Rights and responsibilities of cyclists in California
Prepared by Mona Lisa Wallace, Esq. and the San Francisco Bicycle Coalition as a Resource of the Bicyclists' Rights Hotline
Introduction
If you are you a bicyclist who has been involved in a collision in California, this guide has been prepared to assist you in understanding your legal position and finding resources. But first, the disclaimer: This guide is intended as an introductory educational tool only - it is not intended to provide legal advice or to replace legal counsel. The helpfulness of this guide is limited because every case is different, the law is constantly changing, and there is limited space in this guide.
First Steps
File a police report. Police reports are powerful evidence. Immediately after an accident, ask a passerby to call the police. Wait for the police at the scene. Insist that the police take a report. Do your best to estimate the exact time of the accident. If you suspect that the driver may have been using a cell phone or was otherwise distracted, be sure to tell the police officer and double-check that he or she has included that statement in the police report. Proof can be attained later by viewing the driver's cell phone bill. The police will give you a receipt with instructions for attaining a copy. If the police report turns out to be inaccurate, go to the police station and submit a revision. The SFBC has received many reports of police resistant to writing reports or who write inaccurate reports. If police show up at the scene, insist on a report being taken. If the police refuse, go to the police station and file one there. (See included Department Bulletin issued by the SF Police Chief clarifying police officers' responsibilities to bicyclists involved in traffic incidents.) Even if time has passed since the incident occurred, you can and should still go to a police station to file a report after the fact. The police report is one of the most important tools in settling your case with the insurance company.
Always make sure you get complete information about the driver and the vehicle involved in the incident. Copy down all of the information from their driver's license, insurance card, and license plate. Get the contact information from every witness available.
Keep a detailed diary. Write everything down: descriptions of the accident, physical descriptions of everyone involved, a daily log of your injuries and pain, records of any economic losses, notes of all conversations relating to the accident. After every conversation with the insurance company or other party, send a confirming letter restating the points discussed. It can take a long time to settle your claim, so keep everything carefully organized.
Preserve all evidence. Physical evidence, including your damaged bicycle or clothing should be kept intact. Do not make repairs until you have settled your claim. Take photographs (Note: Polaroids do not show detail as well as regular film) of your injuries and the scene.
Witnesses can be very important to your claim. Take their names and information. Contact them fairly soon after the accident to confirm their recollection of the details before they forget. Look for additional witnesses by returning to the scene at the same time of day.
Document your injuries. Get medical treatment immediately because those medical records are extremely important to attaining a fair settlement. Medical care can be expensive, but if the driver is at fault you are entitled to be reimbursed for reasonable medical expenses and pain and suffering caused by the injuries. In some cases, medical care providers will accept a lien in lieu of payment.
Next Steps
It is a good idea to consult with an attorney before speaking with the insurance company. If the insurance company phones you, it is your right to refuse to speak with them. If you choose to represent yourself, read through the Nolo Press book: How to Win Your Personal Injury Claim. (More details below)
Criminal or Civil or Both?
Your case may involve a crime. If the driver was acting recklessly, on purpose or under the influence of drugs or alcohol, California Penal Codes which may apply include (but are not limited to): assault; assault with a deadly weapon; battery; drunk or drug-influenced driving; hit and run; reckless driving. Even if you were not injured, you may still be entitled to recourse under the criminal law if you are the victim of a crime.
If you are the victim of a crime, you may be entitled to state victim support services. Information is available from the Victims of Crime Resource Center: 1-800-842-8467. If your injuries result from the driver's criminal activity, you may be entitled to punitive damages in addition to pain and suffering.
If you are a victim of a crime, you are entitled to a police report and an investigation. If a police report was not taken at the scene, go immediately to the police station to make a report. In a few days, you can request a copy of the report. Check it for accuracy and report inaccuracies back at the police station. Follow up on the investigation with phone calls and letters. Speak with an attorney regarding your rights.
Do You Need a Lawyer?
If you are severely injured, have long-term or permanent disabling injuries, or were injured in the course of a crime, you should consult with an attorney as soon as possible. If you do not know of a good lawyer you can trust, call your local bar association. Free consultation in injury cases is provided by the Bar Association of San Francisco: 415/989-1616.
If your injuries are minor and your case uncomplicated, you may want to attempt to handle your case on your own. Benefits of representing yourself include: self-empowerment and considerable savings on fees. If you are at fault, your injuries are minor, and/or the driver is unknown or uninsured, it may be difficult to find an attorney who will help you on a contingency basis (contingency = instead of paying the attorney by the hour, the attorney takes a proportion of your settlement). To help you determine if self-representation is a good choice, read the first chapter of the Nolo press book: How to Win Your Personal Injury Claim available online at www.nolo.com or call: 1-800-992-6656. This book is also available at the Public Library and at the free legal library at the Monadnock building on Market Street. These libraries also carry extensive resources in Small Claims Court instruction.
Statute of Limitations
You have a limited time to sue someone, after which no lawsuit can be filed by the injured person to seek compensation for his or her injuries. In California, the time limit is generally one year from the date of the accident. However, there are exceptions for cases involving the government (shorter time limit) and for hidden injuries (sometimes extends the deadline). If you have still not settled your claim within nine months of the accident, you may wish to file the papers for your lawsuit. Although filing the papers triggers other filing deadlines, it does not mean you have to immediately begin a court case. Filing your lawsuit protects your right to proceed with your case after one year from the accident.
Who is at Fault?
Just because the car is bigger, does not necessarily make the driver at fault. For example, a bicycle illegally cutting across traffic in the middle of a block might be at fault for being struck by an unwitting truck. However, fault can be shared. If the truck driver had plenty of time to stop, but had been negligently distracted by his cell phone, the fault may be partially his. Usually, you don't need to prove fault. As long as you make a reasonable argument that an insured driver was negligent, the insurance company will usually settle the claim. Insurance companies will usually prefer to pay a nominal claim settlement rather than pay the expense of going to court.
Who do You Collect from?
If the accident was the fault of several drivers, or even someone outside of a car who caused the hazard, the law usually permits you to sue any and all of them. It is up to them to settle amongst themselves who should get reimbursed. If the driver was working or in a company-owned vehicle, the employer may be liable. You can't get multiple settlements, but you can sue the responsible party most likely to pay. This can be helpful if one responsible party is uninsured.
Be Heard
The SFBC works hard to protect the rights of bicyclists. Because police reports are not always taken, police statistics underreport the truth about violence against bicyclists. Please share your experiences with us so that we can keep more accurate records. Call us: 415/431-BIKE x307. And please let other cyclists know about these tips so that they can be prepared before they are involved in a traffic incident.
