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Bike law expert says PBOT’s crossbike markings create confusion

Bike law expert says PBOT’s crossbike markings create confusion

A crossbike at Tillamook and NE 15th. (Photo: Swanson, Thomas, Coon & Newton)

A crossbike at Tillamook and NE 15th.
(Photo: Swanson, Thomas, Coon & Newton)

This post is part of our Get Legal series made possible by Swanson, Thomas, Coon & Newton.

When we first reported on crossbikes in August, concerns about them began almost immediately. While some people were happy to see the increased visibility for bicycling traffic at crossings via the big green stripes, others said the treatment creates confusion.

Now Ray Thomas, the Portland lawyer who literally wrote the book on Oregon bike law, is adding his voice to the chorus of concerns.

Before we get into his critique, let’s review what crossbikes are and what problem they aim to solve.

The Portland Bureau of Transportation began thinking about them five years ago after seeing how effective curb extensions were for people on foot. When a sidewalk extends out into the roadway and someone is waiting at the corner, cross-traffic tends to stop more regularly. So PBOT Bike Coordinator Roger Geller figured the same would hold true for bikeway crossings. “We we wanted to indicate that these intersections aren’t just pedestrian crossings, these are also bike crossings,” Geller told us in a 2011 interview. “The green bike bars indicate this is an extension of the bikeway through the intersection.” (Note: PBOT uses crossbikes on neighborhood greenway routes.)

Since early August PBOT has painted 21 intersections with crossbikes.

PBOT's new crossbikes

The crossbike at N Williams and Rosa Parks Way as seen from the cross-traffic view.
(Photo: J. Maus/BikePortland)

But here’s the rub: Traditional crosswalks have a clear legal standing. Oregon law (ORS 811.028) says you must “stop and stay stopped” if someone is attempting to walk or roll across an intersection from the sidewalk or corner. However the same legal protection is not given to someone in the roadway so cross-traffic doesn’t have any legal obligation to stop when you pull up into a crossbike.

The crossbikes have also been painted in a way that’s inconsistent: Some of the green striping is connected to an existing white crosswalk, while in other intersections (and in official PBOT educational posters) there’s a separation between the crossbike striping and the crosswalk.

With that, let’s get to Thomas’ analysis:

“In my world as a bike lawyer I get involved when things go wrong, sometimes terribly wrong. And if a bicycle rider in a crossbike moves out from the stop sign to cross the through street [and is involved in a collision]… the hard legal question must be answered of who had the right-of-way.”
— Ray Thomas

In a nutshell, Thomas feels that crossbikes add further confusion to intersections. We say “further” because Thomas has already shared his concern for what he calls “ambiguous intersections” — places where a neighborhood greenway crosses a larger street and many people (on bikes and in cars) aren’t sure if bicycle riders have the right-of-way or not.

Here’s how Thomas explains his discomfort with the way the crossbikes have been implemented. “While one might argue that to the extent it is ambiguous whether or not a motorist must stop for a cyclist in a crossbike and the motorist stops when it is not legally necessary to do so, that is OK because it promotes safe passage of vulnerable roadway users. But Geller would certainly admit that the crossbike does not somehow expand the protection of the Oregon right-of-way in the crosswalk to the crossbike crossings.”

And here’s Thomas’ underlying legal analysis:

The Oregon Traffic Code clearly requires that a bicyclist must stop at a stop sign and wait to proceed until the way is clear by yielding to cross traffic on the through street (ORS 811.260(15)). However, if the bicyclist chooses to cross the street in the crosswalk then approaching traffic is required to yield to the bicyclist because in a crosswalk, bicyclists have the same rights as pedestrians (ORS 814.410(2)). (Please note that one still cannot leave a curb or other place of safety and move out in front of approaching traffic that is so close as to constitute an immediate hazard per ORS 814.410(1)(a), I mention that in case anyone was tempted to do such a thing).

In my world as a bike lawyer I get involved when things go wrong, sometimes terribly wrong. And if a bicycle rider in a crossbike moves out from the stop sign to cross the through street because, for example, approaching traffic from one direction has stopped for them, but then another automobile coming in the other direction does not choose to stop and hits the rider, or a car behind the stopped car pulls around and then hits the cyclist, the hard legal question must be answered of who had the right-of-way. And the answer has serious legal consequences for who will have to pay for medical bills and damages. And who might get a ticket.

If the bicyclist is in the crosswalk (defined in ORS 801.220) then the driver is required to yield the right-of-way. But if the rider is not in the crosswalk then the bicyclist has violated the stop sign law in ORS 811.260(15) by failing to stay stopped for traffic on the through street.

In my view, crossbikes create the same legal problems that exist for the ambigous intersection at North Going and Martin Luther King Jr. Blvd — when everything works fine, great; but when it doesn’t the bicycle rider is likely going to be left holding the traffic citation for disregarding the legal requirements of the stop sign.







In an ideal world, Thomas argues, the crossbike would simply be brought into the same legal definition of a crosswalk — especially since PBOT seems to have no qualms about striping them directly adjacent (with no gap) to existing crosswalks. If the crossbike markings simply expanded the width of the crosswalk then people using bicycles in the main roadway would have the same legal protection and right-of-way as someone trying to cross from the sidewalk. That sounds great; but there’s a hitch.

Back to Thomas:

PBOT educational poster. Notice how the green crossbike marking is separated from the white crosswalk marking.

PBOT educational poster. Notice how the green crossbike marking is separated from the white crosswalk marking.

There may be a legal “color problem” at work here because just as the crosswalk’s legal definition requires only “markings or other markings” it also stipulates that it must “conform in design to the standards established for crosswalks under in ORS 810.200.” That statute says the Oregon Transportation Commission, “shall adopt a manual and specifications of uniform standards for traffic control devices…” Since the State of Oregon’s adopted manual is essentially the Manual of Uniform Traffic Control Devices and the MUTCD says crosswalks must be marked with white paint, then there may be a problem of definition.

Section 3B.18 of the MUTCD, “Crosswalk Markings” states: “When crosswalk lines are used, they shall consist of solid white lines that mark the crosswalk. They shall not be less than 6 inches or greater than 24 inches in width.”

Since Thomas is a bike safety advocate, he has also thought of a solution. Why not simply make the crossbike stripes white? “If the wider crosswalk expands to include the crossbike within it, doesn’t that just expand the coverage of the umbrella of right-of-way in a good direction?” he wonders. “If we wanted to make the crossbike into an arguable fully legal crosswalk without the legal ambiguity then we would just cover the green paint over with white and be done with it, or put some green at each end of the white paint just to denote the new design.”

In conclusion, Thomas wants to raise awareness that crossbikes — as currently implemented — are not legal crosswalks. “For now,” he says, confusion is likely to reign and, “the best course of action is to assume cars do not legally have to stop.”

We asked PBOT to respond to Thomas’ concerns. Spokesman John Brady said, “The anecdotal feedback we’ve been getting is that the crossbikes are welcomed by people on bicycles and they haven’t been causing confusion. We believe there is a growing awareness among Portlanders that green paint is associated with bicycling. That growing awareness is also something that works against confusion.” Brady was quick to add that they aren’t relying only on anecdotal evidence. Portland State University researchers are studying the new markings for before/after behaviors.

Depending on how those observations play out, we might see some tweaks to the crossbike design in the future.

— Jonathan Maus, (503) 706-8804 – jonathan@bikeportland.org

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The post Bike law expert says PBOT’s crossbike markings create confusion appeared first on BikePortland.org.

DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas

DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas

Fighting for fixed gears in court

Take ’em to court.
(Photo J. Maus/BikePortland)

It’s been over nine years now since we first shared the concept of “citizen initiated citations” here on BikePortland. At that time it was a little-known statute. Today, people are a bit more aware of it; but it’s still not a process that many people have gone through.

Unfortunately however, it’s still needed. As the number of people who operate vehicles illegally shows no signs of letting up and enforcement resources remain abysmal, it’s often the only option for justice. With an unusually high number of collisions and other incidents reported lately, we’ve decided to publish this article from Ray Thomas, the Portland-based lawyer and expert on bicycling issues who’s been at the forefront of citizen prosecution for nearly a decade.

(Note: Thomas uses “drivers” in his article, but his advice can be used by any road user regardless of how they get around.) — Jonathan Maus

Citizen Prosecution of Dangerous Drivers: How You Can Do It for Yourself

Some drivers drive so dangerously that some action must be taken to protect others. It is usually the case that a bad driver will offend again-and-again. When a driver uses a motor vehicle to harass or intimidate, or drives in a way that will be a danger to others, the victim is left with a tough choice: ignore it and move on, or follow-up and go through the process to pursue prosecution.

The first step is to use a mental checklist to ensure you can later identify the driver, the vehicle, and the license plate number.

If we let dangerous episodes slide then the person who is most vulnerable, like a solo tourist unfamiliar with the area, or someone with a medical condition, may well be the next victim. If there are no witnesses there is little likelihood a hit-and-run driver will ever be apprehended and punished. While it may be a hassle to pursue a dangerous driver, if you are able to obtain the license plate number, and identify the car and driver, then you have sufficient information to consider doing something more than just letting it go.

The first step is to use a mental checklist to ensure you can later identify the driver, the vehicle, and the license plate number. Repeating it over and over to yourself as a little sing-song, writing it in the dirt on the side of the road, typing it into your cellphone, or asking a passerby to let you use a pen and paper are all possibilities.

The bottom line is this: You need to obtain and retain the basic information about your suspect.

Law Enforcement Assistance; If Help Is Available Use It

When a driver commits a dangerous traffic offense that results in an injury or amounts to harassment it is always important to call the police and ask that an investigation be conducted and that the person be charged for a crime or traffic violation. When the police respond and pursue the case then the system is working as it should and justice is usually served.

However, many times the police decide they are too busy or the situation is not clear enough for them to get involved. This does not mean the driver is any less guilty of engaging in a dangerous driving practice, only that the police do not feel they can push the case.

In some instances it may be best just to let the situation resolve itself with inaction (for instance, if a police officer agrees to talk to the dangerous driver about their driving but declines to cite them for some reason).

However, sometimes the evidence of a dangerous violation of the law is clear and the driver will likely go on to harass others if they are allowed to escape punishment. In these situations it is possible to pursue the driver in court through Oregon’s Citizen Prosecution Statute (ORS 153.058). The Citizen Prosecution Statute allows regular citizens to initiate an action on a traffic ticket, to subpoena witnesses and present evidence at a trial in traffic court. If the driver is convicted, then the conviction is a moving violation just like what would be received if a police officer had initiated the case.

We Can Do It Ourselves

Oregon law allows a citizen to initiate traffic violation prosecutions in state court, and police help is ordered to be provided. I repeat, police assistance is required by the Oregon statute. But remember, the Oregon statute of limitations for violations is only six months; if the action is not filed within that time then the right to pursue a citizen violation is lost.

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After the initial report is taken by the police or the traffic court clerk and the citizen signs the Oregon Uniform Citation and Complaint (a.k.a. the ticket), the completed paperwork is served on the offending driver by the police or court staff. The citation summons them to traffic court to face the charges in a non-jury trial in front of a traffic judge. At the trial the complaining citizen gives an informal presentation of the case, the judge hears evidence and testimony, and if convicted the bad driver receives a citation and fine for a moving violation – the same as if the ticket were issued by a police officer.

The process, known as an “Initiation of Violation Proceeding” is important for vulnerable roadway users – we usually get banged up the most in a collision with a car. Too many of these wrecks occur because some drivers fail to yield or share the road. These drivers are among the most dangerous drivers and it is important that their driving records reflect it. In addition some insurance adjusters fail to give adequate recognition to legal rights of non-motorized roadway users. Whether ignorant of the law or just hostile to the other side, these insurance adjusters see a collision case and instinctively favor their insured motorist.

Since only the most serious collisions involve law enforcement accident investigation, the person who is hurt after a clear cut violation of the traffic law by a motorist is often disappointed to learn that the driver (who was clearly admitting fault at the scene) is now claiming the other person was at fault. On the other hand if the official court record contains a citation and traffic court conviction of the driver, then the insurance adjuster will be hard pressed to ignore the true liability picture.

Follow The Recipe

The Oregon statute is detailed and task specific. It includes every step of the process. Few law enforcement personnel are likely to have direct experience with the process when it is initiated by a citizen; but most officers are very familiar with the Oregon Uniform Citation and Complaint form.

The law requires that the officer facilitate the process. If you dead-end with the officer who first responds then try the department non-emergency and/or traffic phone number. In rural areas, state police and sheriff officers share jurisdiction. The gravity of any injury and seriousness of the motorist’s traffic violation will greatly influence the officer’s response. Filing these cases over petty traffic standoffs is going to stress a tax-poor law
enforcement and court system struggling to contain Oregon’s dangerous traffic offenders. But in collisions resulting in injury in which the driver commits a clear violation of the traffic laws, a traffic violation conviction is an option that may be important later to clarify the legal cause of the accident and to make a legal record of the driver’s law violation.

How to Initiate a Citizen Initiated Violation Prosecution

First, learn the lingo and read ORS 153.058 so you can explain it to someone who has never heard of it and may not believe such an unheard of procedure exists until you actually show them the law (my firm’s website, www.stc-law.com, contains a how-to guide as well as forms and accounts from other citizens who have successfully used the process.

Once you have done the background research, here are your next steps:

1. Contact the officer who investigated your incident or facilitated exchange of traffic accident information, any other officer involved in your accident, the shift sergeant for that unit on that shift at the time of your accident, the commander for the unit, the executive officer’s office (Chief, Sheriff, whatever), the District Attorney’s office in your county, the City Attorney office in your city, the traffic department clerk in your local courthouse, or just about any staffer willing to speak with you about it in the courthouse or police station, and show them the statute and this article. If they don’t know about the process but are willing to ask someone about it, you will probably succeed in getting your case started if you are willing to allow the process to lumber up to speed.

Remember, you only have six months after the date of the incident to being these proceedings.

2. Once you get a law enforcement officer willing to start your violation proceeding then work through the process with them. They are supposed to create and send a summary of a complaint (which you may be required to swear to and sign), to the clerk’s office for issuance of a summons. The Oregon Uniform Traffic Citation and Complaint Form may be what most officers choose for issuance of the case. If an unhelpful person points out that ORS 153.058 says “A person other than an enforcement officer ‘may’ commence a violation proceeding…” so as to defeat your effort you must point out that the statute does not allow any discretion by the officer; the case must be commenced once the citizen’s complaint is lodged. You are the one with the discretion to do it or not, not the police or the court staff.

Further, the court has no discretion in issuing the summons as ORS 153.058 clearly states “the court ‘shall’ issue a summons to be delivered…”. There is some discretion provided to the court to amend or dismiss a complaint, but issuance of properly presented complaints should not be opposed.

3. Ask the officer who issued your case to help you find out about how to present your case. In traffic court you will be in the position usually occupied by the officer who wrote the ticket. Identification of the driver and presentation of evidence must be handled by you and your witnesses. The police or courts will help you issue subpoenas to other witnesses in advance of court. If you do not feel like you will be able to present your case then ask for help from the police officer or a friend.

Again, if you convince the judge at the trial that the defendant violated the law then the conviction that results will be like any other moving violation. If you need more help our office may be able to help, depending on the facts of your case.

Good luck! And if you’ve been through this process, please share your experiences and tips below.

— Ray Thomas – rthomas@stc-law.com

(Disclaimer: Swanson, Thomas, Coon & Newton law firm is a BikePortland advertiser and this post is part of an ongoing paid partnership.)


The post DIY prosecution of dangerous vehicle operators: A guide from Ray Thomas appeared first on BikePortland.org.

Get Legal with Ray Thomas: Passing on the right from a rider’s perspective

Get Legal with Ray Thomas: Passing on the right from a rider’s perspective

A ride with the family-3

Knowing how to legally pass on the
right can help you get to your destination
faster and help you breathe easier.
(Photo by J. Maus/BikePortland)

Today’s article will try to clear up confusion about how and when you are legally permitted to pass another vehicle operator on the right side of the roadway.

While Oregon law did not specifically authorize passing on the right before 2006, the law was clarified that year to follow the great majority of other states (and the Uniform Vehicle Code) in specifically allowing bicycle riders to pass other vehicles on the right when it can be done safely.

Bicycle riders complained for many years about the pre-2006 Oregon law that appeared to prohibit passing on the right when road users were sharing the same lane. In 2005, the Oregon legislature (thanks to lobbying by the Bicycle Transportation Alliance) voted to change the law so that passing on the right would be allowed “if the overtaking vehicle is a bicycle that may safely make the passage under the existing conditions” (ORS 811.415). The “new” law went into effect in January of 2006.

Here are the main points of the law that didn’t change in 2006:

  • You are permitted to pass on the right when a vehicle is in the same lane and turning left, so long as you (the passer) do not go off of the paved roadway in order to get around them.
  • Passing on the right in a bicycle lane (which is a separate lane from the regular traffic lane) is also allowed; but, as with all maneuvers, it must be done with “due care.”
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  • A bicycle rider may also leave the bicycle lane to pass “if the person is able to safely move out… for the purpose of passing another bicycle, a vehicle or a pedestrian” and “passage cannot safely be made in the lane” (as per ORS 814.420(3)(a)).
  • While riding your bicycle you are entitled to pass other vehicles (just like drivers do) even when a bicycle lane is not present. (Note that ORS 811.410 prohibits the overtaken vehicle from speeding up until they are completely passed.)

Here’s a closer look at the 2006 law:

Unsafe Passing on the Right.
SECTION 1.
811.415. (1) A person commits the offense of unsafe passing on the right if the person:
(a) Drives a vehicle to overtake and pass upon the right of another vehicle at any time not permitted under this section.
(b) Drives a vehicle to overtake and pass upon the right of another vehicle at any time by driving off the paved portion of the highway.

(2) For purposes of this section, a person may drive a vehicle to overtake and pass upon the right of another vehicle under any of the following circumstances:
(a) Overtaking and passing upon the right is permitted if:
(A) The overtaken vehicle is making or the driver has signaled an intention to make a left turn;
(B) The paved portion of the highway is of sufficient width to allow two or more lanes of vehicles
to proceed lawfully in the same direction as the overtaking vehicle; and
(C) The roadway ahead of the overtaking vehicle is unobstructed for a sufficient distance to permit passage by the overtaking vehicle to be made in safety.
(b) Overtaking and passing upon the right is permitted if the overtaken vehicle is proceeding along a roadway in the left lane of two or more clearly marked lanes allocated exclusively to vehicular traffic moving in the same direction as the overtaking driver.
(c) Overtaking and passing upon the right is permitted if the overtaking vehicle is a bicycle
that may safely make the passage under the existing conditions.

(3) The offense described in this section, unsafe passing on the right, is a Class B traffic violation.

In application, the 2006 law allows safe passing on the right which helps to make the flow of traffic smoother, and keeps bicycle riders from being stuck behind a line of exhaust-spewing motor vehicles.

Oregon law allowing bicycles to pass on the right is not unusual. The nationally recognized Uniform Vehicle Code Section 11-304(b) states that: “The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety.” With the changes in 2006, Oregon merely joined the great majority of other states that allowed the maneuver.

While it is possible to describe ways that passing on the right can be performed in an unsafe manner, the purpose of the law is to allow bicycle riders to move safely with and through traffic. A bicycle’s narrow footprint (relative to a car) allows the rider to fully utilize the standard width traffic lane and improve the roadway’s capacity to move traffic.

Thankfully, the law supports this common sense maneuver — but a law does no good if you don’t understand it and put it into action.

Browse our Get Legal with Ray Thomas story archives to learn more about Oregon bike law.

Disclaimer: This article is part of a paid promotional partnership between BikePortland.org and Swanson, Thomas, Coon & Newton.

The post Get Legal with Ray Thomas: Passing on the right from a rider’s perspective appeared first on BikePortland.org.

Get Legal with Ray Thomas: Passing on the right from a rider’s perspective

Get Legal with Ray Thomas: Passing on the right from a rider’s perspective

A ride with the family-3

Knowing how to legally pass on the
right can help you get to your destination
faster and help you breathe easier.
(Photo by J. Maus/BikePortland)

Today’s article will try to clear up confusion about how and when you are legally permitted to pass another vehicle operator on the right side of the roadway.

While Oregon law did not specifically authorize passing on the right before 2006, the law was clarified that year to follow the great majority of other states (and the Uniform Vehicle Code) in specifically allowing bicycle riders to pass other vehicles on the right when it can be done safely.

Bicycle riders complained for many years about the pre-2006 Oregon law that appeared to prohibit passing on the right when road users were sharing the same lane. In 2005, the Oregon legislature (thanks to lobbying by the Bicycle Transportation Alliance) voted to change the law so that passing on the right would be allowed “if the overtaking vehicle is a bicycle that may safely make the passage under the existing conditions” (ORS 811.415). The “new” law went into effect in January of 2006.

Here are the main points of the law that didn’t change in 2006:

  • You are permitted to pass on the right when a vehicle is in the same lane and turning left, so long as you (the passer) do not go off of the paved roadway in order to get around them.
  • Passing on the right in a bicycle lane (which is a separate lane from the regular traffic lane) is also allowed; but, as with all maneuvers, it must be done with “due care.”
We rely on financial support from readers like you.

  • A bicycle rider may also leave the bicycle lane to pass “if the person is able to safely move out… for the purpose of passing another bicycle, a vehicle or a pedestrian” and “passage cannot safely be made in the lane” (as per ORS 814.420(3)(a)).
  • While riding your bicycle you are entitled to pass other vehicles (just like drivers do) even when a bicycle lane is not present. (Note that ORS 811.410 prohibits the overtaken vehicle from speeding up until they are completely passed.)

Here’s a closer look at the 2006 law:

Unsafe Passing on the Right.
SECTION 1.
811.415. (1) A person commits the offense of unsafe passing on the right if the person:
(a) Drives a vehicle to overtake and pass upon the right of another vehicle at any time not permitted under this section.
(b) Drives a vehicle to overtake and pass upon the right of another vehicle at any time by driving off the paved portion of the highway.

(2) For purposes of this section, a person may drive a vehicle to overtake and pass upon the right of another vehicle under any of the following circumstances:
(a) Overtaking and passing upon the right is permitted if:
(A) The overtaken vehicle is making or the driver has signaled an intention to make a left turn;
(B) The paved portion of the highway is of sufficient width to allow two or more lanes of vehicles
to proceed lawfully in the same direction as the overtaking vehicle; and
(C) The roadway ahead of the overtaking vehicle is unobstructed for a sufficient distance to permit passage by the overtaking vehicle to be made in safety.
(b) Overtaking and passing upon the right is permitted if the overtaken vehicle is proceeding along a roadway in the left lane of two or more clearly marked lanes allocated exclusively to vehicular traffic moving in the same direction as the overtaking driver.
(c) Overtaking and passing upon the right is permitted if the overtaking vehicle is a bicycle
that may safely make the passage under the existing conditions.

(3) The offense described in this section, unsafe passing on the right, is a Class B traffic violation.

In application, the 2006 law allows safe passing on the right which helps to make the flow of traffic smoother, and keeps bicycle riders from being stuck behind a line of exhaust-spewing motor vehicles.

Oregon law allowing bicycles to pass on the right is not unusual. The nationally recognized Uniform Vehicle Code Section 11-304(b) states that: “The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety.” With the changes in 2006, Oregon merely joined the great majority of other states that allowed the maneuver.

While it is possible to describe ways that passing on the right can be performed in an unsafe manner, the purpose of the law is to allow bicycle riders to move safely with and through traffic. A bicycle’s narrow footprint (relative to a car) allows the rider to fully utilize the standard width traffic lane and improve the roadway’s capacity to move traffic.

Thankfully, the law supports this common sense maneuver — but a law does no good if you don’t understand it and put it into action.

Browse our Get Legal with Ray Thomas story archives to learn more about Oregon bike law.

Disclaimer: This article is part of a paid promotional partnership between BikePortland.org and Swanson, Thomas, Coon & Newton.

The post Get Legal with Ray Thomas: Passing on the right from a rider’s perspective appeared first on BikePortland.org.

Get Legal with Ray Thomas: What you need to know about hit and run

Get Legal with Ray Thomas: What you need to know about hit and run

Gresham-Fairview Trail gap at Burnside

(Photo by J. Maus/BikePortland)

Hit and runs are far too common in Oregon. Unfortunately, so is the feeling of helplessness about what to do about them. In the spirit that knowledge equals power, I’ve put together a primer on the laws surrounding hit and runs and what do to if you are ever involved in one.

Here’s the sad but true fact: If a vehicle operator* can escape a collision scene then the chances are they will get away without having to pay for the damage they caused and they can also avoid things like: arrest on an outstanding warrant; a DUI charge for driving/riding while impaired; a possible police search of the vehicle for drugs or contraband on board; a car with no insurance, or not having a drivers’ license.

If the perpetrator is ever caught (and they usually are), here’s what the law says about their crime.

Oregon Revised Statute (ORS) 811.700 makes it a Class A misdemeanor not to stop and remain at the scene of any collision where any property is damaged in order to exchange registration information and the name and address of the driver and any vehicle occupants, and upon request to show the driver license. Further, ORS 806.011 requires that proof of insurance coverage be carried in every motor vehicle.

We know this is a maddening crime and it’s even worse if it happens to you; but if you just give up before starting, there’s is no chance the person will ever get caught and held accountable.

If someone is hurt then ORS 811.705 makes “Failure to Perform Duties of Driver to Injured Persons” into a Class B or C felony. Included in the legal requirement where someone is hurt is the obligation to give “reasonable assistance” including transport for medical treatment.

The duties at the scene of a collision even extend to witnesses. ORS 811.715 requires that witnesses to an injury collision furnish their name and address to occupants or drivers of involved vehicles and makes it a Class C violation (non-criminal) to fail to do so.

What if it happens to you?

If you are the victim of hit and run call 911. If possible have witnesses give you all information about the fleeing party and retain their contact information. It is important that you go through the process because if you do not report the collision the police will not be able to find the fleeing suspect. And if you are injured it is important that you file a police report in order to make an insurance claim (yes, an insurance claim, your own car insurance may cover your injuries!).

About insurance

Oregon automobile insurance covers hit and run collisions where a person is hurt by a motor vehicle, even where the victim is on foot or a bicycle. Automobile insurers in Oregon are required to include in every policy what is called Uninsured Motorist Coverage which includes special Hit and Run coverage. However there are technical requirements for coverage so be mindful that one must follow certain basic rules:

  • First, the collision must be mostly the fault of the person who left the scene;
  • Second, a report of the collision must be made within 72 hours to law enforcement and the claim must be reported to the insurance company within 30 days;
  • Third, if there is a “vehicle” occupied or operated by the injured party it must be available for inspection by the insurance company.

Note that even if the hit and run suspect has caused the injury without actual contact with the injured person or their vehicle, this “phantom vehicle” claim can still be made so long as “the facts of the accident can be corroborated by competent evidence other than the testimony of the injured person”, ORS 742.504(g)(B). While this sounds like a tough requirement, if care is taken to gather evidence from the scene, gather witness information, and preserve any evidence showing the way the incident happened without an actual collision, then a successful claim may be made for all the damages including medical costs, wage loss, and pain and suffering.

Be persistent and follow through

If you or someone you know gets in a hit and run incident don’t give up without going through the steps necessary to report and follow through on each step. While the reason people take off from the scene of a collision is that a lot of times they get away with it, if you report it to the police and keep checking in with the investigating officer to learn about progress, at least you have done what you can. And make sure to check and see if there is existing insurance to cover damages.

We know this is a maddening crime and it’s even worse if it happens to you; but if you just give up before starting, there’s is no chance the person will ever get caught and held accountable.

*The ORS that refer to hit and runs, use the word “driver” as the default. I prefer the more mode-neutral term “vehicle operator” which makes it more clear that any type of vehicle operator using the public right of way — whether riding a motorcycle or a bicycles — can be found guilty of leaving the scene of a collision.

Browse our Get Legal with Ray Thomas story archives to learn more about Oregon bike law.

Disclaimer: This article is part of a paid promotional partnership between BikePortland.org and Swanson, Thomas, Coon & Newton.

The post Get Legal with Ray Thomas: What you need to know about hit and run appeared first on BikePortland.org.

Get Legal: Being “nice” is dangerous and could make you at fault in a collision

Get Legal: Being “nice” is dangerous and could make you at fault in a collision

Rosa Parks Way -3

Being nice isn’t so nice when it creates confusion.
(Photo by J. Maus/BikePortland)

Written by lawyer Ray Thomas of Swanson, Thomas Coon & Newton.

Some road users go out of their way (and beyond the law) to be “nice.” Being nice isn’t always a bad thing. Sometimes it involves giving somebody a break, or allowing a successful traffic merge; but other times — such as when a driver waves another driver through stopped traffic — there can be disastrous consequences.

When road users go out of their way to accommodate others when there is no legal authority for doing so, it creates real trouble later if someone gets hurt as a result of their “nice” gesture. In this column, I’ll go over some common scenarios where being what you think is good can actually be very bad.

Waving others through an intersection

In heavy traffic situations, most people attempt to honor the Oregon law prohibiting blocking, or “impeding traffic” (ORS 811.130) or “plugging” intersections so that cross traffic can get through (ORS 811.550 prohibits stopping “within an intersection.”) However, some drivers, in an attempt to be helpful, wave other drivers through without considering that someone on a bicycle in an adjacent lane may be lawfully occupying the area in the direct path of the left turning driver.

When a collision happens, many times the “helpful” driver is gone from the scene, leaving an injured person and a baffled driver behind wondering who initiated the collision.

When a collision happens, many times the “helpful” driver is gone from the scene, leaving an injured person and a baffled driver behind wondering who initiated the collision. Sometimes, when the “waver” stays behind it is possible to make a claim against their insurance company for failing to carefully assess other traffic before making the wave. In essence the waver is assuming responsibility for conditions being safe to make the left turn.

Before one attempts to wave someone through they should always do a shoulder check for walkers, bikers and other overtaking traffic to make sure that they’re not about to create a wreck for others road users.

Bike riders waving drivers across bicycle lanes

Sometimes a bicycle rider who’s nervous about a left or right turning car next to a bicycle lane will wave them through in an attempt to avoid a potential conflict. This maneuver endangers other overtaking bike riders or people walking in crosswalks who aren’t anticipating that the driver will suddenly start moving when they should have slowed or stopped in order to yield to the person in the bicycle lane (as Oregon law requires). This maneuver is particularly dangerous for bike riders who aren’t anticipating that a rider ahead of them has waved the driver through the bike lane.

Next time you consider doing this, think to yourself: Are you sure you want to avoid a potential conflict so much that you are willing to assume responsibility for other road users the driver might hit on their way across the road in front of you?

Passing other riders

Some riders attempt to facilitate overtaking cars’ efforts to pass a group or single rider, for example on a long climb where the riders are going substantially below normal motor vehicle speed. In these instances the lead rider will wave an overtaking car forward when it appears that the lane ahead is clear of oncoming traffic. However the helpful waver has invited what may be an unsafe passing maneuver. In these instances we recommend riding single or double file as far to the right as practical (as required by ORS 814.430). It’s best for riders to allow overtaking auto drivers to decide for themselves when it’s safe to pass — without inviting a passing maneuver which may cause a head-on or side-swipe collision.

People using crosswalks

One of the reasons Oregon Walks and other organizations changed Oregon law for walking in crosswalks was to create q legal trigger of the walkers’ right of way so that drivers know when to stop before they enter the kill zone. The Oregon crosswalk law (ORS 811.028(5)) states that drivers must stop for people walking in marked or unmarked crosswalks “when any part or extension of the pedestrian, including but not limited to any part of the pedestrian’s body, wheelchair, cane, crutch or bicycle, moves on to the roadway in a crosswalk with the intent to proceed.”

Riding on Alberta-1

Who knows what lurks ahead?

Under the current Oregon system, people who are hanging back on the curb but have not stepped or rolled off of the curb into the crosswalk (unless they are proceeding with a walk signal at a signalized intersection) have not yet exercised their right of way to the crosswalk. Many Oregon drivers (and bikers) are ignorant of crosswalk laws and fail to realize that it is not until the person has actually moved off of the curb and put a foot or bicycle wheel onto the crosswalk in the roadway that an obligation to stop is legally triggered.

The gratuitous granting of a right-of-way that does not yet exist only serves to lure people off of the curb and into a “double-threat” hazard situation because people driving in other lanes might have no idea what’s going on.

Further, ORS 814.040 states pedestrians must yield the right of way to vehicles outside of crosswalk (ORS 814.040 requires pedestrians to “yield the right of way to a vehicle upon the roadway when… crossing… at any point other than within… a crosswalk”). So if the “nice” driver waves someone across the street mid-block and another vehicle comes along and strikes the walker, the driver’s wave, in effect, lured the person into a position where they have no legal right to be.

Why does this keep happening?

Most problems involving right-of-way hazards like those discussed above occur because drivers fail to understand the basic rules of the road. The best solution for this problem is for everyone to familiarize themselves with the bicycle lane, crosswalk, and passing laws so that they know where they stand legally in these frequent encounters with other road users (start by checking out our free legal guides).

Every time we wave someone through or across a lane when the law grants no right-of-way to the recipient of the “favor” the possibility of a collision greatly increases. While it is somewhat ironic that being nice can be dangerous and illegal, the best practice is to save those favors for when someone is trying to merge into the lane in front of you.

Ray Thomas
(Photo © J. Maus/BikePortland)

This article is part of our monthly legal series with Portland-based lawyer and bike law expert Ray Thomas of Swanson, Thomas, Coon & Newton. (Disclaimer: STC&N is a BikePortland advertiser and this article is part of a paid promotional partnership.)

The post Get Legal: Being “nice” is dangerous and could make you at fault in a collision appeared first on BikePortland.org.

Get Legal: Auto insurance, biking, walking, and you

Get Legal: Auto insurance, biking, walking, and you

Charley Gee helps us work through the
wonk on insurance.

Welcome to our Get Legal column. This is usually written by noted local bike lawyer Ray Thomas. But this time we’ve got one of Mr. Thomas’s co-workers Charley Gee filling in. Gee, an attorney at Swanson, Thomas, Coon & Newton is also an expert on how bicycles fit into the legal fine print. Today he’ll unravel confusion that often exists around insurance. Specifically, how auto insurance policies impacts those of us who don’t drive much (or at all).

Q. I have an Oregon automobile insurance policy. What does that mean?

A. In Oregon, every automobile insurance policy has four areas of coverage: Liability, Personal Injury Protection (PIP), Property Damage, and Uninsured/Underinsured Motorist Coverage (UM/UIM).

Q. What is PIP?

A. PIP covers medical expenses and lost wages if you are injured in a collision. In Oregon, the minimum amount of coverage is $15,000. PIP is (usually) “first party” coverage which means your automobile insurance covers your medical bills and wage loss despite the collision being the fault of another road user.

Q. I ride a bicycle and walk places sometimes, do I need to buy an additional insurance policy that covers me when I ride?

A. It depends. In Oregon, your automobile insurance will cover you in some ways when you are walking or riding your bicycle. If you are injured in a collision with a motor vehicle, your PIP insurance will pay your medical bills. However, if you are injured in an accident that does not involve a motor vehicle, PIP will not cover you, but your health insurance would. If you hit and injure a pedestrian or another bicyclist while you are riding your bicycle, your automobile liability insurance will not apply. There are other insurance options available to cover your liability, such as homeowners/renters insurance or personal liability umbrella policies.

Q. I usually walk or ride my bicycle for transportation. I don’t own a car. Can I get insurance?

A. Yes, so long as you’re a licensed driver. Some national insurers offer insurance for drivers who don’t own their own cars. These policies usually need to be purchased through a broker or local agent, though. This coverage is very affordable and offer the same protection.

Q. Do I still need a big policy if I mostly walk or ride my bicycle?

A. Yes. It is just as important (if not more so) to have adequate insurance when you are riding your bicycle. In Oregon the amount of your UM/UIM insurance is the same as your liability insurance. Therefore higher limits means more protection for you as well as any other road user you may injure.

Q. Will my automobile policy cover my bicycle if it is stolen?

A. No. However, your homeowners/renters insurance policy might cover the loss.

Q. I was hit by a car while riding my bicycle and had to go to the hospital, how do I pay the bills? I have automobile insurance and health insurance.

A. Since you have your own automobile insurance, your PIP coverage will become the “primary” insurer to pay the bills. Any bills not covered by your automobile insurance will be paid by your health insurance. Additionally, any bill not paid by either of your insurers, like co-pays, can be submitted to the motor vehicle driver’s PIP insurer. Your insurers will then seek repayment from the negligent driver’s insurer in a process called subrogation.

Q. I was hit by a car by a car while I was walking. I had to go to the hospital. How do I pay the bills? I don’t have automobile insurance or health insurance.

A. In Oregon, pedestrians (and that includes bicycle riders in the context), can access the PIP coverage of a motor vehicle that hit them, regardless of whose fault the collision was. As a result, if you are struck and injured by a motor vehicle while walking, your medical bills and wage loss will be covered as if you had automobile insurance yourself.

Q. I was hit by a car while walking and injured. Now I can’t work. How do I recover my lost wages?

A. Your lost wages will be paid by PIP coverage, but not 100%. First, you have to be unable to work for two weeks. Even then you will receive only 70% of your gross pay up to $3,000 a month. The other portions of wage loss not covered will need to be recovered from the driver’s insurance company through a settlement or trial.

Q. I was hit by a car while riding my bicycle and my bicycle was damaged. How do I get it repaired?

A. Your property damage is covered under the automobile insurance policy of the car that hit you. Once you have a claim open with the insurer, take your damaged bicycle to a bicycle shop for a damage estimate. The damage estimate will need to contain the cost of repairing the bicycle. If the bicycle is a total loss the shop should provide you with the value of the bicycle, as a used bicycle with the components it had, at the moment before it was hit and its value now.

Q. I was hit by a car while walking and I don’t think I was hurt. Should I still file a claim with the driver’s insurance company?

A. Yes. First, sometimes injuries can stay “hidden” for several months. Second, by reporting a driver that hit you to their insurer, you are ensuring some repercussion (higher insurance rates) for their negligent driving.

Q. I was hit by a car while riding my bicycle and the driver did not have insurance. What can I do? I have automobile insurance.

A. Your insurance policy contains UM/UIM coverage which will cover you if you are hit by an uninsured or underinsured (damages exceed their policy) driver. Your insurer essentially steps into the shoes of the negligent’s driver’s insurance (if they had any).

Q. I was hit by a car while riding my bicycle and the driver did not have insurance. What can I do? I do not have automobile insurance.

A. First, file a police report. If you have medical insurance, that coverage will pay your medical bills. If you do not have medical insurance then you may need to find a treating doctor that will accept payments or treat you for a reduced charge. If the uninsured driver struck you while engaged in a crime (assault, driving under the influence) then you may be able to obtain compensation from the Oregon Crime Victim’s Fund.

Thanks Charley! And by the way folks, he’ll be watching the comment section for your questions and feedback.

This article is part of our monthly legal series sponsored by Swanson, Thomas, Coon & Newton.

The post Get Legal: Auto insurance, biking, walking, and you appeared first on BikePortland.org.

Get Legal: Doored? The law is on your side (but that might not be enough)

Get Legal: Doored? The law is on your side (but that might not be enough)

door zone warning stencil-10

(Photo J. Maus/BikePortland)

If you ever have the unfortunate luck of coming into conflict with another road user, it’s always a pleasure to find out the law is in your favor.

Usually, conflicts on the road relate to the question of who has the right to the same space at the same time. Having someone open their car door into you — a.k.a. getting “doored” — falls into this category. Usually a motor vehicle operator fails to see a bicycle rider and opens a door so close to their path that a collision or near-miss occurs. While defensive riding can go a long way toward avoiding this sometimes painful encounter, sometimes there is just nothing a rider can do — everything happens too fast.

Fortunately, this is one of those areas where the law is on the side of the bicycle rider. Here’s the relevant section of Oregon’s Vehicle Code (remember bicycles are “vehicles” too) that prohibits opening the door of any vehicle unless it is reasonably safe to do so:

ORS 811.490: Improper opening or leaving open of vehicle door; penalty. (1) A person commits the offense of improper opening or leaving open a vehicle door if the person does any of the following:

    (a) Opens any door of a vehicle unless and until it is reasonably safe to do so and it can be done without interference with the movement of traffic, or with pedestrians and bicycles on sidewalks or shoulders.

    (b) Leaves a door open on the side of a vehicle available to traffic, or to pedestrians or bicycles on sidewalks or shoulders for a period of time longer than necessary to load or unload passengers.

(2) The offense described in this section, improper opening or leaving open a vehicle door, is a Class D traffic infraction.

The scheduled bail amount for a Class D Traffic Infraction is $110.00, and the fine is the same. Note that the law makes it illegal not only to open the door when it interferes with people trying to get by, but it is also illegal to leave the door open longer than necessary to load or unload passengers.

One would think that the law is so clear-cut that disputes over who was at fault would never arise. Unfortunately that’s not the case.

From my experience investigating these cases, the motor vehicle driver is apologetic and completely willing to accept blame at the scene (in spite of the advice on many insurance identification cards which state, “do not accept fault for the accident”). But, by the time the motor vehicle operator thinks about it and talks to an insurance adjuster or attorney, their view of what happened suddenly changes.

The revised version goes something like this:

“I opened my car door with plenty of distance behind me for the approaching bicyclist to see it. If the bicyclist had been paying attention, he or she would have seen that my door was open and ridden around it. Since I only intended to have the door open long enough to get out of the car, the accident is mostly the fault of the bicyclist.”

Believe it or not, this argument is enough to inject a note of comparative negligence on the part of the person operating a bicycle into the equation in most cases.

The percentage of comparative fault works out to a pro rata reduction in the amount of damages, so the effect is significant. Add the fact that most of the members of any jury will identify primarily with the motor vehicle operator, not the bicycle rider, and you have a recipe for disappointment. Remember, under Oregon’s system of comparative fault, if a jury decides that the motor vehicle operator was partly at fault for opening the car door (less than 50%) but the person riding a bicycle was mostly at fault (more than 50%) for failing to pay close enough attention and to make a reasonable effort to avoid striking the open door, then the person riding the bicycle loses in court — even though the person operating the motor vehicle violated the vehicle code by his or her own admission.

I’ve found that in almost every car door collision case the person operating the motor vehicle is primarily at fault. However, it is essential in every case that the person riding the bicycle carefully remember and reconstruct the scene of the incident to demonstrate that there was not enough time to take necessary evasive action in order to avoid hitting the door. Usually, bicycle riders relate that things just happened too fast and there was simply not enough time to avoid the car door.

While it’s nice to have the law on your side, you also need to be prepared to make your case to an insurance adjuster. Knowing, and being ready to present in advance, Oregon’s law and a mental reconstruction of how the collision happened will prepare you to make a successful insurance claim.

Ray Thomas
(Photo © J. Maus/BikePortland)

This article is part of our monthly legal series with Portland-based lawyer and bike law expert Ray Thomas of Swanson, Thomas, Coon & Newton. (Disclaimer: STC&N is a BikePortland advertiser and this article is part of a paid promotional partnership.)

Get legal with Ray Thomas: How to fight for your property damage claim (Part 2)

Get legal with Ray Thomas: How to fight for your property damage claim (Part 2)

Now what?
(Photo by J. Maus/BikePortland)

(This is the second (and final) part of our in-depth look at property damage claims by Portland lawyer Ray Thomas*. See the first part here.)

V. Gear and Rental List

Sometimes riders are discouraged because the responsible driver’s insurance company fails to promptly pay on the property damage claim. In auto v. auto cases, property damage claims get settled promptly because claims adjusters are accustomed to providing a rental car while the damaged vehicle is in the shop getting fixed. The same law applies to bicycles – the bicycle rider is entitled to a rental vehicle or bus fare, ride-share costs or other reasonable expenses for the time it takes to get the damaged bicycle fixed and serviceable again. One tip for adding speed to the property damage disposition is to have the quote at the bicycle shop include the cost of a comparable rental bicycle by the day, week, and month so that the rider can let the adjuster know how the cost of delay is going to be transferred to the insurance company.

The same rules apply for other personal items such as helmet, panniers, clothing, and other personal property. If the clothing is new and you still have a receipt, it will be helpful for the bike shop in making an appraisal. If the property is older, the shop will need to know when you purchased it and the condition it was in prior to the collision. Finally, it is important that you save all property damaged so that you can show it to the adjuster if asked.

VI. ORS 20.080 – When the Offer is Unfair

We frequently hear from angry bicyclists who feel they are not being dealt with fairly in determining who was at fault in the accident, or the value of damaged property. Few bicyclists are willing to go to small claims court to advocate for themselves. Unfortunately, this means that riders frequently grudgingly accept “low ball” offers to settle property damage claims. One tool that does exist for bicyclists is a law that gives a victim a negotiating edge. ORS 20.080 provides that in claims for less than $10,000 if a thirty-day demand letter is sent to the responsible party and is not paid, and the victim gets a lawyer and files a successful lawsuit, the responsible party has to pay the amount originally owed, plus attorney fees and costs. In a simple property damage claim the attorney fees and costs could total several thousand dollars. If a bicycle rider is in negotiations and is being treated unfairly, it will probably be of assistance to mention this law because if the bicyclist has to go out and hire a lawyer to file a lawsuit and wins the case then the amount awarded as costs and fees may very well exceed the amount owed in the first place.

The statutory provision is contained in its entirety below:

ORS 20.080 Attorney fees in actions for damages for personal or property injury.

(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendants insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims). However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465 (Time and place of hearing), or not more than 30 days after the transfer of the action under ORS 46.461 (Counterclaims), an amount not less than the damages awarded to the plaintiff.

(2) If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.

VII. Conclusion

Property damage claims can be very frustrating for riders who are trying to represent themselves to get a fair recovery for their damaged equipment. Knowledge of the law helps to make the process a little easier, but, in the final analysis, fair payment on damaged property claims requires a willingness to spend the time necessary to present the proof of loss, and persevere through negotiations to obtain fair payment.

(*Ray’s law firm, Swanson, Thomas, Coon & Newton is a BikePortland advertiser and this article is part of our marketing partnership.

Get legal with Ray Thomas: How to fight for your property damage claim (Part 1)

Get legal with Ray Thomas: How to fight for your property damage claim (Part 1)

Now what?
(Photo by J. Maus/BikePortland)

(Publisher’s Note: We’ve split this article into two parts because Ray is an authority on this topic and he gets into some important details. Come back tomorrow for the finale. Also worth mentioning is that Ray’s firm, Swanson, Thomas, Coon & Newton, is a BikePortland advertiser and this column is part of our partnership. — Jonathan)

I. Introduction

Sometimes it’s tough to get fair treatment when a collision results in property damage but no personal injury. While it’s always better not to have to deal with a physical injury, there is not enough money involved from the contingent fee (1/3) on a property damage case for most lawyers to even justify opening a file, so most riders end up representing themselves. If you are going to go it alone it helps to know the lay of the land before you start. This article contains an overview of the law of property damage and some tips on how to get a fair amount for your damaged ride.

Fortunately, most bicycle collisions do not result in personal injuries. Instead, wheels get bent, helmets scraped and, if the accident is the motorist’s fault, a “property damage” claim is made against an insurance company. For bicyclists, property damage claims can be frustrating because they typically have little or no experience in legal matters and find themselves advocating for damages with experienced claims adjusters. Since the amount involved is usually small, the bicyclist ends up appealing to the claims adjuster’s sense of fairness. Most claims adjusters are not experienced riders and they are frequently shocked by the costs of bicycle repair and parts.

Property Damage Claims – The Basics
  • 2 year statue of limitations, or notice required within 180 days if against a public entity;
  • Comparative fault reduces damages by the percent attributable for the claimant, up to 51% if the bicyclist is most at fault – no recovery;
  • Measure of damages is “Diminution in Value” – the difference in value before and after the collision;
  • Get a written damage estimate on a form with the bike shop letterhead;
  • Don’t forget to save all damaged property and include all losses in your claim; and
  • If you are injured you can still obtain a property damage settlement and present your injury claim after you fully recover.

II. Comparative Fault

Since property damages are not recoverable unless the motorist is more than 50 percent at fault, Oregon’s law requires a potential defendant pay their percentage of fault only if it is greater than the bicyclist. This means that if the bicyclist is 51 percent at fault and a motorist is 49 percent at fault, the motorist completely escapes financial responsibility. But if for example the motorist is 80% at fault, and the bike rider is 20% at fault, the motorist must pay 80% of the damage under Oregon’s “Comparative Fault” law. This means that bicycle riders need to be prepared to show the legal basis for their damage claim, and adjust their damages down by their own percent of contribution to the wreck.

Typical shared fault scenarios include collisions that result from multiple factors, like when a rider fails to exercise “due care” after a motorist makes a driving mistake, such as when a rider panics and crashes after being cut off by a motorist when if the rider had done nothing there would have been no contact or impact.

Since the claims adjuster’s job is to pay as little as possible on a claim, any fault arguably attributable to the bicyclist will be pointed out as a reason to reduce the amount paid. It is essential during these discussions that a bicyclist know the basic Rules of the Road. If possible, be prepared to cite actual Oregon Revised Statute (ORS) numbers.

III. Diminution in Value – The Law of Property Damage

The law relating to property damage claims is technical. Many people believe that they should receive the amount of money they will need to replace their damaged property. Unfortunately, that is not the law. Instead, the bicyclist is entitled to the amount of money equal to the difference between the fair market value of the property immediately before, and immediately after, the occurrence. This is called the “diminution in property value”. Bicycles depreciate rapidly and often the market value of a used bicycle is considerably less than its original purchase price. In order to establish market value, it is best to take your bicycle to a bike shop and get the following estimates:

  • Value of the bicycle in the condition it was in immediately before the accident. In other words, the appraisal should be of the same year and model as your bicycle in the same condition. Most bike shops only sell new bikes. If you are having trouble, call around and find the name of a bike shop that sells used bicycles or will help you with your brand.
  • Cost of repair of the bicycle. Do this even if you are certain the bicycle is beyond repair.
  • Value of the bicycle in the condition it was in immediately after the accident. This amount is usually very low; what market value is there for a bent bike? The claims adjuster will almost certainly call the shop to verify your figures. If your bike is “totaled” the adjuster will want to pay the value of your bicycle before the accident minus its salvage value.

Frequently, bicycles have little or no salvage value. If you have a particular attachment to some of the components, such as that Terry saddle or that wonderful old Campagnolo crankset, let the adjuster know and they will frequently be willing to let you have these parts. It has been my experience that the adjuster will usually recognize that a bike has no salvage value and allow you to keep the damaged bike if it is indeed totaled. On the other hand, if the bicycle can be fixed, it is up to you whether you want to fix the bike or not. You are not entitled to receive more money because your bicycle had a particularly high sentimental value. However, if your bicycle was a rare bicycle, and had an unusually high monetary value, you are entitled to receive that greater value if it is damaged or destroyed.

Remember, the diminution in value of the bicycle may be much less than it would actually take to fix the bike. The law states that the person responsible for the damage need only pay the loss in value, not the cost of repair.

IV. The Statute of Limitations

The Oregon statute of limitations for property damage claims caused by negligence is two years unless the defendant is an agent for a public entity, in which case written notice of a claim must be provided to the appropriate authority within 180 days after the accident. In serious injury cases, it can be a year or more before the person has recovered enough to know what if any permanent physical impairments may have resulted; however, property damage claims can be resolved immediately after the collision. There is no tactical reason to wait to resolve the property damage claim, and if a bicyclist also suffered physical injuries any release of claims signed by the rider can be limited to property damage only so that the personal injuries may be pursued at a later time within the statute of limitations.

— Come back tomorrow for part two.