and strategic considerations necessary to evaluate and handle a bicycle injury case.” – Ron Perey

“Kessler and Laurence have put together the comprehensive primer on Washington bike law that should be consulted by any lawyer taking on a bike case in our state.” – Kristi McKennon

“This remarkably thorough Bicycle Booklet explains the rights and duties of bicyclists. Who better to summarize this often complicated and confusing area of law than Keith Kessler and Dan Laurence – attorneys with a successful history of representing bicyclists whose lives were changed forever by the negligence of others.” – Todd Gardner

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TABLE OF CONTENTS INTRODUCTION.............................................................................. 15 I. WHAT IS A BICYCLE?.....................................................................17 II. WHAT IS REQUIRED OF A BICYCLIST?.................................... 20 a. Required Equipment............................................................... 20 b. Prohibited Equipment?/Headphones/Earbuds/Sunglasses.. 22 c. What Part of the Roadway is Open to Bicyclists?................. 23 d. Rules of the Road..................................................................... 27 e. Rules of the Sidewalk................................................................31

f. Bicyclists in Crosswalks.......................................................... 34

g. Mixed Use Paths and Trails.................................................... 34 i. Right of way.......................................................................... 35

ii. Speed limits......................................................................... 35

iii. Annunciation (Bells, Whistles and “On Your Left”)...... 36

h. Traffic Control Signals............................................................ 38

i. Hand Signals............................................................................. 40 j. Specific Activities Deemed Illegal.......................................... 42 k. Impaired Bicycling.................................................................. 42 l. Road Rage.................................................................................. 43

m. Liability for Violations by Children...................................... 43

III. COMMON COLLISION SCENARIOS........................................ 44 a. Bike v. Motor Vehicle............................................................... 44. i. Turning Right or Left........................................................... 45. ii. Parallel Direction Crashes................................................. 47 (a) Passing On the Right.................................................... 47 (b) Rear-End Collisions...................................................... 47

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iii. Car Doors............................................................................ 47 iv. Trailers................................................................................. 48 b. Animals..................................................................................... 49 IV. INSURANCE................................................................................ 51 a. Property Loss........................................................................... 52 b. Personal Injury........................................................................ 53 i. PIP.......................................................................................... 53 ii. UIM....................................................................................... 54

c. Liability..................................................................................... 54

d. Business Insurance................................................................. 55 e. Settlement Considerations..................................................... 55 V. MUNICIPAL LIABILITY: Unsafe Streets and Sidewalks.......... 57 a. Negligence in Failing to Maintain and Repair Streets and Sidewalks.................................................................................. 59 b. Unsafe Mix of Cars and Bicycles............................................ 60 c. Duty to Provide Streets and Sidewalks Reasonably Safe for Bicycles................................................................................ 64

d. Case Strategies......................................................................... 66

i. Case #1: Gendler v. State of Washington............................. 66 1. Venue................................................................................ 67 2. Streamlining the Case through “Laser Motions”....... 68 3. Proving Notice through the Bicycling Community... 71 ii. C ase #2: Remme v. State of Washington and City of Seattle............................................................................... 73 1. Use of Storyboards Rather Than Computer-Generated Animation........................................................................ 75 2. Venue................................................................................ 76

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3. P roving the Municipality’s Constructive Knowledge of the Unsafe Condition..................................................... 76 4. Duty to See What is There to Be Seen.......................... 78 5. Avoiding Recreational Immunity................................. 81 iii. C ase #3: Doe v. City of Seattle - Public Records Act Requests for Complaints and Maintenance History..... 83 e. The Juror’s State of Mind......................................................... 84 VI. PRODUCT LIABILITY................................................................. 89 VII. EVIDENCE.................................................................................. 93 a. Usual Sources........................................................................... 93 b. Technology............................................................................... 93 VIII. BICYCLING AND CELL PHONE USAGE................................ 97 CONCLUSION................................................................................... 99 ENDNOTES......................................................................................101 APPENDIX....................................................................................... 112

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INTRODUCTION “Nothing compares to the simple pleasure of a bike ride.” – John F. Kennedy Bicyclists live in the interface between walking and motoring. As a result, the laws governing this simple form of transportation are, in some ways, more daunting than for either of those alternative forms. A bicyclist is in fact recognized by law as both a “pedestrian” and a “vehicle” – an ambiguous two-wheeled chameleon. With these multiple personalities, the cyclist rides down the sidewalk with other pedestrians…

…and then moves into the street with other vehicles…

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Bicycling downtown Toronto" by Hallgrimsson - Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

…with crosswalks only exacerbating the schizophrenia. In this booklet, we do not seek to survey and describe every law and local variation on it that applies to bicycling. Rather, our booklet is intended as a general orientation – from required equipment, to rules of the road for bicyclists, to municipal liability for unsafe streets and sidewalks, to the defective design and manufacture of bicycles. We hope that by focusing on Washington state law and giving some examples of approaches taken by major municipalities – chiefly, Seattle – this booklet will give basic guidance to cyclists and attorneys traveling through the maze of “Bicycle Law”.

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I. WHAT IS A BICYCLE? “The bicycle is the most civilized conveyance known to man. Other forms of transport grow daily more nightmarish. Only the bicycle remains pure in heart.” – Iris Murdoch, Author and Philosopher Bicycles include the vehicles we all think of as standard bicycles, but can also include less usual two-tandemwheeled contraptions, such as recumbent bicycles and elliptical bicycles, provided they meet the wheel size criteria. As to threewheeled vehicles, most rickshaws or bike taxis would qualify as “bicycles” – which seems logical – but so would some jogging strollers and garden carts!

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Under Washington law, “’Bicycle’ means every device propelled solely by human power upon which a person or persons may ride, having two tandem wheels either of which is sixteen inches or more in diameter, or three wheels, any one of which is more than twenty inches in diameter.”1 In Washington, these are NOT “bicycles”:

(1) Unicycles.

(2) Some folding bikes, bikes and trikes for little kids, acrobats and clowns; namely, cycles with wheels fewer than 16 inches in diameter.

(3) Wheelchairs.2

(4) Skateboards, human-powered scooters, soap-box racers, wagons, strollers, roller skates and roller blades, and other motorized or non-motorized wheeled contraptions not conforming to RCW 46.04.071. (5) A ny bike with a motor of any kind – which now includes increasingly available bicycles with battery assistance, and which fall within the definition “Motor-driven cycles”3 or “Motorcycle”4. All “bicycles” are “vehicles” within the meaning of the Revised Code of Washington, but are exempt from vehicle title, registration, dealer/manufacturer, and taxation requirements.5

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This booklet concerns itself solely with bicycles as defined by statute.

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II. WHAT IS REQUIRED OF A BICYCLIST? “I relax by taking my bicycle apart and putting it back together again.” – Michelle Pfeiffer, Actress You don’t need a license to ride a bicycle in Washington. Equipment laws are fairly basic. Though the state has a few such laws, the laws can be – and occasionally are – supplemented by municipalities. Freedom from regulation means there are almost infinite opportunities to customize a bicycle.

a. Required Equipment

Equipment laws in Washington might surprise some people: Lights and Reflectors. Bicyclists who ride “during hours of darkness” must have a white front light visible from at least 500 feet away, and may have a red rear light in addition to a red rear reflector.6 In Seattle and Bellingham, the rear reflector must be visible from 600 feet when illuminated by low beams, and the rear light must also be visible for 500 feet.7 In general, lighting rules become effective 30 minutes after sunset until 30 minutes before dawn, or when persons and vehicles cannot be clearly seen at 1000 feet due to “insufficient light or unfavorable atmospheric conditions” (presumably such as riding in a tunnel, or during an eclipse or a volcanic eruption).8

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Helmets. Helmets are not required by state law. In King County, the helmet law is contained in sub-section 9.10.010(A) of the county health code. A list of municipalities that require helmets can be found here: http://www.wsdot. wa.gov/bike/helmets.htm.

Photo by Jeff Archer

Brakes. Believe it or not, Washington state law does not require bicycles to have brakes. And many fixed-gear bicycles (known popularly as “fixies”) are manufactured without what most people would think of as a brake – namely, a brake independent of the propulsion mechanism – such as a caliper brake, a disc brake or a coaster brake.

But a municipal code may require brakes. In Seattle and Bellingham, “Every bicycle shall be equipped with a brake which will enable the operator to make the braked wheels skid on dry, level, clean pavement.”9 In Portland,

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Oregon, a fixie operator was prosecuted for failure to have such a brake.10 Fixies do not have a so-called “freewheel” – the component that allows coasting. Rather, the pedals’ turning is fixed to the turning of the wheel. In other words, the faster the wheel turns, the faster the pedal turns in direct proportion, and vice versa. Fixie operators lose control if their feet leave the pedals. Fixies can be very difficult to slow or stop, especially in a sudden manner and at higher speeds such as those encountered going down steep hills, because they require the operator to brake using leg strength to push backward against the turning pedals. While some fixies also have a hand brake or two, some do not.

b. Prohibited Equipment? /Headphones/Earbuds/ Sunglasses

Drivers of motor vehicles may not wear headphones (or watch television while driving),11 but bicyclists are not similarly restricted. Nevertheless, a bicyclist who is wearing headphones or earbuds and is in a collision caused in part by the fact that the bicyclist could not hear traffic may be found to share fault. (Note that unimpaired hearing will not necessarily allow a bicyclist to hear approaching traffic. Variables such as relative speed and angle between the bicyclist and noise source, and the nature of the noise source, can be important factors. Where ability to hear traffic is an issue in a lawsuit, hiring an audiologist may be a good idea. But an expert might not be needed if the cyclist’s ability to hear surroundings does not suggest the

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cyclist is at fault. For example, a cyclist operating properly within the right of way who is struck from behind should not, under most circumstances, be charged with failure to hear and avoid. Under other circumstances, a headphonewearing cyclist may give insurers and opposing parties an excuse to delay and/or avoid resolution of the injury claim.) Similar arguments could be made with respect to a cyclist who wears sunglasses in dark conditions. Cyclists often wear protective lenses to shield against road debris, insects, and wind. Interchangeable lenses for different lighting conditions are often purchased as an option. Because glasses protect the eyes, and no statute specifically prohibits sunglasses, the argument that they made the wearer negligent seems unlikely to succeed, except in rare situations. For instance, occasionally signs at tunnel entrances advise cyclists to remove their sunglasses before entering.

c. What part of the roadway is open to bicyclists?

In general: Bikes to Keep Right. Bicyclists who ride “at a rate of speed less than the normal flow of traffic at the particular time and place shall ride as near to the right side of the right through lane as is safe except as may be appropriate while preparing to make or while making turning movements, or while overtaking and passing another bicycle or vehicle proceeding in the same direction.”12 • E xception. Regardless of speed, a bicyclist on a one-way road with two or more marked lanes, other than a limited-

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access highway, may ride as close to the left of the left through lane as is safe.13 What is “safe” and “appropriate” is a matter of interpretation. Many experienced bicyclists will leave a safety margin between the right edge of the road and/or parked traffic. This allows the rider to avoid debris that collects at the road edge, and decreases the chance of being struck by a car door suddenly opened,14 or by a car or pedestrian coming crosswise into the rider’s path. Such a safety margin also increases “presence” on the roadway: motorists approaching from behind will be forced to slow and pass the bicyclist safely, perhaps by changing lanes, rather than by trying to squeeze by within the lane they both occupy, which might lead to striking the bicyclist.15 Other bicyclists stay as far right as possible nearly always. They are concerned that by “taking the lane” they might encourage road rage among motorists, and/or be “rearended.” They hug the road’s edge as closely as possible. Doing that subjects them to the other dangers mentioned.

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ProfDEH

Bicyclists operating on roadways are subject to the Rules of the Road, discussed below. Limited Access Highways (Freeways). Prudent bicyclists usually travel freeways only when no other practical options exist. Under Washington law, â&#x20AC;&#x153;Bicyclists may use the right shoulder of limited access highways except where prohibited. The department of transportation may by order, and local authorities may by ordinance or resolution, with respect to any limited access highway under their respective jurisdictions, prohibit the use of the shoulders of any such highway by bicycles within urban areas or upon other sections of the highway where such use is deemed to be unsafe.â&#x20AC;?16 The department of transportation (or local authority) must erect and maintain traffic control devices

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in such restricted areas.17 (Of course, the DOT’s failure to deem a highway “unsafe” does not make it safe.) Freeway shoulders are usually littered with a huge variety of dangerous debris. Moreover, cyclists using these areas are subject to injury from flying objects kicked up by motorists’ tires, and to being destabilized by pressure waves from passing trucks, and possibly natural hazards such as ice and falling rocks. Even the U.S. Department of Transportation warns, “It is important that debris be cleared from facilities used by cyclists.”18 Bicycle Lanes. Bicycle lanes can take many forms, which are discussed below in Section V – Municipal Liability: Unsafe Streets and Sidewalks. The increasing existence of bicycle lanes may confuse motorists into believing bicyclists are required to use them, when in fact that is not true. Under Washington state law, use of bicycle lanes is optional. “A person operating a bicycle upon a roadway may use … any specially designated bicycle lane if such exists.”19 Bicyclists are free to choose to ride in traffic through lanes, on the shoulder, or in the designated bicycle lane.20 Legitimate safety considerations may motivate a cyclist to ride outside the designated bicycle lane.21 When bicycles do use bicycle lanes on a roadway, they remain subject to the Rules of the Road.22 By law, a designated bicycle lane is protected, at least somewhat, from intrusion by motorists. Seattle Municipal Code 11.53.190 provides, “The operator of a motor vehicle

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shall not drive in a bicycle lane except to execute a turning maneuver, yielding to all persons riding bicycles thereon.” That Seattle code provision has not been adopted by the state as a whole. Even so, “The driver of a vehicle approaching a pedestrian or bicycle that is on the roadway or on the right-hand shoulder or bicycle lane of the roadway shall pass to the left at a safe distance to clearly avoid coming into contact with the pedestrian or bicyclist, and shall not again drive to the right side of the roadway until safely clear of the overtaken pedestrian or bicyclist.”23 City or county ordinances may prohibit the operation in bicycle lanes of other types of vehicles, such as golf carts,24 or electric-assisted bicycles and motorized foot scooters.25 Sidewalks and Crosswalks. Washington state law provides: “Every person riding a bicycle upon a sidewalk or crosswalk must be granted all of the rights and is subject to all of the duties applicable to a pedestrian by this chapter.”26 See generally, “Rules of the Sidewalk,” Subsection 2.e., below. “Anything but the Road”. Bellingham is something of an outlier jurisdiction, in that it requires bicyclists to stay out of the street: “Wherever a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use such path and shall not use the roadway.”27

d. Rules of the Road

Bicycles are subject to the Washington Rules of the Road STRITMATTER KESSLER WHELAN

set forth in Chapter 46.61 RCW, the same rules that apply to motorists.28 A bicyclist’s failure to obey those rules can result in a citation.29 Still, Washington courts recognize that those rules don’t answer all questions involving bicycle operation. Judicial decisions acknowledge that bicycle laws in this state are not “a model of clarity.” The courts have invited the legislature to clarify them, but without much success.30 One notable difference between cars and bicycles in Washington is that on a roadway, bicyclists may ride no more than two-abreast in a single lane.31 “[O]n paths or parts of roadways set aside for the exclusive use of bicycles,” there is no restriction to riding two-abreast.32 (Multipleuse paths, such as the Burke-Gilman Trail, are not set aside exclusively for the use of bicycles; so, on them, no more than two-abreast is allowed.) Also, a bicyclist may ride on the roadway shoulder, and may ride in any designated bike lane.33 Some special Rules of the Road apply to bicyclists: • RCW 46.61.110(2) forces vehicles overtaking bicyclists to give them a safe margin when passing. Specifically, the statute provides, when overtaking and passing vehicles going in the same direction, “[t]he driver of a vehicle approaching a pedestrian or bicycle that is on the roadway or on the right-hand shoulder or bicycle lane of the roadway shall pass to the left at a safe distance to clearly avoid coming into contact with the pedestrian or

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bicyclist, and shall not again drive to the right side of the roadway until safely clear of the overtaken pedestrian or bicyclist.” • RCW 46.61.125(1)(d) provides that vehicles shall not drive on the left side of the road (e.g., cross the centerline to pass another vehicle) if doing so poses a danger of colliding with a visible oncoming bicyclist – that is, “[w]hen a bicycle or pedestrian is within view of the driver and is approaching from the opposite direction, or is present, in the roadway, shoulder, or bicycle lane within a distance unsafe to the bicyclist or pedestrian due to the width or condition of the roadway, shoulder, or bicycle lane.” The Rules of the Road do not define a minimum amount of distance that will be considered safe when passing a bicyclist. Some bicycle organizations, such as the Cascade Bicycle Club, promote giving cyclists at least a three-foot margin. Although Washington statutes prescribe a duty of safety in some particular situations as set forth above, the statutes do not prescribe a general duty of care owed by a motorist to a bicyclist. However, local law may do so. For example, the Seattle Municipal Code provides: SMC 11.58.310 REGARD FOR PEDESTRIANS. Every operator of a vehicle shall exercise due care to avoid colliding with any pedestrian or person riding a bicycle

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upon any roadway and shall give warning by sounding the horn when necessary. Even so, Washington state law does require motorists to yield to bicycles in one specific situation: a bicyclist using a sidewalk.34 This rule applies most often when a vehicle is using a driveway that crosses a sidewalk. Drivers entering from the roadway often will not adequately scan for cyclists on a sidewalk, a job which may be hampered by a line of parked cars along the roadway. Drivers intending to enter roadways and intent on watching for road traffic to clear may not see the bicyclist who suddenly passes on the sidewalk in front of the vehicle. But the cyclist protected on the sidewalk may lose favor when that path crosses the roadway: The Seattle Municipal Code specifically recognizes that bicycles may intrude into a space too quickly for a motorist to react. “No person operating a bicycle shall suddenly enter a crosswalk into the path of a vehicle which is so close that the driver cannot yield safely.”35 Unfortunately, some bicyclists who think they have the right of way on a sidewalk tend to think they still have it when crossing a street, especially in a crosswalk, and so may be insensitive to that caveat. This behavior is exacerbated by the presence of signs advising of a crossing, and/or by polite motorists who, despite having the right of way, stop and wave a bicyclist across the road – not thinking that another motorist with the right of way may come through the intersection at that exact moment.

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Like a motorist, a bicyclist must yield the right of way to a pedestrian using the sidewalk or a crosswalk.36 When thinking of the bicyclist as a “motor vehicle,” this rule is easily understood. The statute does not suggest that pedestrians are always superior in right to bicyclists. Rather, the law’s language seems to mean that only pedestrians entitled to the right of way must have the right of way yielded to them. For example, a pedestrian who is in a crosswalk but crossing against a traffic light does not have the right of way, and this statute would not apply. But no reported Washington case to date addresses that issue.

e. Rules of the Sidewalk

FaceMePLS

When bicycles are on sidewalks and in crosswalks, whether or not they are dismounted from (“walking”) their bikes, they are acting as pedestrians and must obey the same laws.37

Some of those laws apply state-wide, but sidewalk traffic rules tend to be highly influenced by local culture, meaning

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municipal law must be checked any time a bicycle is involved in a crash on a sidewalk: • Bicyclists must obey traffic signals and traffic control devices unless otherwise directed by a traffic or police officer.38 • Bicyclists shall not suddenly leave a curb and move into traffic so that the driver cannot stop.39 Similarly, the Seattle Municipal Code provides, “No person operating a bicycle shall suddenly enter a crosswalk into the path of a vehicle which is so close that the driver cannot yield safely.”40 • Bicyclists crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.41 • In municipalities that have adopted the Washington Model Traffic Ordinance, Chapter 308-330 WAC, a bicyclist must yield the right-of-way to a pedestrian.42 In addition, some municipalities have adopted more specific rules that address co-existence on the sidewalk. In Seattle, “Every person operating a bicycle upon any sidewalk or public path shall operate the same in a careful and prudent manner and a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of pedestrian traffic, grade and width of sidewalk or public

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path, and condition of surface, and shall obey all traffic control devices. Every person operating a bicycle upon a sidewalk or public path shall yield the right-of-way to any pedestrian thereon, and shall give an audible signal before overtaking and passing any pedestrian.”43 Spokane’s rule is similar.44 This rule is common throughout the state. In Bellevue, riding on the sidewalk is allowed if it does not “unreasonably inconvenience pedestrians.”45 In Yakima, pedestrians in parks have right-of-way over bicycles, on pain of a $250 penalty.46 • In municipalities that have adopted the Washington Model Traffic Ordinance, a person may not ride a bicycle in a “business district” or where restricted or prohibited by traffic control devices.47 In Spokane, which has adopted the model ordinance, bicycle riding is also not permitted in retail zones or congested districts as defined by the code.48 A similar rule applies in Redmond, which has designated bicycle/pedestrian lanes within the city center zone.49 • A s for parking a bicycle, “No person shall park a bicycle upon a highway other than: (1) Off the roadway except in designated areas; (2) Upon the sidewalk in a rack to support the bicycle; (3) Against a building; or (4) In such manner as to afford the least obstruction to pedestrian traffic.”50 In Spokane, bicyclists may not “place” their bicycles in ways that obstruct “reasonable pedestrian traffic” or vehicles emerging from alleys or driveways.51 In

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a case involving tripping over a bicycle, or a motor vehicle collision where a bicycle is a causal obstruction, these provisions could prove useful.

f. Bicyclists in Crosswalks

Crosswalks present a legal quandary: Is the crosswalk an extension of a “sidewalk” or is it part of a “road”? Bicyclists are specifically excluded from the definition of “pedestrian” set forth in RCW 46.04.400. Even so, the Rules of the Road do not apply to a bicyclist in a crosswalk “when they use crosswalks to traverse a roadway in the same manner as a pedestrian”, which arguably means when they are dismounted and walking their bikes.52 A bicyclist (and a pedestrian) while using the crosswalk must exercise ordinary care for his or her own safety.53 For instance, such a person must not “suddenly leave a curb or other place of safety and walk, run, or otherwise move into the path of a vehicle which is so close that it is impossible for the driver to stop.”54 A bicyclist traveling across (perpendicular to, or turning through) a crosswalk is subject to the same rules as a motor vehicle, because no exception to the general proposition that bicyclists must obey the Rules of the Road exists for that situation.

g. Mixed Use Paths and Trails

Mixed use paths present numerous challenges to the lawyer

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representing an injured bicyclist, or to a pedestrian injured by a bicyclist. Not the least of these are pathway design and maintenance issues, which are discussed in Section V – Municipal Liability: Unsafe Streets and Sidewalks, below. Here we address traffic.

i. Right of way

In Seattle, bicyclists on public paths must yield to pedestrians.55 Although there are infrequent traffic controls on most multi-use trails, the law requires them to be obeyed. With respect to the Burke-Gilman Trail, there has been some controversy with regard to stop signs favoring cross traffic (principally, residential driveways and access roads) and disfavoring the much more abundant traffic using the Burke-Gilman trail. Those signs are routinely ignored by cyclists.

ii. Speed limits

Some municipal trails have speed limits, but these are not always posted. Notably, the Burke-Gilman Trail has no speed limit within the Seattle city limits. However, sections that are outside the city but in King County have a “reasonable and prudent” speed rule, for which exceeding 15 miles per hour is not an absolute speed limit, but rather results in a prima facie presumption that the rule has been violated.56 The Seattle City Attorney has determined this provision does not apply in the city. (That provision also invokes the Model Trail User Code of

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Conduct, which the attorney may find useful.) Such limits are frequently ignored by bicyclists intent on physical training, particularly when traffic on the trail is light. The issue has been no more hotly contested than in the city of Lake Forest Park, which liberally issued speeding tickets to cyclists using the Burke-Gilman trail, and resisted safety improvements to the trial fearing they would encourage speedier bicycling.57 iii. Annunciation (Bells, Whistles and “On Your Left”) Some differences of opinion exist in the bicycle safety community with respect to when and how to announce one’s presence on a bicycle to those approached from behind. In general, bicyclists may be prudent to announce their presence when overtaking pedestrians and other cyclists. Municipal codes may require it (e.g., in Seattle, Seattle Muni. Code 11.44.120), but usually are not specific about how to do it. Some use a bell, some a whistle, some bark out “On your left!” While doing any of these things may be helpful, it is also clear that sudden loud noises and/or announcements tend to startle many pedestrians who are out for a casual stroll, are engaged in conversation with partners, have headphones or earbuds on, or due to young or old age, or impaired physical condition, are not sufficiently aware or agile to react quickly and appropriately; and perhaps most important, have not taken the time to consider that such warnings might be coming, to know what they mean, and to anticipate how to react. For example, persons who suddenly hear “on your left!” may, ironically, jump or veer toward their left, into the path

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of the oncoming bicyclist. New, infirm, slow, or merely shy bicyclists being overtaken may react to surprise by swerving off the path, so as to cause harm. Thus, one can imagine that in a lawsuit arising from such a collision, the fact that the bicyclist shouted, “On your left!” may harm that person’s case, or at least may not help it. For that reason, some have suggested that if a pedestrian is to be startled, it is better to do so by passing by silently. But probably the best thing is to act in a way that minimizes the chance of startling the overtaken person at all. A bicyclist approaching another from behind should slow down and audibly signal his or her presence with a noisemaker or perhaps other words, such as “behind you” or, “bike passing,” or even simply, “excuse me,” long enough before passing to give the human obstruction time to appreciate the situation and react appropriately. (The ringing of warning bells on bicycles is common in Amsterdam where bicyclists and pedestrians frequently intermix). Sometimes even the most appropriate announcements are ignored by pedestrians who believe – rightly or wrongly – that they have a superior legal right to the path, that they have no legal obligation to comply with such a request, or that they have the right to enforce their understanding of the law (such as a speed rule) by blocking those whom they believe are in noncompliance, or who simply do not like bicyclists. A frustrated bicyclist who forces physical confrontation or near confrontation and is injured and/or injures another as a result is not likely to receive a sympathetic audience from any tribunal.

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h. Traffic Control Signals

Bicyclists must obey traffic control signals. Many modern traffic control lights are sensitive to the presence and flow of traffic. For example, red lights can change to green when they detect stopped traffic. Cyclists may become frustrated waiting for a signal that does not detect their presence. Both motorists and cyclists can be frustrated by a cyclist who occupies the position in the lane closest to the intersection but does not trigger the traffic signal’s sensor. When a cyclist is first in line at the intersection, a car behind the cyclist may stay far enough behind so as not to trigger the traffic light’s car detection sensor. As a result, the light does not change, to the frustration of all who are waiting. The inability of a traffic control light to detect the presence of a cyclist can promote collisions by causing cyclists to give up hope that the light will change, and therefore disobey the light. The failure of the light to change in response to a cyclist’s presence is sometimes known as a “dead red” light. The Washington Legislature has taken two approaches to dealing with this problem. In 2009, the Legislature passed a statute applicable to vehicle-activated traffic control signals,58 which mandates such signals be upgraded to detect bicycles, but with an important caveat: “subject to the availability of funds.” Where lights are capable of detecting bicyclists, the pavement at the intersection is usually painted with a symbol – a small white “T” or “X”, or bicyclist icon with

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vertical lines above and below it – over the spot where the bicyclist must be located in order to be detected. Under the spot is a metal detector that must be carefully calibrated to detect a bicycle. Unfortunately, that spot is usually in the middle and front of the lane, and many casual bicyclists are unaware of this fact, and/or unwilling to place themselves in a lane position where they can be on the “T” or even see it. Some traffic signals have motion detectors, sometimes called “traffic loops”. All new vehicle-activated traffic control signals that are “design complete and put in operation after July 26, 2009, must be designed and operated, when in use, to routinely and reliably detect… bicycles, including the detection of bicycles in bicycle lanes that cross an intersection.”59 In 2014, the Legislature passed a law that permits motorcyclists who stop and wait through the failure to get a green light “after one cycle of the traffic signal” to proceed through the red light “after exercising due care.”60 (Importantly, the right conferred by this statute only applies to a traffic control signal that in fact uses a vehicle detection device or was inoperative due to the size of the motorcycle. The operator’s subjective belief regarding that fact is irrelevant.) A current bill, SSB 5438, which at this writing awaits the Governor’s signature, seeks to amend the statute to give bicyclists and mopeds the same right. A lawyer faced with a question implicating a “dead red” should send a public disclosure request to the governmental entity responsible for that intersection asking whether any

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reports were previously made that the signal failed to detect a bicycle or motorcycle. The Washington State Department of Transportationâ&#x20AC;&#x2122;s Manual on Uniform Traffic Control Devices for Streets and Highways, Part 9, lists Traffic Control for Bicycle Facilities.61 This manual describes requirements for bicyclist traffic control devices, including signage, road marks, and related matters, and so is an important reference in any case involving a bicycle on a roadway.

i. Hand Signals

Washington law prescribes hand signals: All required hand signals shall be given in the following manner: (1) Left turn. Left hand and arm extended horizontally beyond the side of the bicycle. (2) Right Turn. Left hand and arm extended upward beyond the side of the bicycle, or right hand and arm extended horizontally to the right side of the bicycle. (3) Stop or decrease speed. Left hand and arm extended downward beyond the side of the bicycle.

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State law only requires that the signals “shall be given before initiation of a turn.”62 Some local jurisdictions may have more specific requirements. For example, in Seattle, “Such hand signals shall be given continuously during the last one hundred feet traveled by the bicycle before initiation of a turn, unless during the last one hundred feet both hands are needed to control or operate the bicycle.”63

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j. Specific Activities Deemed Illegal

Municipal codes should be checked where an accident involves a bicyclist who acted in a potentially dangerous manner. For instance, the City of Seattle prohibits some specific misconduct: SMC 11.44.240 CLINGING TO VEHICLES. No person operating any bicycle shall attach the same or himself to any vehicle. SMC 11.44.260 CONTROL. No person operating a bicycle shall carry any package, bundle or article which prevents him from keeping at least one hand upon the handlebars, nor shall he operate the bicycle at any time without keeping at least one hand upon the handlebars. SMC 11.44.220 PASSENGERS. No person shall use a bicycle to carry more persons at one time than the number for which it is designed and equipped, except that a person eighteen years of age or older may carry a child securely attached to his person.

k. Impaired Bicycling

Riding a bike while under the influence of alcohol or drugs is not a crime.64 But doing so may nevertheless be negligent.65

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l. Road Rage

Bicyclists frequently both perpetrate and/or are victims of road rage. The Washington State Patrol encourages people who witness aggressive driving to call 9-1-1. Where intent can be proved, a tort claim for assault is possible. However, the prudent practitioner must always keep in mind the questions of whether alleging an intentional tort will thwart insurance coverage and/or create a problem with establishing joint and several liability under the Tegman doctrine.66

m. Liability for Violations by Children

Parents and guardians are responsible for knowingly allowing traffic violations committed by their wards.67 One can imagine this statute becoming an issue if a child on a family bike ride decides to behave in an undisciplined manner and causes an injury to someone, or possibly only to the child itself.68

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III. COMMON COLLISION SCENARIOS “Refrain from throwing your bicycle in public. It shows poor upbringing.” – Jacquie Phelan, Professional Road Racing Cyclist Unfortunately, some types of bicycle collisions happen with regularity. Below, we discuss bicycles coming into contact with motor vehicles and animals, because both of these types of incident usually develop quickly and are often influenced by an inability to communicate effectively prior to the incident so as to avoid it. Other scenarios include bicycle vs. bicycle, bicycle vs. pedestrian, and singlebicycle-only collisions. We do not explore the latter types of collisions in detail, but have one observation: If the incident occurs during a formally organized and/or sponsored ride, the lawyer should always inquire about whether the injured cyclist signed a release of liability. If so, get a copy and review it for applicability and enforceability. Keep in mind that under Washington law, with few exceptions, releases are generally enforceable if signed by adults, but generally are not enforceable if signed by or on behalf of minors.

a. Bike v. Motor Vehicle

Bicyclists are often hit while a car is turning, passing, opening a door, or pulling a trailer.

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i. Turning right or left Motor vehicles frequently overtake bicyclists on the street and then turn across their paths. When this occurs, the motorist may have gained the right of way in the sense that this vehicle is now ahead of the bicyclist, provided the motorist has complied with the statute requiring him or her to leave space before cutting off the bicyclist.69 A mistake often made by motorists is to respect the bike lane all the way into the intersection, meaning that a turn made at the intersection across the bike lane may cut off a bicyclist who does not see a turn signal on the motor vehicle, or who cannot, upon seeing such a signal, avoid being cut off or even run over during the turn (sometimes called a “right hook” collision). To avoid such a scenario, the Seattle Municipal Code permits (but does not mandate) that a driver may enter the bike lane at a turn: SMC 11.53.190 DRIVING IN A BICYCLE LANE. The operator of a motor vehicle shall not drive in a bicycle lane except to execute a turning maneuver, yielding to all persons riding bicycles thereon. The Rules of the Road’s mandatory procedure for turning right remains in effect: “Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.”70 Accordingly, before turning right, a prudent motor vehicle driver should pull into the bike lane so as to be as close to the curb as

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possible, when it is safe to do so. Cities without such a code provision are, by their omissions, promoting right hook collisions. Bike lane markers that are not dashed or do not disappear sufficiently far from the intersection to indicate to drivers that they should merge into the bike lane will further confuse drivers. Bicyclists need to be aware that longer vehicles, such as trucks, buses, and stretch limousines, often must start the turn far from the curb in order for the rear wheels, which will track a shallower turn arc, to clear the curb. Such a turn may take the rear of the motor vehicle across a bike lane very close to the curb – and perhaps over a rider at the curb – even though the front of the vehicle crosses the bike lane farther ahead in the intersection. Drivers of long motor vehicles who misjudge this effect or are too long to get through the intersection on the road sometimes even run their rear ends over the sidewalk. By contrast, a different legal rule applies to turning left, which poses a conundrum when the bicycle lane is on the left side of one-way traffic (as it now is on Second Avenue in Seattle). According to RCW 46.61.290, “The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of the vehicle.” Distance to the curb is not mentioned, thus leaving unresolved the ambiguity inherent in Seattle Municipal Code 11.53.190.

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ii. Parallel direction crashes

(a) Passing on the right

The Seattle Municipal Code allows a bicyclist to pass a vehicle or a bicycle on the right if it is safe to do so.71 As a general proposition, bicyclists tend to stay to the right side of the road. As a result, they frequently pass motor vehicles on the right, especially when traffic is slow or stopped and the cyclist can make progress down the road, even when the motor traffic occupies all lanes. The “lane splitting” prohibitions of RCW 46.61.608 applicable to motorcyclists72 do not apply to bicyclists. In fact, RCW 46.61.608(2) expressly allows a motorcycle to overtake a pedestrian or a bicyclist in the same lane “while maintaining a safe passing distance of at least three feet.”

(b) Rear-end collisions

Rear end collisions are, unfortunately, increasingly common due to distracted driving. Such collisions can have disastrous consequences for cyclists.

iii. Car doors

A bicyclist who nears motor vehicles parked along the roadside may encounter a door suddenly opened into the bicyclist’s immediate path. The resulting collision can result in severe injuries.

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Fortunately, Washington law favors the cyclist in that scenario. A driver or passenger who opens a car door into a traffic lane has a duty to look for oncoming traffic before doing so. The Washington Rules of the Road provide: No person shall open the door of a motor vehicle on the side adjacent to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle adjacent to moving traffic for a period of time longer than necessary to load or unload passengers.73 Many municipalities restate this rule within their code provisions.

iv. Trailers

Trailers can be very hazardous to bicyclists. Even where a motor vehicle pulling a trailer in a straight line may pass a bicyclist by a safe margin, the driver may not account for the fact that the trailer may be wider than the towing vehicle, with disastrous results for the cyclist. Of course, a trailer in a turn travels in a tighter circle than the lead vehicle, which can also side-swipe or even run over a cyclist. This hazard can be exaggerated when the towing vehicle and trailer are separated by a large distance, such as a double dump truck configuration, because the cyclist being overtaken may not immediately appreciate that the lead vehicle is towing a trailer at all. A vehicle overtaking a cyclist

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is legally obliged to allow a safe margin.74 Thus, any incident in which a cyclist is struck by a passing trailer should be presumed to be one of liability against the towing driver. b. Animals

Takato Marui

Animals, especially dogs, are well-known to attack bicyclists. Wild animals such as deer and squirrels, and even bears, can race across a bicyclistâ&#x20AC;&#x2122;s path, or even directly into the bicycle, and cause serious injury.

Dog on a bicyclist in Osaka, Japan. (Photo by Takato Marui)

Dog leash laws and other aspects of animal control are usually addressed by county and/or municipal regulations.75 Washington case law is replete with cases involving dog bites and allegedly dangerous dogs. Interestingly, at this writing there is no reported Washington case of a dog causing injury to a bicyclist. In Johnston v. Ohls, 76 Wn.2d 398, 457 P.2d 194 (1969), a dog caused a motorcycle to crash.

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There, the parties disputed whether the dog attacked the plaintiff, chased the motorbike, or merely was crossing the street. The dog had previously bitten children and chased bicycles and motorcycles. The court held that defendants are liable not for negligence in the manner of keeping a dangerous dog, but for keeping it at all if they knew or should have known the dog was vicious. If they do, they are strictly liable for any harm caused by it. â&#x20AC;&#x153;Any injury caused by such an animal subjects the owner to prima facie liability without proof of negligence.â&#x20AC;?76 Though collisions between bicyclists and farm animals are rare, it is worth noting that Chapter 16.24, which regulates livestock, and especially RCW 16.24.070, which prohibits unsafe movement of livestock over a public right-of-way, as well as Chapter 16.60 RCW, which regulates fences, may come into play in such a case.

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IV. INSURANCE “Ride as much or as little, or as long or as short as you feel. But ride.” – Eddy Merckx, Legendary Professional Road Bicycle Racer After a collision, the bicyclist client wants to know (1) Is the damage to my bike covered? (2) Are my special damages (principally, medical expenses and wage loss) covered? (3) Are my general damages covered? and (4) Am I covered for any damage I may have caused to others? As with all insurance, the first rule is to read one’s insurance policy or policies. A corollary is always to give timely notice of a potential claim. A comprehensive and detailed explanation of insurance principles that may find application to bicyclerelated losses is beyond the scope of this booklet. But some general considerations are set forth below. Bicycles and their riders are rarely insured under standalone policies, though some such policies are available for purchase. Even those policies, however, generally exclude coverage for collisions involving motor vehicles. Comprehensive bicycle policies sometimes cover bicyclespecific losses, such as torn cycle clothing, canceled bicycle event fees, shipping damage, and rental bicycles. Some policies consider themselves primary on a loss, some secondary, and some even mimic the primary policy’s deductible. For instance, if a medical policy has a high deductible, then the bicycle insurance’s medical coverage

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may not pay until that deductible is satisfied. Some bicycle insurance “follows the bike,” which means that an avid bicyclist with multiple bicycles should be sure each of the bikes that the owner wants covered is individually listed on the bicycle policy.

a. Property Loss

Homeowner’s and renter’s insurance policies usually cover specified perils, including theft, vandalism, and accidental damage. However, homeowner’s policies usually do not cover crash damage. Some limit coverage to thefts from the insured residence, and some cover theft worldwide. Even so, a homeowner’s deductible may eclipse the bicycle’s value, may not cover replacement, or may limit the coverage on “expensive” bicycles unless a high-value rider has been purchased. Some lock manufacturers will pay a theft coverage deductible if the lock has been registered with the manufacturer. The value paid on property loss to a bicycle is often actual cash value; namely, what the item is worth, considering depreciation. Some homeowner’s policies allow replacement value. Documentation of loss is sometimes required. Receipts, photos, and a police report can be helpful.

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b. Personal Injury

When a bicyclist is injured, his or her personal injuries are usually covered (subject to policy limitations) by health insurance, and may be covered by automobile insurance, provided coverages have not been waived by the policy owner. Infrequently, the bicyclist has a stand-alone bicycle policy that covers injury. i. PIP Under Washington’s statute governing Personal Injury Protection (“PIP”) insurance, a bicyclist falls within the definition of a “pedestrian”; namely, “a natural person not occupying a motor vehicle …”.77 Under most medical payment (“MP”) and/or PIP coverages offered by automobile insurance, a bicyclist struck by an automobile is an “insured”78 who will be covered under both the cyclist’s policy and the opposing driver’s policy. Note, however, that PIP benefits may be denied if the cyclist is deemed to be involved in racing or a speed contest, or practice for such a contest, where the policy excludes such activity from coverage. See RCW 48.22.090 (authorizing such an exclusion and other exclusions). Note that a bicyclist who runs into a parked vehicle is not “struck by” the vehicle, and thus is not eligible for PIP coverage as a “pedestrian.”79 If PIP is applicable, it will cover (1) medical and hospital charges up to the stated limit (currently, between $10,000 and $35,000) 80 ; (2) funeral expenses at least at the statutory

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minimum (currently $2,000) 81; (3) income continuation benefits (currently, between $10,000 at up to $200 per week, and $35,000 at up to $700 per week) 82 ; and (4) “loss of services benefits” of at least $5,000, paid at up to $200 per week, and up to $14,600 if requested; which may be capped at $40 per day at current rates.83 ii. UIM A bicyclist struck by an uninsured or underinsured motorist will be out of luck if the bicyclist is not also an insured under a motor vehicle policy. But if the bicyclist has uninsured/underinsured motorist (“UIM”) coverage, then likely a claim can be made. The usual considerations attendant to UIM coverage apply.

c. Liability

Homeowner’s policies offer liability coverage, but generally exclude intentional wrongdoing, such as initiating a damaging road-rage incident. So, a bicyclist who negligently runs through a stop sign causing a motor vehicle to slam into a tree may be covered under the cyclist’s homeowner’s policy. However, a cyclist who is angered by the fact that a stopped car protrudes into an intersection, and who decides to express his anger by denting the car’s hood with his fists, will generally not be covered. Similarly, a cyclist hit by a bullet fired from a moving vehicle, or whose shoulder is shattered by an overtaking driver who intentionally tried to “scare” or “graze” the cyclist with the

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wrongdoer’s passenger mirror, may not be able to recover from the wrongdoer’s homeowner’s policy or auto policy. Even so, victims of crimes may have recourse to crime victim compensation funds.

d. Business Insurance

With an increasing number of people riding bikes in the performance of their job duties – whether as dedicated bicycle messengers or delivery people, or simply as a means of reaching (or even holding) an offsite meeting – lawyers representing bicyclists may wish to check the employer’s business owner’s policy, commercial general liability policy, property policy, motor vehicle policy, and excess and/or umbrella policies, for possible coverage. Also, lawyers representing bicyclists involved in incidents while performing commercial activities should be sensitive to the bicyclist’s possible liability to the employer for any negligence on the bicyclist’s part, and for the possibility that coverage may be reserved or denied if the incident occurs while the bicyclist is engaged in unauthorized activity or potential intentional wrongdoing, such as a road rage incident.

e. Settlement Considerations

Remember, as in all injury matters regardless of whether bicycles are involved, never settle (or allow your client to settle) a claim without conducting a reasonable inquiry to identify the nature and amounts of potential

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subrogated interests and to provide reasonable notice to subrogated parties of the impending settlement. The usual considerations involved in settling claims under the types of insurance involved â&#x20AC;&#x201C; for example, UIM claims procedures, ERISA subrogation rules â&#x20AC;&#x201C; will apply regardless of the fact that a bicyclist is involved.

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V. MUNICIPAL LIABILITY: UNSAFE STREETS AND SIDEWALKS “Cycle tracks will abound in Utopia.” – H.G. Wells, Author

The trend for a number of progressive cities is to promote themselves as “bicycle friendly”. The end goal of reducing traffic congestion and motor vehicle pollution by replacing cars with bicycles is laudable; the problem is that the city council or chamber of commerce too often fails to coordinate with the municipal department of transportation in traffic planning for bicyclists, as well as street maintenance and repair with bicycles in mind. Bicycle commuting is popular in urban areas due to the “bicycle shed” distance of three miles – “the distance most people are willing to travel before looking to other travel options.”84 On these shorter trips, the bicycle is STRITMATTER KESSLER WHELAN

time-competitive with the car. And, of course, charges for downtown parking make for a costly daily commute by car. In Seattle, for example, 20,658 bicyclists used the city’s streets during peak hour in 2012.85 A recent Seattle Department of Transportation survey determined that about 29% of the population over 16 – some 158,000 residents – bicycle at least occasionally, with 97,000 of these being “regular riders”.86 In Portland, 6.1% of residents rely on city streets to bicycle to work.87 Minneapolis ranks second with 4.5% commuting to work by bicycle, followed by Seattle and Washington D.C. at 4.1%.88 While a recent poll of Seattle cyclists indicated that “weather” is one basis for not riding to work more often, the primary reason given was “Don’t feel safe”.89

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a. Negligence in Failing to Maintain and Repair Streets and Sidewalks Too often, well-meaning cities subject the bicyclist to rough street surfaces that much heavier, four-wheeled vehicles readily traverse, but which can put cyclists at risk of severe injury. Too often, as in Seattle’s downtown core, even lanes designated for bicycles are rife with rutting, deep cracks and potholes.

Cracks in Seattle lane designated for bicycle travel.

Although a number of cities are working on bicycle route planning,90 the lag time between developing the plans and implementing them puts the municipality behind the power curve in meeting current needs for “bicycle friendly” street and sidewalk surfaces. The primary problem inheres in the fact that the planning personnel developing bicycle route networking have very little to do with the maintenance divisions within

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their various departments of transportation or public works, leaving road repair crews to address pavement conditions based on traditional criteria applicable to cars and trucks. The consequences experienced in Seattle: bridge grates that entrap narrow bicycle wheels, that in turn abruptly stop the forward movement of the bicycle, and send the cyclist over the handlebars and onto the bridge deck with resulting quadriplegia; a sidewalk panel that has sunk, creating a tripping hazard for a slightly angled front bicycle wheel, with the same abrupt stop and resulting quadriplegia; potholes and rutting in a lane designated for bicycles that cause a cyclistâ&#x20AC;&#x2122;s loss of control and, again, quadriplegia.91

b. Unsafe Mix of Cars and Bicycles

In addition to inadequate attention to street maintenance and repair, citiesâ&#x20AC;&#x2122; failure to marry bicycle and car traffic through thoughtful bicycle routes, lanes and traffic signals can produce chaos and collisions, with the bicyclist always the loser in these encounters. And simply painting a bicycle icon graphic on a downtown traffic lane does little to bring order. As the popularity of cycling grows, particularly in increasingly dense cities, bicycle lanes are becoming more prevalent. They can take many forms. Most often, they are simply a relatively narrow strip defined at the right side of the roadway by a painted stripe and/or a bicycle related

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icon of some kind. Some lanes are painted with a unique color, usually green. Some lanes are physically separated from traffic by a barrier, which may be as flimsy as plastic sticks or as robust as a concrete wall. Official directives to create (and, by implication, to use) bike lanes can be found in municipal codes; for example, the Yakima Municipal Code provides, â&#x20AC;&#x153;Bicycle lanes and pedestrian sidewalks shall be provided along all new or reconstructed arterial and collector arterial streets, where feasible.â&#x20AC;?92 Bicycle lanes tend to encourage cyclists onto the edge of the roadway where they are increasingly exposed to hazardous road debris, entering traffic, opening vehicle doors, sewer grates, cracks and potholes, and other dangerous situations. Often, the municipality that painted the bike lane did nothing to make it safe for bicyclists, such as repairing the road surface, separating the lane from dangerous traffic, designating parking restrictions to improve visibility for traffic entering that roadway, or even simply sweeping the street. Drivers may tend to be more aggressive toward bicyclists who refuse to ride in a visible bike lane, even when the cyclist is doing so to avoid other hazards. Some cities, such as Amsterdam, have successfully addressed the traffic mix by giving bicycles their own lanes, where their use by cyclists is mandatory. Only recently have U.S. cities begun to come to grips with the dangerous mix of the car, the truck and the vulnerable

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bicycle when all are using the same street and lanes at the same time. Seattle’s new Director of the Department of Transportation, Scott Kubly, has essentially confessed that the city’s streets have not been safe for bicyclists: It feels safer right now to bike in midtown Manhattan than in downtown Seattle. It feels safer right now to bicycle in downtown Chicago than in downtown Seattle. 93 He has begun responding to Seattle’s bicycle-unfriendly city streets by installing the protected lanes94 that he helped develop in both Chicago and Washington, D.C., which provide an exclusive lane and traffic signal for bicyclists on the busiest city streets.95

Bicycle Lane, Second Avenue, Downtown Seattle

New York City began installing protected bicycle lanes back in 2007, and currently has over 30 miles of such lanes through the city exclusively for use by bicycles.96

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Washington D.C. began developing protected lane routes shortly thereafter.97 Portland and San Francisco both provide buffered bike lanes, with a separation between car lanes and the protected bicycle lane. 98

With this recognition that (1) the mix of cars and bicycles on streets in an urban core requires attention by municipalities for the safety of their cycling population, and (2) there are solutions for safe travel by bicyclists on city streets, the failure of a municipality to create and implement a plan for the joint use of city streets should subject that municipality to liability for its share of fault for bicyclist injuries.

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c. Duty to Provide Reasonably Safe Streets and Sidewalks for Bicycles Since 1895,99 Washington law has imposed a duty upon a municipality to “exercise ordinary care in the [design] [construction] [maintenance] [repair] of its public [roads] [streets] [sidewalks] to keep them in a reasonably safe condition for ordinary travel.”100 This common law duty to provide the traveling public with safe roads has been consistently re-affirmed over the ensuing 120 years.101

Prior to the Washington State Legislature’s 1973 elimination of contributory negligence as an absolute bar to a plaintiff’s recovery, the duty to provide safe roads extended only to persons who were essentially fault-free. Even after the substitution of a comparative negligence standard, a period of confusion ensued over whether a negligent plaintiff could recover,102 with the issue ultimately resolved in Keller v. City of Spokane, 146 Wn.2d 237, 44 P.3d 845 (2002). The Washington Supreme Court in Keller held that the duty to provide safe roads extended to all travelers, not merely to

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those who were using the roads “in a proper manner and exercising due care for their own safety”, as the former pattern jury instruction (WPI 140.01) had provided. Recently, Washington’s appellate courts have made it clear that, to establish a breach of the duty to provide a safe road, a plaintiff need not present evidence of a particular physical defect or violation of a roadway safety measure; rather, a breach of the duty is based upon the “totality of circumstances”,103 meaning that a municipality may be liable for a collision caused in part by an intersection that has become so busy that it is unsafe without a traffic signal, or a pedestrian crossing-area lacks adequate gaps in vehicle traffic to allow for safe passage without a pedestrian refuge island or some other traffic control device. Finally, the Supreme Court has broadly declared that a city has a duty to “eliminate an inherently dangerous or misleading condition” as part of its “overarching duty to provide reasonably safe roads for the people of this state to drive upon.”104 This duty to provide reasonably safe roads extends to bicyclists. See, e.g., Camicia v. Howard S. Wright Construction Co., 179 Wn.2d 684, 317 P.3d 987 (2014).105 Further, the duty to provide a reasonably safe route for bicyclists includes maintaining and repairing sidewalks.106 In fact, a bicyclist riding on a sidewalk is, by law, granted all of the rights applicable to a pedestrian.107

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The duty to provide reasonably safe streets and sidewalks for bicyclists applies both to traffic operations, including adequate bicycle routes and traffic control devices, and to proper maintenance and repair. The issue then is holding the responsible roadway authority accountable for injuries to bicyclists that were caused wholly or partially by negligent design, maintenance or repair.

d. Case Strategies

Three of our recent successful bicycle injury cases afford a study of the strategies we use in different settings.

i. Case #1: Gendler v. State of Washington

Background: The Montlake Bridge in Seattle, built in 1925, underwent a seismic retrofit project in 1999, resulting in the replacement of steel grate panels along the bridge deck. The contract plans for the deck replacement required a .5â&#x20AC;? width for the two longitudinal seams between the three sets of deck panels.

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Although the Washington State Department of Transportation (WSDOT) had inspectors on site to ensure compliance with contract specifications, they likely viewed the deck as a surface for cars and trucks, forgetting that bicycles constitute a lawful element of the traffic population crossing the bridge deck. As a result, the seam between grid panels exceeded .5â&#x20AC;? in places. The plaintiff was an extremely experienced cyclist, having bicycled in challenging events throughout much of Europe. On October 28, 2007, he rode his bicycle onto the Montlake Bridge, transitioning from the right, outside lane to the inside lane. His intention was to turn left shortly after crossing the bridge. Three-quarters of the way across the bridge, his .8â&#x20AC;? front wheel dropped down into the seam between two adjoining steel grate panels, and then quickly became wedged as the seam narrowed. With his bicycle stopping so abruptly, he was thrown over the handlebars and onto the bridge deck. Upon striking the hard surface of the deck, his spine sustained severe injuries, leaving him paralyzed and immobile. 1. Venue The State of Washington owns the Montlake Bridge and is responsible for maintaining it in a reasonably safe condition. The State can be sued in (a) the county where the plaintiff resides, (b) the county where the cause of action arose, and (c) Thurston County.108 Because King County jurors, particularly in the City of STRITMATTER KESSLER WHELAN

Seattle, are sometimes exposed to aggressive bicyclists – with occasional militant bicycle-rights extremists, or even reckless “messenger service” cyclists who disregard traffic signals, and do so at higher speeds – cases involving the State as a defendant are best brought in Thurston County, where cycling is popularly viewed as pleasurable and not as frenetic, as readily confirmed by focus groups conducted in both Seattle and Olympia. 2. Streamlining the Case through “Laser Motions” Motions for partial summary judgment are particularly effective both in eliminating issues for the jury, and in dismantling affirmative defenses. That was done effectively here through six MSJs, referred to by defense counsel as “laser motions” because they systematically sliced away issues. MSJ #1: The first motion for partial summary judgment sought a declaration by the trial court that bicycles were entitled by law to travel on the bridge roadway, rather than being relegated to the sidewalk. The State did not resist this motion, and summary judgment was entered. It was therefore uncontested that the plaintiff cyclist was lawfully on the bridge deck. MSJ #2: Plaintiff’s second motion for partial summary judgment asked the trial court to find, as a matter of law, that the cyclist was lawfully in the left (or inside) lane at the time he was injured. The State resisted, claiming

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that cyclists are to remain on the right unless passing, and that this particular cyclist entered the left lane sooner than was necessary. Because the cyclist was intending to turn left, the trial court granted summary judgment ruling that the plaintiff was entitled by law to be in the left lane.

MSJ #3: Plaintiff’s third motion for partial summary judgment requested a similar ruling that it was lawful for the cyclist to move from the right lane to the left lane. The trial court so ordered. MSJ #4: The fourth motion for partial summary judgment was brought to establish (1) that the longitudinal seam was wider than the .5” requirement of the contract plans, and (2) that had the seam width been .5” as required, the cyclist’s front wheel (at just over

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.8”) would not have slotted in and become entrapped in the longitudinal seam, with this paralyzing incident never occurring. The trial court so ordered. MSJ #5: The fifth motion for partial summary judgment sought a ruling establishing that the plaintiff-cyclist was fault-free. Because the trial court had already ruled that the cyclist was lawfully on the bridge deck and lawfully in the left lane, that his move from the right lane to the left lane was lawful, and given that it was uncontested that he was traveling within the speed limit (15 mph in a 30-mph zone), the motion focused on the fact that the plaintiff had committed no tortious act that was a proximate cause of the crash or his injuries. The State’s position on contributory fault was that the cyclist should have avoided the admitted “hazard” of the State’s longitudinal seam (the State had in fact referred to the longitudinal seam as a “hazard” on seven occasions in its brief). The motion pointed out that the cyclist had a lawful right to assume that the roadway was reasonably safe, and free of hidden hazards.109 The State was forced to admit that it was arguing that the cyclist should have been able to gauge the difference between a .5” and an .8” seam – 1/10 of an inch viewed from several feet above the deck. The State’s only evidence in support of its position was the testimony of a cycling expert whose human factors opinions as to hazard perception were stricken by the trial court in response to a separate motion by the plaintiff. This motion for partial summary

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judgment was not to be heard until after mediation was concluded. Because mediation was successful, the issue never received a ruling. MSJ #6: Plaintiff’s sixth motion for partial summary judgment asked the trial court to rule that the State had notice of a prior bicycle accident in June of 1999 in which the front wheel of a bicycle became entrapped in a longitudinal seam that was reportedly up to 1” in width due to the apparent misalignment of the bridge grate panels. That motion was denied without prejudice, with the trial court asking for further explanation as to the “materiality” of notice of the prior incident. (As discussed immediately below, notice was indeed material.) 3. Proving Notice Community

Through

the

Bicycling

While the law is clear that a municipality has a duty to provide reasonably safe streets, and a hazardous condition is prima facie evidence of a breach of that duty, notice often plays a critical role in establishing fault. It is well-settled that notice of the existence of the hazard need not be proved where the unsafe condition was created by or resulting from the action of the governmental entity or its employee.110 Nor is evidence of notice needed where there was a duty to anticipate unsafe conditions.111 An issue, of course, is under what circumstances a municipality or its agent should anticipate the development of an unsafe condition.

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In many cases, where a hazardous condition develops over time, the focus is on actual and/or constructive notice.112 As discussed in Case #2 (Remme v. State), infra, constructive notice can be established based on the visibility of the hazard to municipal employees, and/or the passage of time. To establish actual notice, one needs a thorough investigation into prior bicycle crashes at the site of the hazard. This can best be accomplished through the network of the bicycling community. By virtue of the camaraderie of cyclists in the Cascade Bicycle Club and other riding groups, word of a bicycle crash spreads far and wide rather quickly. Here, through the assistance of the cycling community, cyclists were located who were able to establish their own personal encounters with this variable seam in the bridge deck, their loss of control, and their resulting injuries. This established that the subject crash wasnâ&#x20AC;&#x2122;t isolated. More importantly, one cyclist who was injured much earlier in a minor incident caused by his front wheel wedging in the seam actually took photos of both the bridge deck defect and his injuries, and sent them with a letter of complaint to the City of Seattle, believing that this was a city bridge. The City in turn forwarded the complaint to WSDOT, who assigned an employee to inspect the problem and report back. The employee acknowledged in his diary (obtained in discovery) that he intended to inspect, measure and photograph the deviant seam the next day. As documented by his diary, he failed to do so. Both the existence of the hazard and the

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Stateâ&#x20AC;&#x2122;s actual knowledge of it were established, and liability was all but sealed. ii. Case #2: Remme v. State of Washington and City of Seattle Again, the Montlake Bridge. Whereas in the Gendler case the State had suggested that the cyclist should have been on the sidewalk rather than the bridge grates, here the cyclist was in fact traveling on the bridge sidewalk when he encountered a sunken sidewalk panel that abruptly stopped his bikeâ&#x20AC;&#x2122;s slightly turned front wheel, throwing him over the handlebars and onto the concrete sidewalk, causing quadriplegia.

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Photo, taken a matter of minutes after the crash, shows hazard hidden by shadow from bridge sidewall

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1. Use of Storyboards Rather Than ComputerGenerated Animation

Fundamental challenges to the admissibility of computergenerated animation used to reconstruct a collision include deficiencies in the software program used, inapplicability of the program to the conditions of the crash, and/or inputting arguably erroneous data, with each frame or series of frames subject to being discredited for a single discrepancy. The solution is to use a series of selected single frames as storyboards, presented to assist eyewitnesses and the accident reconstruction expert with their trial testimony. Used for illustrative purposes, the storyboards are not subject to the strict scrutiny of frame-by-frame accuracy to meet the criteria for admissibility.

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More importantly, the plaintiff’s storyboards are used as stepping stones to allow jurors to piece together the crash themselves, and thereby “own” the analysis. 2. Venue Again, Thurston County. 113 Neither the State nor the City of Seattle moved for a change of venue on a forum non conveniens basis, which is waived if not sought promptly.114

3. Proving the Municipality’s Constructive Knowledge of the Unsafe Condition

Inherent in the duty to provide reasonably safe streets are regular inspections so that a dangerous condition can be identified and corrected. Against that obvious logic is the claim by SDOT that, due to “limited resources”, it has no regular inspection process, and therefore relies on complaints by the public, frequently after an injury has been caused by the hazard. This head-in-the-sand approach, while arguably negligent on its face, can present the plaintiff with the challenge of proving constructive knowledge in the absence of prior specific complaints from the public. Among the sources available to establish knowledge of the defect in the roadway surface is the municipality’s road log video, with traveling footage generally recorded annually.

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Other sources include cyclists who commute along the subject route and can approximate the age of the defect or hazardous condition.

Photo by WSDOT – April 2010

Another source can be other governmental entities. Here, although the City was responsible for proper maintenance and repair of the subject sidewalk, WSDOT was required by the Federal Highway Administration to inspect its bridge for structural safety every two years. In April of 2010, its Bridge Inspectors identified the subject section of sidewalk as a “tripping hazard” in their report, ranked it as a “Priority 1”, and assigned Repair No. 12213 to correct the hazard. Their photo-documentation of the defect was included in their report (see below). Unfortunately, Repair No. 12213 went into WSDOT’s computer and never came out. Nevertheless, the WSDOT report, filed a full year before the April 2011 subject incident, established a substantial period during which the City of Seattle could and should have been aware of the hazard, and should have corrected it.

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Under Washington law, the existence of a hazardous condition on a public sidewalk for as little as three months has been held adequate to constitute constructive notice as a matter of law.115

4. Duty to See What is There to Be Seen

While the municipality is apt to blame the bicyclist for failing to avoid the defect in the sidewalk or street, arguing that the hazard was there to be seen, it is reversible error to give a WPI 12.06 instruction in the ordinary negligence case where there is no recognized positive duty to look for a particular danger. The Duty of Seeing jury instruction, WPI 12.06 (“Every person has a duty to see what would be seen by a person exercising ordinary care”), is to be given only “where there is a positive duty to look.”116 While there is a positive duty to look “in the case of a disfavored driver entering a street intersection”, there is otherwise no duty to look for a hazard under normal driving, bicycling or walking conditions.117 For example, in Simpson v. Doe, 39 Wn.2d 934, 239 P.2d 1051 (1952), where a theatre patron returning from the ladies’ lounge to the main floor of the auditorium fell when stepping onto a slightly lower level of the floor, the Washington Supreme Court held that there was no duty to look directly down at her feet to notice the difference in the floor levels between the two rooms:

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he evidence shows affirmatively that Ms. Simpson T did not walk out into the lounge without looking where she was going. She hesitated momentarily and looked at a place on the floor about three feet ahead of her. We need not speculate as to whether she would have noted the step had she looked directly at her feet as she passed through the doorway. Where there is no reason to anticipate a hazard, reasonable care does not require one who is walking in a place provided for that purpose to keep his eyes riveted to the floor immediately in front of his feet.118 Whether walking or riding a bicycle, the law recognizes no positive duty to look for cracks or uneven sidewalk. To give a WPI 12.06 instruction in a bicycling case would erroneously imply that an ordinary person who is bicycling has an affirmative duty to look for cracks and uneven sidewalk. Under these circumstances, as in Smith v. Manning’s, Inc., supra, it is reversible error to instruct the jury that there is such a “duty to see”. Further, as observed by the Washington Supreme Court Committee on Jury Instructions, such an instruction would unfairly emphasize one party’s theory of the case, constituting reversible error on this basis as well: For example, in Cornejo v. State, 57 Wn.App. 314, 788 P.2d 554 (1990), the court held that it was reversible error to give this instruction because it unfairly emphasized one party’s theory of the case. The

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Cornejo court found the instruction “palpably unfair” because it turned the jury’s attention away from the clear evidence of the defendant’s negligence, toward the question of the plaintiffs’ contributory negligence on which there was minimal evidence.119 In that case, Ms. Cornejo fell to her death between two parallel spans of an overpass structure approximately 40 feet above the ground. Her car had spun out on the icy road surface, and had come to a stop. She exited her car and was later found below the bridge. She apparently had fallen through the opening between the two overpass spans, not having seen the gap in the darkness. The State’s theory was that “the opening was clearly visible to drivers, and because Ms. Cornejo crossed the bridges regularly as she drove to and from work she should have noticed the gap.”120 The Court of Appeals reversed a jury finding of contributory negligence, holding that, because there was no positive duty to see the hazard, the trial judge committed reversible error in giving the “duty of seeing” instruction (WPI 12.06), particularly where the “instruction unfairly turned the jury’s attention away from the clear evidence of the State’s negligence, toward the question of Ms. Cornejo’s contributory negligence.”121 The court went on to hold that, by emphatically favoring the State’s theory, the instruction overstated the State’s minimal evidence to such a degree as to make it “palpably unfair,” requiring reversal.122

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In any event, there is no duty under Washington law to affirmatively look for cracks or uneven sidewalk panels when either walking or bicycling.

5. Avoiding Recreational Immunity

While the Montlake Bridge is a popular route for commuting, it is also used to access Lake Washington, where cyclists may be using the street and sidewalk to get to work or to shop, or just to ride for health or pleasure. Knowing that the City of Seattle had designated the Montlake Bridge as part of a “bicycle route”, a full-out effort was made to treat the bridge throughout litigation as simply a sidewalk used to transport pedestrians and bicycles, much as the bridge deck served to convey cars, trucks and bicycles to whatever their destination happened to be. Aware that a pending case addressing the issue of recreational immunity was awaiting Supreme Court resolution as it pertained to bicycle travel, and further aware that a look-out point at the Deception Pass Bridge had earlier received immunity under the Recreational Use Statute,123 the prudent approach was to eschew the City’s bicycle route designation, and treat the sidewalk as a sidewalk. The issue has now been responsibly resolved by the Washington Supreme Court in Camicia v. Howard S. Wright Construction, 179 Wn.2d 684, 317 P.3d 987 (2014). Simply put, a sidewalk or street that was initially created and

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opened as a sidewalk or street for broad public use does not become a recreational facility merely because a cyclist uses it for a recreational bike ride. The mental intent of the cyclist is irrelevant: Extending the reach of RCW 4.24.210 to land that is open to the public for purposes other than recreation simply because some recreational use occurs not only undermines the statute’s plain language and the legislature’s intent but would also unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel. See Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); see generally Berglund v. Spokane County, 4 Wn.2d 309, 313-14, 103 P.2d 355 (1940) (collecting cases). Recreational immunity would conceivably extend to every street and sidewalk in downtown Seattle, as these are open to the public without charge. Indeed, many streets and roads present some opportunity for “viewing or enjoying historical…sites,” another recreational purpose under the statute. RCW 4.24.210(1). It would be absurd if Seattle could assert recreational use immunity for injury to a visitor to Pioneer Square simply because tourists are permitted to enter it without charge to view “scenic… sites.” See id. We avoid any reading of the statute that would result in unlikely, absurd, or strained consequences….124

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Given that virtually every state highway, county road, city street and public sidewalk was opened for public transportation, and not expressly for the purposes of outdoor recreation, it will now be the extremely rare case that Washingtonâ&#x20AC;&#x2122;s Recreational Use Immunity statute will have any relevance in cases brought to hold a municipality accountable for injuries to a bicyclist resulting from an unsafe roadway or sidewalk. iii. Case #3: Doe v. City of Seattle Background: A Chief Financial Officer is commuting by bicycle to his place of work in downtown Seattle. He is heading westbound along Seneca Street, traveling on a downward incline between Seventh and Sixth Avenues. He is using the lane containing the bicycle icon graphic. He is traveling at approximately 17 miles per hour. His lane devolves into potholes and severe cracking. He avoids these hazards by steering around them until he reaches the base of the slope at the intersection of Seneca and Sixth, at which point he encounters rutting that sharply re-directs his front wheel, and he is thrown over his bicycle handlebars and onto the pavement. Although wearing a full protective helmet, his spine is compressed and he is left quadriplegic. Initial action: Hire an investigator and an accident reconstruction expert, and issue Public Records Act requests for the intersectionâ&#x20AC;&#x2122;s bicycle accident history, all STRITMATTER KESSLER WHELAN

public complaints, and the City’s maintenance records for that site.

Cracks and pothole in Seattle lane designated for bicycle travel.

e. Public Records Act Requests for Complaints and Maintenance History

One of the earliest projects in any case involving an unsafe roadway – bicycle or otherwise – is to secure all available information about the street or sidewalk in question, particularly accident history, maintenance activities, prior complaints, and photo- or video-documentation of the subject location collected and retained by the responsible public entity. The collision history is sought from the Washington State Patrol as the statutory custodian of Police Traffic Collision

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Reports.125 Beginning in the mid-1980s, the State (and a number of municipalities) refused to produce accident reports unless (1) the requestor signed a sworn statement that the records were not being sought for litigation against a governmental entity, or (2) a trial court ordered production. The uncooperative governmental entities, led by the State (WSDOT), claimed that 23 U.S.C. §409 placed these and other internal records beyond the reach of plaintiffs in actions against governmental entities. While the federal statute, read overly broadly, appeared to place restrictions on the admissibility and even discovery of documents that could potentially be used by a governmental entity in an application for federal funding for a roadway project, the U.S. Supreme Court ruled in Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed. 2d 610 (2003) that if the records were being sought from a governmental department other than a public works or transportation unit, they were in fact discoverable and could be relied upon by experts and used at trial. Thereafter, in our firm’s landmark case, Gendler v. Batiste, 174 Wn.2d 244, 274 P.3d 346 (2012), the Washington Supreme Court clearly held that police reports sought from the Washington State Patrol under the Public Records Act126 were exempt from the so-called non-disclosure provisions of 23 U.S.C. §409. Today, one need merely direct a request for a 10-year collision history (actual accident reports) for a given location (generally including a half-mile in both directions STRITMATTER KESSLER WHELAN

away from the roadway milepost or city block where the subject crash occurred). This will provide not only the identity of witnesses to roadway or sidewalk conditions (assuming that the names and addresses aren’t redacted), but the documents can also show the municipality’s constructive notice of the unsafe condition, and potentially even actual notice. The documents tend to come with a written caveat on the front page warning that 23 U.S.C. §409 prohibits the use of the document in any litigation against a governmental entity, but this is directly contrary to Guillen and Gendler. It is likely little more than an effort to preserve the government’s position should a future court reverse these U.S. and State Supreme Court rulings. As for the balance of the documents and information needed to fully evaluate the roadway safety case, a simple Public Records Act request to the governmental entity before ever filing suit – made as specific as possible – should produce the internal documents sought.127 Where notice of a defect may be an issue, the cyclist’s advocate should look to the road surface, where visible repairs may be seen at or near the area in question. Municipal records of construction and repair history and permitting in the area of the incident should be obtained. Many cities have pavement indexing systems, which are designed to triage road repair priorities based on traffic volume and signs of degradation and impending failure. Cities that blindly rely on such systems may be ignoring the fact that the systems do not usually factor in degradation effects

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important to bicyclists (and that may well show up in a designated bicycle lane or shoulder frequently used by cyclists), such as degradation at the road’s edge. Criticisms of such systems may be evidenced in public comments on the adoption or review of transit plans, correspondence with bicycle advocacy groups, and even in the planning documents themselves. The lawyer should also look to the municipality’s transit planning documents, which frequently describe recommended improvements and may refer to roadway standards. It can be helpful to depose the actual road maintenance personnel to determine whether they are familiar with those plans and standards. If the plans are not fulfilled and/or observed more in breach than in obeyance, the cyclist’s advocate may be able to argue that the plan was (a) a waste of taxpayer money, and/or (b) a hollow ploy to obtain transportation funding without delivering the safety the money was intended to provide.

f. The Juror’s State of Mind

Bicycle litigation should be approached from the standpoint that the bicycle is a non-polluting alternative to exhaust-spewing cars, trucks and buses. As children, it was

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the “companion” whom we rode to school or to a friend’s house. More and more, people are turning to bicycles for inexpensive, quiet, healthy pleasure. The bicyclists on the jury are law abiding citizens who can readily relate to the plaintiff. With some prompting, they will agree that bicycling is a clean, lawful activity, and they will endorse the principle that bicyclists have the same rights as others to a safe street or sidewalk. Whether or not jurors currently bicycle, their children and grandchildren should not be subjected to hazardous traps while learning to ride or developing their bicycling skills. It has been lawful to ride bikes on sidewalks for the past century. As cities invite more and more citizens to abandon their cars and commute by bicycle, they must be mindful that city streets have to be maintained with these invited cyclists in mind. As city and state employees responsible for bicycle safety programs will readily admit, the rough streets and deep potholes that cars have been subjected to are no long acceptable, given that bicycles comprise more and more of the traffic population on our streets – with the blessing of our cities. It is largely a matter of directing the bicycle safety program personnel to communicate with the maintenance division superintendent. Until then, the left hand and the right hand will not provide the reasonably safe roads that the law requires. Until then, it will be the jury’s responsibility to hold the municipality accountable for injuries caused by

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its unsafe street or sidewalk. It’s not just accountability – it’s a matter of public safety.

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VI. PRODUCT LIABILITY “Not only did I break my seatpost, I also broke a nail.” – Kathy Sessler, Professional Mountain Bike Racer A full review of Washington Product Liability law as it applies to bicycles is beyond the scope of this booklet. That law is found in Chapter 7.72 RCW and related cases. Still, bicycles are increasingly manufactured overseas and purchased through websites, which may also be located overseas. The jurisdictional challenges created by the outsourcing of American industrial production and sales present significant issues for all product liability cases, and bicycle-related ones are no exception. The lawyer who thinks a product liability claim may be possible needs to carefully research and consider which, if any, courts in the United States have jurisdiction over the manufacturer and/or seller, as well as attendant problems of securing personal jurisdiction and enforcing any judgment that might be obtained. Some countries have laws prohibiting the enforcement of U.S. judgments. Such prohibitions often hinge on a determination that to enforce the judgment would violate the country’s public policy in some way, either because it awards multiple or punitive damages, is perceived as having the effect of unacceptably restraining trade, would be grounded in a cause of action the country does not recognize, or is based on a uniquely American public policy. Enforcement of judgments abroad is a

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complex area that may require consulting a legal specialist in that subject. The lawyer must learn where the bicycle was purchased and who touched it before the incident causing injury: Bicycles purchased at reputable bicycle shops are usually assembled properly, tested, reconditioned for safety if used, and well-maintained if they are or were in-store rentals. By contrast, large “big box” stores that sell bicycles as one of many different items usually do not employ people who are competent bicycle mechanics. Those bicycles are usually on the lower end of overall quality to keep prices down, and have been known to be frequently misassembled and/or misadjusted. Nevertheless, a welladjusted department store bike can be fine if it is properly assembled, or just checked over by a competent mechanic at some point. Many people maintain their own bicycles – or simply fail to maintain them. Bicycle shop mechanics can be highly skilled, terrible, or somewhere in between…and it is not unusual to find both extremes in the same bicycle shop, even a popular one. Local bicycle shops are often low- profit-margin whose business ethic generally includes giving a lot of free advice and sometimes free minor repair. They often hire young, inexperienced people at low pay to work on bicycles. Unless the mechanic is involved for the pure love of cycling, there is little incentive to stay in such a job for long. Bicycles, perhaps more than most other transportation devices, are subject to physical abuse and modification and STRITMATTER KESSLER WHELAN

Photo by Sam Ley

repair by the user, and sometimes by a series of users as the bicycle makes its way through a cascade of hand-me-down and/or used sales transactions. People frequently purchase used bicycle parts and install them on a bicycle for which the part may never have been intended.

A bike built from scavenged parts

A â&#x20AC;&#x153;Frankensteinâ&#x20AC;? bicycle is not hard to find; indeed, it is often a source of pride to the owner. The implications for a product liability case can be significant. A manufacturer may disclaim liability for a product that is significantly altered, past its presumed useful safe life, misused or abused, or whose owner cannot be reasonably located for purposes of providing post-manufacture warnings or instructions. In sum, when a lawyer has a serious case in which causation may be related to assembly or maintenance of the bicycle, it is very important to find out the identity

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of the person(s) involved in performing that work, their training and experience. Usually, if a bicycle fails as a product, it is due to failure of an important component â&#x20AC;&#x201C; for example, a wheel that collapses, or a handlebar, stem, fork, seat post, frame, chain, or pedal that snaps. Scratches can compromise the structural integrity of carbon fiber components. Where such a claim is contemplated, the lawyer should obtain and preserve the component, and hire a competent material science expert to examine it. It may be necessary to perform electron microscopy on the component. No destructive testing should be done without advising the defense and giving it a reasonable opportunity to evaluate the testing protocol and consent to the testing; else the test may be the basis for a spoliation of evidence claim. Before asserting a product defect claim, it is very important to thoroughly understand the history of the bicycle. Bicycles are frequently abused by being aggressively ridden, left in adverse weather, neglected in adjustment, maintenance, and repair, maintained and repaired with questionable materials and parts, and crashed. Many bicycle owners change their own tires and do other maintenance at home. These factors can play significant roles in product liability litigation.

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VII. EVIDENCE “The advantages? Exercise, no parking problems, gas prices, it’s fun. An automobile is expensive. You have to find a place to park and it’s not fun. So why not ride a bicycle? I recommend it.” – Justice Steven G. Breyer, U.S. Supreme Court

a. Usual Sources

Where a bicycle has crashed, lawyers should collect the same evidence they often collect in motor vehicle cases: police reports, eyewitness statements, statements made to insurers, photographs of involved persons and vehicles and the scene, medical records, etc. At least one visit to the scene is essential to appreciate the situation. If possible and safe, a visit on a bicycle of the type involved can be very useful. Obtaining a thorough history of the bike’s use and maintenance is also important.

b. Technology

The popularity of electronic personal fitness data trackers and even cell phones by bicyclists increases the chance that a record of bicycle speed immediately prior to the collision will exist. The ever-more sophisticated and compact array of telemetric devices that all of us, including bicyclists, increasingly carry, can record a surprising quantity of data. Some are bicycle specific and some are not. Simple bicycle-specific devices may record speed and distance only. Fancier ones may record time, GPS location, heart

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rate, cadence (rate of pedaling), slope incline/decline, rate of ascent/descent, and wattage output. Some cyclists use dedicated equipment, such as a Garmin device; others may use an application on a mobile phone, such as MapMyRide. Data captured on a dedicated device are not usually uploaded automatically to another computer, and can be frequently overwritten, so it is important for the lawyer and/or the client to download that data as soon as possible following a crash. Keep in mind, if the victims of the crash do not have such data, their riding partners may. Consider also that some bicyclists keep logs of their rides, and increasingly do so with the aid of the data they collect on the ride itself. One popular site for such data is www. strava.com. Garmin has a proprietary site keyed to its own devices. This data may bear upon the cyclistâ&#x20AC;&#x2122;s familiarity with the particular area of the crash. Familiarity with an area may be a double-edged sword, however. For example: On one hand, a cyclist who has been through a particular area many times without incident might be said to be negligent for overlooking a particular road hazard. On the other hand, that familiarity may be used to argue the inevitability of the trap set by the hazard. Data from many cyclists may show the popularity of a particular route with cyclists, which can be useful in making cases against governmental entities and motor vehicle drivers who fail to take into account the volume of cyclists. The data may also be useful in painting an accurate picture of the impact a serious accident had on that favorite recreational activity.

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Alternatively, if it shows strenuous or regular activity after the crash, damages may be negatively affected. Small video recorders, such as the GoPro, are becoming more and more prevalent, particularly in mountain biking and on â&#x20AC;&#x153;eventâ&#x20AC;? rides. Again, these videos can help or hurt. Does the video show a car suddenly backing into the street in front of the cyclist? Does the video show the cyclist running through every stop sign, or engaging in other reckless activity? A lawyer should always inquire whether one was operating at or near the time of the bicycle crash. Finally, the lawyer should not forget that surveillance cameras exist in many, many locations. It is not uncommon for collisions to occur involving vehicle drivers who seek to leave a parking lot that is under the eye of a security camera. As part of familiarizing oneself with the scene of the incident, the lawyer should note where video cameras are or may be, and obtain copies of the recordings pertinent to the collision as soon as possible. Keep in mind, obtaining video of times other than the collision itself may be important to gauge traffic, its patterns and speeds, and other possible factors such as sun angles and shadows.

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VIII. BIKING AND MOBILE PHONE USAGE “Bicycling is a healthy and manly pursuit with much to recommend it, and, unlike other foolish crazes, it has not died out.” – The Daily Telegraph (1877) By Washington statute, the driver of a motor vehicle may not hold to his or her ear any wireless communication device or hand-held mobile telephone while operating the vehicle.128 The statute preempts all local regulation of “the field of regulating the use of wireless communications devices in motor vehicles.” Exceptions exist, most notably for emergency personnel, using a hands-free device, or reporting illegal activity. The 2007 statement of intent accompanying the statute proclaims, “It is the legislature’s intent to phase out the use of hand-held wireless communications devices by motorists while operating a vehicle.” By separate statutes, text messaging while driving is also barred,129 and teenagers are barred from all non-emergency use of cell phones and other wireless communications devices while driving.130 Even so, the law has not kept up with the expansion of mobile telephone devices that enable them to distract the driver in a myriad of other ways connected to using internet services. At the time of this writing, the Washington Legislature seems likely to pass a law that broadens that law to include the use of such a device while driving.131 Moreover, the automotive industry is adding large distracting electronic displays

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and internet capability to new vehicles in order to entice purchasers. Those risks may end up being partially offset by increased integration of crash avoidance systems. By contrast, neither the existing Washington statute nor the proposed amendment applies to bicyclists. Bicyclists, unfortunately, can often been seen bicycling while using mobile communication devices; despite the fact that for a bicyclist, situational awareness is arguably even more important than it may be for a motorized driver. Moreover, a crash-avoidance system for a bicycle is not likely to be perfected any time soon. Some major cities have imposed restrictions: In 2011, Chicago barred bicyclists from using hand-held electronic devices and texting. A Brooklyn council member has proposed a New York City ordinance to prohibit such usage. On the other hand, a similar plan in California, which increased penalties for motorists and added bicyclists to its reach,132 died by the Governorâ&#x20AC;&#x2122;s veto. Although this emerging area of regulation engages competing interests, the tort implications of riding a bicycle while using a handheld device seem clear. An interesting question is presented whether a Washington court involved in a case stemming from a collision caused by such a bicyclist would allow argument that refers directly to the statute applicable to motorists.

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CONCLUSION “If I can bicycle, I bicycle.” – David Attenborough The bicyclist’s rights and responsibilities play out daily in our streets, sidewalks and bridges – where the bicyclist risks striking a pedestrian or being struck and crushed by a car or bus. Our effort was to clarify those rights and responsibilities, and to provide guidance through our legal system when unfortunate but inevitable collisions occur. The quickly evolving area of bicycle law – applicable to a mode of transportation nearly two centuries old – presents us with the opportunity to insist that our streets and sidewalks are reasonably safe for our ever-increasing body of cyclists. Here’s to the future of cycling, and our role in promoting a positive ride.

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ENDNOTES 1 RCW 46.04.071. 2 Defined by RCW 46.04.710. 3 RCW 46.04.332. 4 RCW 46.04.330. 5 RCW 46.04.670. 6 RCW 46.61.780. 7 Seattle Muni. Code 11.44.160; Bellingham Muni. Code 11.48.100(A). 8 See RCW 46.37.020. 9

Seattle Muni. Code 11.44.200; Bellingham Muni. Code 11.44.100(B)

10 See http://bikeportland.org/2006/07/28/judge-finds-fault-withfixies-1727 11 RCW 46.37.480. 12 RCW 46.61.770(1). 13 RCW 4.61.770. 14 See also Subsection III.a.iii., on the next page. 15 Cf. RCW 46.61.110(2) (motorist required to pass bicyclist by a safe margin). 16 RCW 46.61.160. See also RCW 46.61.770 (“A person operating a bicycle upon a roadway may use the shoulder of the roadway …”). 17 RCW 46.61.160. The prohibited areas are described at http://www. wsdot.wa.gov/bike/closed.htm. 18 “Bicycle Road Safety Audit Guidelines and Prompt Lists” (FHWASA-12-18, May 2012) §2.2, available at http://safety.fhwa.dot.gov/ ped_bike/tools_solve/fhwasa12018/ (but note the disclaimer at the start of the publication: “This report does not constitute a standard, specification, or regulation.”) 19 RCW 46.61.770. 20 RCW 46.61.770(1); Borromea v. Shea, 138 Wn. App. 290, 296-297, 156 P.3d 946 (2007).

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21 See discussion at “In general: Bikes to Keep Right,” above. 22 Borromea, supra n.20 (distinguishing sidewalks and crosswalks). 23 RCW 46.61.110. 24 RCW 46.08.175. 25 RCW 46.61.710(5). 26 RCW 46.61.755(2). 27 Bellingham Muni. Code 11.48.070(C). 28 RCW 46.61.126; RCW 46.61.755. 29 RCW 46.61.750. 30 See, e.g., Pudmaroff v. Allen, 138 Wn.2d 55, 63-64, 977 P.2d 574 (1999); Borromea v. Shea, 138 Wn.App. 290, 295-296, 156 P.3d 946 (2007). 31 RCW 46.61.770(2). (Motorcycles may also ride two-breast. RCW 46.61.608(4).) 32 Ibid. 33 RCW 46.61.770(1). 34 RCW 46.61.261(1). 35 RCW 46.61.235(2) (similar rule for pedestrians). 36 RCW 46.61.261(1). 37 RCW 46.61.755(2). 38 RCW 46.61.050. 39 RCW 46.61.235. 40 Seattle Muni. Code 11.44.100. 41 RCW 46.61.240. 42 WAC 308-330-555(3). 43 Seattle Muni. Code 11.44.120. 44 Spokane Muni. Code 16A.61.787(B)-(C). 45 Bellevue Muni. Code 11.60.070. 46 Yakima Muni. Code 13.16.015. 47 WAC 308-330-555(1)-(2).

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48 Spokane Muni. Code 16A.61.787(A). 49 Redmond Muni. Code 10.48.040(a). 50 WAC 308-330-550. 51 Spokane Muni. Code 16A.61.787(D). 52 Pudmaroff v. Allen, 138 Wn.2d 55, 977 P.2d 574 (1999), affirming Pudmaroff v. Allen, 89 Wn.App. 928, 951 P.2d 335 (1998). 53 Pudmaroff, 138 Wn.2d at 67; see also Shasky v. Burden, 78 Wn.2d 193, 200, 470 P.2d 544 (1970)(pedestrian). 54 RCW 46.61.235(2). 55 Seattle Muni. Code 11.44.120. See also “Rules of the Sidewalk,” above. 56 King Co. Code 7.12.295. 57 See, e.g., http://www.seattleweekly.com/2007-08-08/news/cyclistsgetting-dinged-for-ignoring-speed-limits-and- stop-signs-onburke-gilman/. 58 RCW 47.36.025. 59 RCW 47.36.025(4). 60 RCW 46.61.184. 61 See http://mutcd.fhwa.dot.gov/pdfs/2009/part9.pdf. 62 RCW 46.61.758. 63 Seattle Muni. Code 11.44.140. 64 City of Montesano v. Wells, 79 Wn.App. 529, 902 P.2d 1266 (1995). 65 See also RCW 46.61.790 (describing law enforcement options with regard to intoxicated bicyclists). 66 In Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (August 2003), the Washington Supreme Court held that negligent tortfeasors may not be held jointly liable for damages caused by intentional tortfeasors. Juries are required at trial to segregate damages caused by negligent acts from damages caused by intentional acts. 67 RCW 46.61.700 (“The parent of any child and the guardian of any ward shall not authorize or knowingly permit any such child or

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ward to violate any of the provisions of this chapter.”); see also, RCW 4.24.190 (parental liability for child’s willful and malicious behavior). However, children under 6 do not have the mental capacity to be negligent, Von Saxe v. Barnett, 125 Wash. 639, 217 P. 62 (1923). Children under 6 may be held liable for volitional, wrongful conduct. Garratt v. Dailey, 46 Wn.2d 197, 279 P.2d 1091 (1955). But children cannot be apportioned fault under RCW 4.22.070, Price v. Kitsap Transit, 125 Wn.2d 456, 886 P.2d 586 (1994); see also Tegman, supra n.66. 68 But remember, most smaller children’s bicycles do not meet the statutory definition of a bicycle because they have wheels smaller than 16 inches in diameter. RCW 46.04.071. Thus, while such children might violate the Rules of the Road as “pedestrians,” no violation of any rule unique to “bicycles” at least is possible where they are concerned. 69 RCW 46.61.110(2). 70 RCW 46.61.290(1). 71 SMC 11.44.080. 72 Namely, subsection (2), which provides “The operator of a motorcycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken,” and subsection (3), which provides in part “No person shall operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles”. 73 RCW 46.61.620. 74 RCW 46.61.110(2). 75 See, e.g., Title 11, King County Code. 76 Johnston v. Ohls, 67 Wn.2d. at 400 (citations omitted). 77 RCW 48.22.005(11). 78 RCW 48.22.005(5)(a) & (5)(b)(ii). See also Mattson v. Stone, 32 Wn.App. 630, 632, 648 P.2d 929 (1982) (PIP available to bicyclist’s passenger). 79 See Tyrell v. Farmers Ins. Co. of Wash., 140 Wn.2d 129, 994 P.2d 833 (2000). 80 RCW 48.22.095(1); 48.22.100(1). 81 RCW 48.22.095(2); 48.22.100(2).

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82 RCW 48.22.095(3); 48.22.100(3). Most policies, in accordance with the PIP statute, impose a 14-day exclusion period before providing income continuation benefits, which end after the earlier of death, return to work, or 52 weeks. See RCW 48.22.005(3) (defining “income continuation benefits”). 83 RCW 48.22.95(4); 48.22.100(4); 48.22.005(6). 84 Puget Sound Regional Council, “Bicycling and Walking in the Central Puget Sound Region”, PUGET SOUND TRENDS (July 2009). 85 http://www.seattle.gov/transportation/bikedata.htm. Adding recreational use to the population of commuters, this number increased to 39,029 bicyclists during the Saturday peak hour. Ibid. 86 September 2013 SDOT Bicycle Participate Phone Survey. 87 T. Fucoloro, Seattle Bike Blog (September 19, 2013) (http://www. seattlebikeblog.com/2013/09/19/census-data- confirms-steadyclimb-in-seattle-bike-commuting-driving-alone-now-below-50/). 88 Ibid. 89 Bicycle Data, Seattle Department of Transportation Bike Program (http://www.seattle.gov/transportation/bikedata.htm). 90 See, e.g., Seattle Master Bicycle Plan, approved in 2007 (http://www. seattle.gov/Transportation/bikemaster.htm) (“The plan focuses on two major goals: to triple the amount of bicycling in Seattle between 2007 and 2017, and to reduce the rate of bicycle collisions by one third during the same timeframe.”); Bellevue Pedestrian-Bicycle Plan (http://www.ci.bellevue.wa.us/pedbikeplan.htm). 91 See Case Strategies, infra. 92 Yakima Muni. Code 12.06.040. 93 “Revised 2nd Avenue bike lane signals change for drivers, riders,” The Seattle Times (September 7, 2014) (http://seattletimes.com/ html/localnews/2024488379_secondavenuexml.html). 94 A protected bike lane is an exclusive bike facility that has elements of a separated path and on-road bike lane. While still within the roadway, it is physically separated from motor traffic and is distinct from the sidewalk. By contrast, in shared lanes, where car lanes are marked with “sharrows”, cyclists and motorists have equal rights. 95 “Pick for Transportation Director was bike-friendly leader in

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Chicago, DC”, Seattle Bike Blog (July 2, 2014) (http://www. seattlebikeblog.com/2014/07/02/pick-for-transportation-directorwas-bike-friendly-leader-in-chicago-dc/). Unfortunately, the installation of the protected bicycle lane on Second Avenue in Seattle occurred after a cyclist using a shared lane was killed. (“Cyclist Killed Days Before City To Upgrade Notorious Bike Lane,” The Seattle Times (August 29, 2014) (http://seattletimes.com/html/ localnews/2024421617_cyclistkilledxml.html)). 96 See “Protected Bicycle Lanes in NYC”, New York City Department of Transportation (September 2014) (http://www.nyc.gov/html/dot/ downloads/pdf/2014-09-03-bicycle-path-data-analysis.pdf). 97 See “Bicycle Lanes”, District Department of Transportation (http:// ddot.dc.gov/page/bicycle-lanes); “Bicycling in Washington, DC” (http://godcgo.com/home/ways-to-get-around/bike/bicycling.aspx). 98 Buffered Bike Lanes/The City of Portland, Oregon (https://www. portlandoregon.gov/transportation/50346); (http://www.sfmta. com/projects-planning/find-projects/bike). 99 Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273 (1895). 100 Washington Pattern Jury Instructions, WPI 40.01 (emphasis added). 101 Kirtley v. County of Spokane, 29 Wash. 111, 113, 54 P. 936 (1898): In this state the right to recover for damages sustained by reason of negligence of municipal corporations in failure to repair streets has been uniformly recognized. Such municipal corporations are by law authorized to construct streets, bridges, and sidewalks, and the duty of maintenance is imposed upon the corporation, and for a breach of this duty they are liable to any one injured. Following the 1895 Sutton and 1898 Kirtley cases, this duty has steadfastly remained embedded in our common law. See, e.g., Einseidler v. Whitman County, 22 Wash. 388, 60 Pac. 1122 (1900); Larsen v. Sedro-Woolley, 49 Wash. 134, 94 Pac. 938 (1908); Archibald v. Lincoln County, 50 Wash. 55, 96 Pac. 831 (1908); Neel v. King County, 53 Wash. 490, 102 Pac. 396 (1909); Blankenship v. King County, 68 Wash. 84, 122 Pac. 616 (1912); Leber v. King County, 69 Wash. 134, 124 Pac. 397 (1912); Kelly v. Spokane, 83 Wash. 55, 145 Pac. 57 (1914); Swan v. Spokane, 94 Wash. 616, 162 Pac. 991 (1917); Murray v. Spokane, 117 Wash. 401, 201 Pac. 745 (1914); Lewis v. Spokane, 124

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Wash. 684, 215 Pac. 36 (1928); Gabrielsen v. Seattle, 150 Wash. 157, 272 Pac. 723 (1928); Boggess v. King County, 150 Wash. 578, 274 Pac. 188 (1929); Slattery v. Seattle, 169 Wash. 144, 13 P.2d 464 (1932); Fritch v. King County, 4 Wn.2d 87, 102 P.2d 249 (1940); Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 355 (1940); Parker v. Skagit County, 49 Wn.2d 33, 292 P.2d 620 (1956); Owens v. City of Seattle, 49 Wn.2d 187, 299 P.2d 560 (1956); Boeing Co v. State, 89 Wn.2d 443, 572 P.2d 8 (1978); Stewart v. State, 92 Wn.2d 285, 597 P.2d 101 (1979). 102 T his confusion was created by Hansen v. Washington Natural Gas, 95 Wn.2d 773, 632 P.2d 504 (1981). 103 Chen v. City of Seattle, 153 Wn.App. 890, 223 P.3d 1230 (2009), 169 Wn.2d 1003, 234 P.3d 1172 (2010). 104 Owen v. Burlington Northern and Santa Fe R.R. Co., 153 Wn.2d 780, 787-788, 108 P.3d 1220 (2005). 105 Pre-Keller cases specifically acknowledged application of WPI 140.01 to bicyclists, but upheld a defense verdict (Wick v. Clark County, 86 Wn.App. 376, 936 P.2d 1201 (1997)) and a defense summary judgment (Gunshows v. Vancouver Tours, 77 Wn.App. 430, 891 P.2d 46 (1995)) based on the earlier language of the instruction in play at the time, which provided that a municipality’s duty to provide reasonably safe roads extended only to “people exercising care for their own safety”. Gunshows, 77 Wn.App. at 435. 106 WPI 140.01. 107 RCW 46.61.755(2) (“Every person riding a bicycle upon a sidewalk or crosswalk must be granted all of the rights and is subject to all of the duties applicable to a pedestrian by this chapter.”) (emphasis added). Specifically as to crosswalks, a bicyclist in a crosswalk has the same right of way as a pedestrian. RCW 46.61.235. See also Pudmaroff v. Allen, 138 Wn.2d 55, 60, 977 P.2d 574 (1999); Crawford v. Miller, 18 Wn.App. 151, 566 P.2d 1264 (1977). In addition to having the same rights as a pedestrian when riding on a sidewalk, “[a] person riding a bicycle upon a roadway has all the rights of a driver of a motor vehicle”. WPI 70.09. That is because Washington law expressly includes “bicycles” in its definition of “vehicle.” See RCW 46.04.670. 108 RCW 4.92.010(1), (2) and (5).

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109 “A person using a public [road] [street] [sidewalk] has a right to proceed upon the [road] [street] [sidewalk] with the assumption that it is safe for travel until he or she knows, or in the exercise of ordinary care should know, to the contrary.” WPI 140.03. 110 Batten v. South Seattle Water Co., 65 Wn.2d 547, 398 P.2d 719 (1965); Palmer v. City of Puyallup, 50 Wn.2d 627, 313 P.2d 1114 (1957); Russell v. City of Grandview, 39 Wn.2d 551, 236 P.2d 1061 (1951). 111 Argus v. Peter Kiewit Sons’ Co., 49 Wn.2d 853, 307 P.2d 261 (1957). In Argus, Peter Kiewit Sons’ Company (Kiewit) conducted highway maintenance and repair work on US 101 pursuant to a contract with the State of Washington. Kiewit barricaded a portion of the highway, and constructed a 500-foot detour onto a gravel road. A Kiewit employee was assigned to keep the gravel graded. Nevertheless, a motorcyclist encountered a depression or trough in the dark, lost control and was injured. Kiewit contended that its employee had inspected the roadway earlier in the evening and found it to be satisfactory. It argued, in any event, that unless or until a contractor is shown to have had actual or constructive knowledge of the defect a sufficient length of time before the accident to have remedied the condition, there can be no liability. The Supreme Court held that no proof of notice – actual or constructive – was needed where a developing unsafe condition could be anticipated: he duty of the appellant contractor to use ordinary care T in keeping the detour in a safe condition for proper travel involved the anticipation of defects that were the natural and ordinary result of use by vehicular traffic. Appellant could not remain passive until the defect or dangerous condition developed and an accident happened, and then avoid liability on the ground that it had no actual or constructive knowledge or notice of the specific defect or the dangerous condition. In the exercise of due care, it had a duty to anticipate the development of a dangerous condition and guard against it. In the proper exercise of due care, the appellant is chargeable with knowing what might reasonably be expected to happen.

Argus, 49 Wn.2d at 856.

112 See WPI 140.02.

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113 See discussion of venue in Case #1, above. 114 RCW 4.92.010. 115 In Stone v. City of Seattle, 64 Wn.2d 166, 391 P.2d 179 (1964), the Washington Supreme Court held that the existence of a sidewalk defect for three months was a long enough period of time to constitute constructive notice, as a matter of law. In that case, Mr. Stone was injured when he encountered a hole in the sidewalk at 13th and Denny in Seattle. Although several witnesses testified that they hadn’t seen the hole, others had, and one witness testified that the sidewalk defect was there in September, three months before Mr. Stone’s December incident. Affirming the trial court’s directed verdict for the plaintiff, the Supreme Court held: “The defect did exist, and it was present for a sufficient period of time to constitute constructive notice against the city.” Stone, 64 Wn.2d at 170-171. In Holland v. City of Auburn, 161 Wash. 594, 297 P.769 (1931), as little as six to seven days’ existence of a 2-4” ice mound on a sidewalk between city hall and the post office was held sufficient for constructive notice to be imputed to the city. In Skaggs v. General Electric Company, 52 Wn.2d 787, 328 P.2d 871 (1958), Mr. Skaggs was injured at 4:00PM on October 27, 1956 when he tripped and fell over a sign post that had been bent across the sidewalk at 9:00AM, earlier that same day. The Washington Supreme Court upheld the jury’s verdict charging the entity responsible for the sidewalk with constructive notice of the hazard. In Trojan v. City of Blue Island, 10 Ill. App. 2d 47, 134 NE 2d 29 (1956), a defect in the sidewalk that had existed for a period of one to two months was held to have been present for a sufficient time to constitute constructive notice to the city of its existence. 116 Smith v. Manning’s, Inc., 13 Wn.2d 573, 578, 126 P.2d 44 (1942); Comment, WPI 12.06, 6 WASHINGTON PRACTICE 158 (2012). 117 Smith, 13 Wn.2d at 578. Accord: Smith v. B&I Sales Co., 74 Wn.2d 151, 153, 443 P.2d 819 (1968) (“Where there is no reason to anticipate a hazard, reasonable care does not require one who is walking in a place provided for the purpose, to keep his eye riveted to the floor immediately in front of his feet”). 118 Simpson, 39 Wn.2d at 937. 119 Comment, WPI 12.06, 6 WASHINGTON PRACTICE 157 (2012).

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109

120 Cornejo, 57 Wn.App. at 318. 121 Id. at 321. 122 Ibid. 123 Chamberlain v. Department of Transportation, 79 Wn.App. 212, 901 P.2d 344 (1995). 124 Camicia, 116 Wn.2d at 699. Classification of the Burke-Gilman Trail in Seattle may still be unresolved under this analysis. As the Camicia court observed, the plaintiff in Riksem v. City of Seattle, 47 Wn.App. 506, 508, 736 P.2d 275 (1987), did not dispute that the trail was open to the public for the purposes of outdoor recreation or that he was a recreational user. 125 RCW 46.52.060. 126 Chapter 42.56 RCW. 127 See exemplar letter in the Appendices. 128 RCW 46.61.667. 129 RCW 46.61.668. 130 RCW 46.20.055(3)(b). 131 See Wash. SB 5656 (2015). 132 Calif. SB 28 (2011).

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APPENDICES

HOQUIAM OFFICE 413 Eighth Street Hoquiam, WA 98550 360.533.2710 Fax 360.532.8032 SEATTLE OFFICE

August 16, 2013

200 Second Avenue W. Seattle, WA 98119 206.448.1777 Fax 206.728.2131

Seattle Department of Transportation Attn: Records PO Box 34996 Seattle, WA 98124-4996

Reply to Hoquiam Office www.stritmatter.com

Re: Seneca Street Dear Records Custodian: We request copies of documents and other written or electronically stored materials pertaining to Seneca Street between 7th and 6th Avenues, and including the intersection of Seneca Street and 6th Avenue for the past 15 years, applicable to the following categories: 1. All accident reports for collisions involving bicyclists; 2. All public complaints regarding the condition of Seneca Street between 7th and 6th Avenues; 3. All roadway surface inspections, maintenance and repairs relating to the roadway surface of Seneca Street between 7th and 6th Avenues; and 4. The designation of the right center lane of Seneca Street between 7th and 6th Avenues for use by bicyclists. We agree to pay for copying charges up to $500. Thank you. Yours,

Keith L. Kessler KLK:klm

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Stritmatter Kessler Whelan Bicycle Cases – Recent Examples Applying the principles set out in the preceding analysis, our firm has achieved these and several other positive results for bicyclists: 2012 – D uggan v. Vaughn (bicyclist struck by car: left hand and right knee fractures, internal injuries, closed head injury – $100,000 (policy limits)) 2010 – Girod Estate v. Gregory Cedell (bicyclist struck by utility van: death – $1 million (policy limits)) 2010 – Gendler v. State of Washington* (unsafe bridge deck; bicyclist’s front wheel became wedged in bridge deck seam, throwing him over his handlebars and onto the deck: spinal cord injury – $8 million) 2010 – Jiang v. King County (unsafe road; cyclist struck by car rounding blind curve: death – $1.55 million) 2012 – K eebler v. Asmus (bicyclist struck by car: fractured leg, vertebral fractures, mild traumatic brain injury – $1.2 million) 2014 – M auze v. Ridemind/Transition Bikes (failure of bike frame weld: brain injury – $3.4 million) 2013 – R emme v. State of Washington/City of Seattle* (unsafe sidewalk on bridge; bicyclist struck depression and flew over handlebars: spinal cord injury – $4 million)

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2006 – Wade v. Pierce County (12-year-old boy struck by a police car while on his bicycle: death – $1.25 million) 2001 – Witt v. Hutton (bicyclist hit by a motor vehicle: brain injury – $600,000 (policy limits)) * John Duggan, co-counsel

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113