Liability Considerations in Bicycle Accident Cases: A Bike Law Refresher

WDC Journal Edition: Summer 2011
By: John Rather and Joseph McCarthy, Peterson, Johnson & Murray, S.C.

Introduction

According to the League of American Bicyclists, only 17% of bike crashes involve motor vehicles. Of that 17%, a little less than half are caused by bicyclist error such as riding on the wrong side of the road, making a left turn from the right lane, failing to yield when exiting a driveway, or disobeying traffic signals.[i] That means that for all the recent focus on increases in bicycle injury lawsuits, only roughly 9% of all bicycle crashes are caused solely by a negligent motorist.[ii] Despite this, the common perception is that when a car and bike collide, the motorist is to blame.

The purpose of this article is to provide an overview of the rights and responsibilities of bicyclists and those who interact with bicyclists to help defense attorneys better assess liability the next time a bike-related personal injury case is presented. The intent of this article is not to scold drivers or bicyclists. The authors are avid bicyclists, but they also drive to work every day.

Most of the rights and responsibilities of motorists and bicyclists are spelled out by Wisconsin law. Despite this, misconceptions of those rights and responsibilities continue to run rampant through driving and cycling communities alike, and many of those misconceptions carry over into evaluation of fault by counsel or a jury. Can bicyclists ride two abreast? (yes) Is failure to wear a bike helmet treated like failure to wear a seatbelt? (not entirely) Can a bicyclist “take a lane”? (sometimes) Can some guy in spandex go zooming by me while I walk down a trail just because he yells “on your left” as he goes by? (more or less) Understanding the rights and duties of bicyclists and those who interact with bicyclists is essential to successfully handling any bicycle-related personal injury case.

I. Bike Law Basics

A bicycle is a bicycle, except when it is a vehicle or a pedestrian. Generally speaking, a bicycle is a vehicle when it is being pedaled on a roadway or highway. When a bicycle is a vehicle, its rider is entitled to the same rights and subject to the same responsibilities as the driver of a car. At the same time, a bicycle is a bicycle as defined by statute, entitling its rider to certain additional rights and subjecting its rider to certain additional restrictions and duties. Finally, when bicyclists dismount their bikes, they become pedestrians.

A. Bicycles on Roadways

  • Bicycles are permitted to travel on most roadways, except freeways or where a sign specifically excludes bicycles.[iii] Bicycles are considered “vehicles” when traveling on a roadway.[iv] When on a roadway, bicyclists are granted all of the same rights and are subject to all of the same duties as the drivers of cars or other common motor vehicles.[v]
  • Bicycles should generally be ridden on the right-side of the road in the same direction as traffic.[vi] Of note, this applies only where the bicycle is moving “at less than the normal speed of traffic” then existing.[vii] If a bicycle is able to keep up with traffic, it is not under an obligation to stay as far right as practical (though it must still observe the speed limit). If on a one-way street, a bicyclist may ride on either side of the road.[viii]
  • Bicycles are not relegated to being ridden in the gutter. Bicyclists should ride as far to the right as practicable (not possible), except when: (1) overtaking a vehicle proceeding in the same direction; (2) preparing for or executing a left turn; or (3) reasonably necessary to avoid unsafe conditions including parked or moving vehicles, pedestrians, surface hazards, or substandard width lanes.[ix] The third exception is the most important. A “substandard width lane” is a lane too narrow for a bicycle and vehicle to travel safely side-by-side within the lane (accounting for the three-foot buffer zone bicycles must give parked cars and moving cars must give bicycles).[x] This means that where a lane is partially occupied by parked cars or is too narrow for a bike and car to travel side-by-side, the bicycle is entitled to “take the lane” and ride in the middle. In such cases, a car may not pass the bicycle unless it can do so safely and legally. There may be times when a motorist has to just follow the bicycle.
  • The operator of a motor vehicle passing a bicyclist shall exercise due care and leave a safe distance between the bicycle and the vehicle, and in no case give the bicycle less than 3 feet of clearance, when passing and until safely past.[xi] If a motorist leaves less than 3 feet of room and a bicyclist swerves to avoid something, colliding with the vehicle, the motorist is likely to be found at fault for the accident. The 3 feet of clearance is the most important rule a motorist must observe when encountering a bicycle, and the failure to follow this rule when an accident occurs will likely result in a finding of fault against the motorist regardless of other circumstances.
  • Bicyclists may ride two abreast on any roadway as long as other traffic is not impeded.[xii] This is open to some interpretation in situations like passing zones, where a vehicle can pass bicycles riding 2 abreast safely, but cannot do so without diverting into the oncoming lane. This is one of the most hotly debated points of contention between motorists and bicyclists, especially on rural roads, but it is also one of the least clearly defined.
  • A bicyclist passing a stopped or moving vehicle is required to exercise due care and must give at least 3 feet of clearance, just as a motor vehicle must do for a bicycle.[xiii] This is also smart biking, as it prevents bicyclists from being “doored” by parked cars. However, it also reduces the amount of space available for a bicycle and a car to traverse the same lane, and may result in a “substandard width lane” (as discussed above), wherein bicyclists are then encouraged to ride in the middle of the lane for maximum visibility and protection.
  • Bicyclists are required to use hand signals to indicate an intent to stop, turn left, or turn right.[xiv] Hand signals are required within 50 feet of a turn or stop, but they are not required continuously.[xv] An exception to the rule requiring hand signals occurs at controlled intersections, where bicyclists need not signal intent to stop.[xvi] However, if a bicyclist intends to stop anywhere other than a controlled intersection, he or she must properly signal.
  • Bicyclists turning left must make the turn from the left-most lane.[xvii] This means bicycles often have to change lanes from the furthest right lane (unless on a one way street) to the furthest left lane to make a left turn. This differs from motorists, who can travel in the left-most lane for their direction of travel (recall that bikes are relegated to the right-most lane when traveling straight on a multi-lane road). Even when executed properly, moving from the right side of a multi-lane road to the left to execute a left turn increases the chances for confusion and accidents. However, it is a maneuver bicyclists are required to make and one that must be accommodated by motorists.
  • Bicyclists are required to yield to pedestrians in the same manner as any other vehicle.[xviii] They are not entitled to “squeeze” between pedestrians or pass a vehicle yielding to pedestrians regardless of whether a traffic signal would otherwise permit them to do so.
  • Bicyclists may cross an intersection by crosswalk, but must obey all rules applicable to pedestrians when doing so. However, bicyclists generally need not dismount in order to do this.[xix]
  • Whether a bicycle is allowed on sidewalks and under what conditions is a matter of local ordinance.[xx] However, when bicycles are allowed on sidewalks, they must yield to pedestrians, and bicyclists must give an audible warning when passing pedestrians in the same direction of travel.[xxi] Many local ordinances define areas where riding is prohibited, such as where buildings immediately abut a sidewalk. Always check city ordinances as they may impose any number of additional restrictions on bicyclists and their conduct.
  • A bicyclist can proceed through a red light if he or she has been stopped for 45 seconds, there is no other vehicle waiting at the same light, and there is reason to believe that the light is actuated by motor vehicles.[xxii] However, contrary to common practice, a bicycle cannot slow, check for traffic, and then roll through a controlled intersection.
  • Bicyclists operating at night must have at least a white front headlight and a red rear reflector. This is required regardless of whether the bicycle is operating on a road, path, or sidewalk.[xxiii] A rear red light may be used in addition to, but not in lieu of, the red reflector.[xxiv]
  • A bicycle may not carry more people than that for which the bicycle was designed.[xxv] Generally, this means one seat/saddle per person.
  • A bicyclist need not have two hands on the handlebars at all times.[xxvi] While there is no law against riding with no hands on handlebars, doing so would be hard to reconcile with the duty of management and control which bicyclists must observe just like motorists.

The above is significant as much for what a bicyclist can do as what a bicyclist cannot do. There are maneuvers we often see and assume are wrong, but they are either so common that they are ignored or are done so brazenly that we are left to wonder if there is an exception of which we are unaware. These include running red lights/stop-signs, riding the wrong way down a one-way street, weaving between the sidewalk and the roadway, riding across the centerline on rural roads, etc. As a general rule, if it would be negligent for a motorist to do it, it is likely negligent for a bicyclist, too. However, motorists and their counsel should remember that—right or wrong—even if a bicyclist acts negligently, if the motorist was negligent, too, a jury very well may find the motorist more at fault regardless of strict application of the statutes.

B. Interaction Between Cyclists

Bicycling is often a social activity. It is not uncommon to see bicyclists riding side-by-side or in groups in towns or on rural roads. While the standard of care for motorists is well-defined by statute, the standard of care between bicyclists is largely undefined and consists mostly of common sense and social norms. Understanding the generally accepted standards of care between bicyclists will help in evaluating whether a bicyclist acted within those norms or acted negligently in causing injuries to others.

A bicyclist overtaking another bicycle has the obligation to do so in a safe and reasonable manner. The overtaking rider should announce that they are there and they are passing. Like cars, bicyclists should avoid passing on the right. The term, “on your left” is the most common term used when passing. It is not uncommon to see bicycles riding in tight packs (sometimes referred to as a “peloton” in racing), which limits a bicyclist’s ability to see or maneuver. When bicyclists travel in a group, the lead bicyclists commonly point to or verbally notify followers of gravel, pot holes, or other obstacles in the road. A following bicyclist should be looking ahead as far as possible though and should not rely solely on the leading bicyclists. The interplay between these responsibilities is an area of debate even among avid bicyclists. Most importantly, bicyclists must ride straight and predictably. Most bike-bike collisions occur when a bicyclist does something unexpected. The number of ways in which a bicyclist owes a duty to another bicyclist is endless, but, in the authors’ opinion, the failure to adhere to these 3 principles probably covers approximately 90% of all bike-bike collisions.

C. Bike Lanes and Bike Paths

1. Bike Lanes

“Bicycle lane” means that portion of a roadway set aside by the governing body of any city, town, village, or county for the exclusive use of bicycles.[xxvii] By definition, then, a bike lane is still a portion of the roadway, and therefore, bicyclists are still entitled to all rights and are subject to all duties as discussed above. The only difference when there is a bike lane is the demarcation (painted or otherwise) of the three-feet buffer zone, which must normally be observed anyway. The bike lane logically creates a presumption that no motor vehicle will be in a bike lane unless necessary to make a turn or perform another maneuver.

Bike lanes continue to become more common, but bicyclists cannot assume that a motorist can never legally be in a bike lane or that bicyclists are completely safe while within its bounds. Motorists must cross the lane to turn or park. In this sense, bike lanes are not truly exclusive as the statutory definition suggests. Conversely, motorists must recognize the bike lane and double-check for bicycles before entering that lane. Where a bike vs. car accident occurs in a bike lane, there will likely be a presumption that the motorist is at fault.

2. Bike Paths/Bike Ways

“Bicycle Way” means any path or sidewalk or portion thereof designated for the use of bicycles by the governing city, town, village, or county.[xxviii] These are more commonly referred to as "bike paths." In a sense, bike path is a misnomer as the paths are shared with pedestrians.

If a path is open to 2-way traffic, a bicyclist must ride on the right side of the path.[xxix] A bicyclist passing another bicycle or a pedestrian on a path must exercise due care and give an audible signal when passing in the same direction.[xxx] Because bicycles should not pass other traffic on the right, the typical signal is “on your left.” Due care is commonly understood to mean having sufficient control and traveling at an appropriate speed so as to be able to react and avoid problems—basic management and control.[xxxi] In reality, this is no different than one car overtaking another, save the customary greeting.

Bike paths are not roadways, and thus the rules of the road do not specifically apply to them. Thus, a bicyclist’s failure to act in accordance with the rules of the road on a bike path is not negligence per se. This does not mean, however, that the required conduct of bicyclists on a roadway will not serve as the appropriate standard of care on bike paths as well. For example, if a cyclist turns left without signaling and strikes another cyclist or a pedestrian, the failure to signal is likely to be a significant issue in determining liability.

Bicycles traveling on a path must obey all traffic signals or signs facing the roadway which runs parallel and adjacent to the path.[xxxii] However, what constitutes a roadway parallel and adjacent to a path is somewhat subjective. Some paths run close to, but not directly next to, roadways. When the roadway’s signals are controlling for traffic on the bike path is open to debate.

Many intersections between paths and roads are uncontrolled. In such situations, there is typically a crosswalk across the road. Motorists should use care when approaching an intersection with a bike path and assume there is a duty to yield if a bicycle or pedestrian is present. Conversely, a bicyclist should not cross a road on a bike path without first establishing the intentions of the motorist, as the presence of a cross-walk should not be interpreted as a green light. As a practical matter, the motorist and bicyclist should acknowledge each other and signal intent before either proceeds. A momentary awkward “you go” waive is better than a collision. When an accident occurs, fault is more likely to be placed on the party that assumed the right of way and rushed through the intersection.

Some increasingly argue that a bicycle should not be on the road when there is an available bike path, or, if the bicyclist intends to ride fast, that he or she should be on the road instead of a congested multiuse path. Neither position is legally correct. Bicyclists have the right to ride on virtually any road (save freeways or roads where bicycles are specifically excluded), regardless of whether there is a path adjacent to the roadway which could arguably be less congested or safer.[xxxiii] Likewise, unless there is a contrary ordinance, there is no speed limit on a bike path. A bicyclist may travel as fast as he or she pleases so long as he or she can do so safely and without causing danger to others on the path.

There is no published Wisconsin case holding that a bicyclist's choice to ride on the road when an adjacent bike path is available, or vice versa, constitutes contributory negligence. It is doubtful that either argument would be allowed by a court because neither theory is an accurate statement of Wisconsin law. That said, congestion on a bike path will still necessitate reduced speed by bicyclists just like rush hour traffic prevents a motorist from traveling at highway speed. As bike paths become more and more common, it will not be surprising to see changes to Wisconsin law to more directly address some of these issues. However, at present, a bicyclist is entitled to travel by road or by path, whichever he or she chooses.

II. Insurance and Bicycles

A. Liability Coverage

If a bicyclist causes an accident which results in damages, the most likely source of liability insurance coverage is the bicyclist’s homeowner’s or renter’s policy. Homeowner’s policies provide personal liability coverage for claims or suits brought against an insured for damages caused by an occurrence. Personal liability follows an insured on a bicycle just like it does in the myriad of other situations where an insured is out in public and negligently causes an injury to another. Thus, if a bicyclist is found liable for an accident, coverage is most likely to come from the bicyclist’s homeowner’s or renter's policy. Additional coverage may also exist under an umbrella policy.

B. UM/UIM Coverage for Bicyclists and as a Result of Bicyclists

Uninsured and underinsured motorist coverage is personal and portable and follows an insured on his or her bicycle.[xxxiv] In the words of the Wisconsin Supreme Court, UM/UIM coverage follows an insured “wherever he may go, be it in an unowned vehicle, on a motorcycle, on a bicycle, whether afoot or on horseback or even on a pogostick.”[xxxv] Thus, a bicyclist hit by an underinsured or uninsured motor vehicle may make a claim under his or her UM/UIM policy.

The converse is not true. An insured driver cannot make a claim for UM/UIM coverage as a result of damages caused by an uninsured or underinsured bicyclist. A bicycle is a vehicle, but it is not an underinsured or uninsured motor vehicle as defined by statute (and as consequently applied by policies).[xxxvi] The definition of “underinsured motor vehicle” and “uninsured motor vehicle," unsurprisingly, includes “motor vehicle," a term also defined by statute.[xxxvii] The definition of “motor vehicle” does not include bicycles.[xxxviii] As a result, bicycles do not constitute underinsured or uninsured motor vehicles, not due to the types of coverage or conduct, but simply because they are not "motor vehicles." Therefore, if a bicyclist causes an accident but does not have adequate insurance or any insurance at all, the injured party will not be able to make a UIM or UM claim.

III. Contributory Negligence of Cyclists

In addition to the common forms of contributory negligence one would think of in an auto-accident case, there are several factors that are somewhat unique to bicyclists. This section highlights a few, but is by no means exhaustive.

A. Helmets

Most people agree that wearing a helmet while biking is a good idea. However, Wisconsin does not have a statute requiring bikers to wear helmets. There are a number of municipalities that have passed ordinances requiring helmets for bikers. Some of these ordinances limit who is subject to the law, either by age or by where the bicycle is being used.[xxxix] Regardless of the law, the authors of this article cannot stress enough that helmets are a must for all bicyclists. Whether 5 or 50 years old, whether riding to the store or to the next town, wear a helmet.

Failure to wear a bike helmet may be contributory negligence where the lack of a helmet is a substantial factor in causing an injury (typically a head injury). By contrast, the statutes provide that failure by the operator or passenger of a motorcycle, ATV, or snowmobile to use protective head gear cannot reduce recovery for injuries or damages in a civil action.[xl] Importantly, bicycles are conspicuously absent from this list. Moreover, there is no cap on the percentage of contributory negligence that may be assigned to an injured party based on his or her failure to wear a bike helmet, in contrast to the 15% cap for seatbelts. Thus, the failure to wear a bike helmet is not negligence per se, but there is no reason to believe it cannot constitute contributory negligence where the failure to wear a helmet is linked to the resulting injury.

B. Age of Bicyclist

In cases involving minor children riding bicycles, the age of the child should be taken into account when assessing contributory negligence. For example, while a bicyclist is not permitted to dart out into traffic, whether doing so is contributory negligence often involves weighing whether the bicyclist could appreciate the responsibility. Because many bicyclists are children, age is often an issue in this analysis.[xli]

C. Headphones

There is no state law against riding a bicycle with headphones, but some municipalities have ordinances banning the practice.[xlii] A bicyclist who cannot hear horns or traffic may not be fulfilling his duty of lookout. However, even if wearing headphones is unsafe, doing so would likely only constitute contributory negligence where the reduced ability to hear was causal to the accident or injuries (such as failure to hear a horn).

D. Other Possible Forms of Contributory Negligence

  • Not properly inspecting equipment. Like any other vehicle, a bicycle must be kept in proper working condition. If a bicyclist fails to properly maintain his or her bicycle and a mechanical failure leads to a loss of control and results in an accident, the failure to properly maintain the bicycle may be causal negligence.
  • Not knowing how to operate equipment. Virtually no two bicycles are alike, and understanding the characteristics and equipment of a particular bicycle is essential to safe operation. For example, a bicyclist who is new to clip-in pedals and fails to stop due to his or her lack of familiarity with the equipment may be negligent if he or she hits a pedestrian as a result. Any deposition of a bicyclist should involve a detailed discussion of his or her knowledge, maintenance, and experience, both in general and with specific reference to the bicycle in question.
  • Riding beyond experience or means (e.g., speed, terrain, traffic, proximity to bikers or pedestrians). Bicyclists can ride on practically any roadway, but they must stay in their comfort zone. If a bicyclist is new to riding on streets, he should not attempt to commute through downtown Milwaukee traffic the first day. Likewise, a bicyclist that is new to group-riding should not draft off another bicyclist an inch from their wheel the first day out. A bicyclist who puts himself into an unknown situation beyond his knowledge or abilities increases the likelihood of foreseeable harm to himself or others.
  • Lack of visibility. Visible clothing, especially at night, is essential to safety. If bicyclists ride in less than perfect conditions (e.g. low light or fog) and wear black or other low-visibility clothing, they may not be adequately providing for their own safety. Conversely, a bicyclist's failure to wear bright clothing in circumstances where it is reasonable to expect other drivers to be able to see the bicyclist is not causal negligence. Were this case, we would all be forced to drive red cars. Visibility is always important to bicyclists, but the lack of conspicuous clothing is only likely to be a source of negligence where the conditions suggest a reduced ability to be seen by motorists and the bicyclist did not take reasonable steps to increase visibility.

Conclusion

The misconceptions about the rights and responsibilities between bicyclists and those they interact with, including motorists, can seriously harm a practitioner’s ability to properly evaluate and litigate a personal injury case involving a bicycle. The next time you handle such a case, we hope you will take a second to reread this article as you assess who was at fault and how your client’s actions are likely to be perceived by the law and by a jury. Above all else, if you get on a bicycle, and we hope you will, please wear a helmet.


[i] Bicycle Federation of Wisconsin

[ii] Id.

[iii] Wis. Stat. §§ 346.02, 346.16(2).

[iv] Wis. Stat. § 340.01(5).

[v] Wis. Stat. § 346.02(4)(a).

[vi] Wis. Stat. § 346.80(2)(a).

[vii] See id.

[viii] Wis. Stat. § 346.04(1m).

[ix] Wis. Stat. § 346.80(2)(a).

[x] Wis. Stat. § 346.80(1).

[xi] Wis. Stat. § 346.075.

[xii] Wis. Stat. § 346.80(3)(a).

[xiii] Wis. Stat. § 346.80(2)(c).

[xiv] Wis. Stat. § 346.35.

[xv] Wis. Stat. § 346.34(1)(b).

[xvi] Wis. Stat. § 346.34(2).

[xvii] Wis. Stat. §§ 346.34(1)1, 346.31(3).

[xviii] Wis. Stat. § 346.24.

[xix] See Wis. Stat. § 346.23.

[xx] Wis. Stat. § 346.94(1).

[xxi] Wis. Stat. § 346.804.

[xxii] Wis. Stat. § 346.37(a),(c)4.

[xxiii] Wis. Stat. § 347.489(1).

[xxiv] Appleton Municipal Code § 19-198(a).

[xxv] Wis. Stat. § 346.79(2)(a).

[xxvi] See, e.g., Wis. Stat. § 346.34(1)(b) (signaling); Wis. Stat. § 346.79 (one hand can be used to secure or carry objects).

[xxvii] Wis. Stat. § 340.01(5e).

[xxviii] Wis. Stat. § 340.01(5s).

[xxix] Wis. Stat. § 346.803(2).

[xxx] Wis. Stat. § 346.803(1)(a).

[xxxi] See Wis. J.I.—Civil 1105.

[xxxii] Wis. Stat. § 346.803(b).

[xxxiii] Wis. Stat. §§ 346.02, 346.16(2).

[xxxiv] Welch v. State Farm Mut. Auto. Ins. Co., 122 Wis. 2d 172, 181, 361 N.W.2d 680 (1985) (superseded by statute on other grounds).

[xxxv] Id. (emphasis added).

[xxxvi] See Wis. Stat. § 632.32(2)(e) and (f).

[xxxvii] See Wis. Stat. § 632.32(2)(at).

[xxxviii] Id.

[xxxix] See, e.g., Port Washington Municipal Code § 8.12.010.

[xl] Wis. Stat. § 895.049.

[xli] See, e.g., Blahnik v. Dax, 22 Wis. 2d 67, 125 N.W.2d 364 (1963).

[xlii] See, e.g., Green Bay Municipal Code § 29.403(15).