Wednesday, October 10, 2012

Bicyclists Beware - It's Your Fault if You're Hit by a Texting Driver

It is the responsibility of a bicyclist to make sure that the driver of a car is not texting before the cyclist proceeds through an intersection – even if the cyclist has the right-of-way. That’s what I learned in court today.

Let’s back up. Two and a half years ago, my daughter, age 17 at the time, was struck by a car that failed to stop at a stop sign as my daughter was riding through the intersection on her bike. Yes, she was riding on the sidewalk (legal in our jurisdiction), and was doing so because she was riding along a very busy 4-lane road that is not safe for bikes. Yes, she assumed that the car, which was proceeding very slowly toward the intersection, would actually stop at the stop sign. (Crazy and irresponsible, right?)

The following facts were undisputed in the case. The driver did not see my daughter, even though she hit her with the FRONT of her car. The first time the driver saw my daughter was when she was lying on the ground, after being thrown behind the car, with a severely broken wrist and ruptured spleen (apparently a common bicycle injury when the handlebars are shoved into your gut).

I am not a litigious person, but decided to file a lawsuit after the driver’s insurance company refused to settle a claim and it became clear that my daughter’s injuries were continuing. My daughter spent a week in the hospital, was on bed rest an additional two weeks, on restricted activity for three months, and lost the lion’s share of her spleen. She has continuing pain and disability in the wrist of her dominant hand. We incurred $77,000 in medical expenses – most, but not all, of which were covered by insurance. The driver had a dented license plate and other minor damage to the hood of her tank-like Volvo.

But we have the misfortune of living in Virginia, which has an absurd standard for a plaintiff to meet. Even if the jury found that the driver of the car was negligent, (which she clearly was) they had to find in her favor if the other party could have contributed, even one percent, to the cause of the accident. They made the case, and convinced seven jurors, that a “reasonable person” would have known better than to proceed through an intersection, in which she, by law, had the right-of-way, if a car was approaching.

Get this: when the attorney for the driver made his closing argument, he maintained that IT WAS THE RESPONSIBILITY OF THE BICYCLIST TO MAKE SURE THAT THE DRIVER WASN’T DISTRACTED. He actually said: “What if the driver had been talking on her cell phone or texting?” He also maintained that, if a driver had to wait for every pedestrian to cross an intersection, “he’d be sitting there forever.”

Well, we wouldn’t want the driver of a car to have to “wait forever” for pedestrians (much less bicyclists) to cross. So – bike riders take note – we should stop at every intersection, dismount our bikes, make eye contact with the driver of every car, and make sure they are not sending an important text message as they approach stop signs (which we should never assume they will actually stop at). Because if they happen to mow us down, it’s our own fault.