The Bike Law Interview: Daniel Flanzig and Jim Reed, Bike Law New York

By Bob Mionske

New York is a study in contradictions. The state is ranked 29th for bicycle-friendliness in the League of American Bicyclists’ 2014 annual ranking. And yet New York City is ranked as the most bicycle-friendly city in America by Bicycling magazine. Under the leadership of Janette Sadik-Khan, and with the support of then-Mayor Bloomberg, the city made dramatic strides towards integrating bicyclists into the city‘s fabric. And yet under the leadership of then Police Commissioner Ray Kelly, the police department has seemed to be engaged in a war with cyclists, periodically engaging in stringent crackdowns for violating imaginary laws, all in the name of “bicycle safety,” while simultaneously refusing to charge dangerous drivers for real violations that have resulted in serious injuries and deaths.

But New York is bigger than The Big Apple, stretching upstate, north to the Adirondacks, and west to the Finger lakes, and beyond, to the Great Lakes. To get a better picture of the state of cycling in the Empire State, I recently talked with New York bicycle accident attorneys Daniel Flanzig and Jim Reed, of Bike Law New York.

Daniel Flanzig

 

Jim Reed

***

Bob: Daniel, Jim, thanks for taking the time to talk with me. First, I’d like to welcome you to the Bike Law network. You are both well-known in New York cycling circles; you co-author Wheels of Justice, a monthly column for the New York Bicycling Coalition, and are both board members of the NYBC. Can you tell me how you first got involved in representing cyclists in New York?

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5 Ways to Improve 3 Foot Passing Laws

By Rick Bernardi

“3 feet to pass” is the law in California now. “3 foot laws” are a good idea—but that doesn’t mean that they can’t be improved. Here are 5 ways that 3 foot laws can be improved:

1. Eliminate exceptions to the laws that make them weaker: Under minimum safe passing distance laws (often called “3 foot laws”), drivers are supposed to leave a minimum distance (usually specified as 3 feet) between their vehicle and a cyclist when passing. But exceptions to the requirement to leave a minimum safe distance often make the laws less protective of cyclist safety than they should be. For example, California’s law allows drivers to make a pass closer than 3 feet if there isn’t enough room in the lane to leave at least 3 feet. And California isn’t alone in weakening safe passing laws. Eliminating these exceptions that weaken the safety laws will increase cyclist protection.

2. Link passing distance to passing speed: Under minimum safe passing distance laws, drivers are required to leave at least the minimum distance when passing a cyclist, but are still required to leave more than the minimum distance if safety requires a greater distance. One example of where greater passing distance is necessary is at higher passing speeds. New Hampshire has addressed this by requiring drivers to allow 1 foot more passing distance with each 10 MPH increase in passing speed. At 30 MPH, drivers are required to leave a minimum of 3 feet passing distance, at 40 MPH, drivers are required to leave a minimum of 4 feet passing distance, and at 50 MPH, drivers are required to leave a minimum of 5 feet passing distance. Linking passing distance to passing speed is a great idea, and should be the law in every state.

3. Change lanes to pass: One sure way to pass at a safe distance is to change lanes when passing. This is always legal, except on two lane roads divided by a double yellow line. But some state laws explicitly allow drivers to cross over the double yellow line (when it can be safely crossed) to pass a cyclist. When a lane is too narrow, it is safer to pass by changing lanes than to attempt to squeeze past while in the same lane. Safe passing laws can be strengthened by requiring drivers to change lanes to pass a cyclist when there is an available lane, and by allowing drivers to cross over the double yellow line to pass when it is safe to do so.

4. Make passing collisions prima facie evidence of an illegal pass: When drivers collide with a cyclist while passing, they will often attempt to shift the blame to the cyclist: “The cyclist came out of nowhere” is one common explanation for a crash. “The cyclist suddenly swerved into my path” is another commonly heard explanation. If the cyclist is seriously injured or killed, the driver’s explanation may be the only explanation we hear. More often than not, when a driver says that the pass was “safe” but the cyclist did something that doesn’t make any sense, it really means that the driver wasn’t paying attention, or was passing too close. But under the law, injured cyclists must prove that the driver’s pass was unsafe. 3 foot laws can be strengthened by making collisions prima facie evidence of an illegal pass. This means that when a driver is passing a cyclist and a collision results, the law would presume that the pass was too close. The driver could still rebut this presumption with evidence to show that the pass was not too close, but now the burden of proof would be where it properly belongs—on the driver who has the responsibility to pass at a safe distance.

5. Criminalize buzzing: Some close passes are the result of carelessness—the driver wasn’t paying attention and didn’t notice the cyclist, or the driver miscalculated passing distance. These errors are easily corrected: Drivers should be paying attention while driving, and when passing a cyclist, it is better to err on the side of safety, rather than trying to shave it to the minimum. When a driver makes a simple mistake, the result should be a ticket. But some drivers use their vehicles as weapons, and intentionally shave it as close as they can to intimidate the cyclist. When this happens, the driver is committing assault, and should be prosecuted. Safe passing laws can be improved by making intentional close passes a crime.

 

Bike Law - Bicycle Accident Lawyer

5 Reasons Why 3 Foot Passing Laws Are A Great Idea

By Rick Bernardi

Today, California’s new “3 Foot Passing law” takes effect, and is finally the law in the state. It’s been a long time coming—two previous attempts to pass the law met a fateful end at the tip of Governor Brown’s veto pen. The basic idea behind the 3 Foot Passing law is to explicitly spell out to drivers the minimum requirements for a safe pass. For a great summary of how California’s law will work, see California's "Three Feet for Safety Act": What you need to know.

But although many cyclists welcome the news, every time a 3 foot passing law is mentioned in the news, one or more cyclists will invariably ask what good the laws are. A common observation is “I’ve never seen the law enforced.” With that in mind, here are 5 reasons why 3 foot passing laws are a great idea:

1. They raise awareness: You can’t turn on the news or pick up a newspaper in California without seeing an article about the new 3 foot passing law. Whether drivers like the law, or hate it, a very public conversation about safe passing distance is now taking place in California. There might be some hermit somewhere in California who hasn’t heard about the new law, but it’s safe to say that most drivers have at least heard that they have to leave 3 feet of distance when they pass a cyclist. And that is huge.

2. They are a minimum, not a maximum: Minimum passing distance laws explicitly tell drivers that when passing a cyclist, they must leave at least the minimum passing distance specified by the law. This is a change from the traditional safe passing laws, which only require that passes be made at a “safe distance.” But the minimum passing distance is only a floor, below which the driver cannot go. The law still requires drivers to pass safely, and if the minimum passing distance is still too close to be safe, drivers are required by law to leave more than the minimum safe passing distance.

3. They change driver behavior: When drivers know what the law is, they can understand what is expected of them. Will some drivers continue to make unsafe passes? Sure. But some drivers will adjust their passing to comply with the law, and that will mean safer passes every time they pass a cyclist. Of course, some drivers won’t change their behavior on their own, which brings us to…

4. They are enforceable: This is the big issue for cyclists. What good is the law if it isn’t (or can’t be) enforced? Well the good news is the laws can be enforced. Police departments in Austin, Texas and Naples, Florida have shown the rest of the nation how it’s done. If the law isn’t being enforced in your town, sit down with your local law enforcement department and help them learn how it’s done.

5. Dangerous drivers can no longer argue that a buzz was “legal”: “Enforcement” isn’t just about ticketing drivers who pass too close. It’s also about holding dangerous drivers accountable after they pas too close and injure or kill a cyclist. When a dangerous driver passes too close and hits a cyclist, the driver will often try to argue that the pass was “safe” (and thus, legal), but that the cyclist made a mistake and got hit. But with minimum safe passing distance laws, a dangerous driver might still try to argue that the cyclist made a mistake, but can no longer argue that a close pass was “safe”or “legal.”
 

Bike Law - Bicycle Accident Lawyer

 

Careless

By Rick Bernardi

What do you do when no thought or provision is made for cyclists on the roadway?

It depends on who you are.

If you’re like most people, you’re likely to avoid that road altogether. A well-known study of Portland, Oregon residents’ feelings about bicycling for transportation indicated that the majority of the public would like to ride a bike if they felt it was safe. The study identified these would-be riders as the “interested, but concerned” segment of the population. These people are interested in riding a bike, but are concerned about getting hit by cars if they ride in traffic. So how many people are we talking about? A whopping 60% of the population. The question is, how do we alleviate their concern?

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Unsafe Pass Seriously Injures Oregon Cyclist

By Bob Mionske

Sep 05, 2014

Oregon Bicycle Accident Attorney Bob Mionske on "Safe Passing" laws and the three-foot rule

A cyclist was seriously injured in an Oregon bicycle accident on Wednesday morning. The cyclist, Richard Barrett, 67, of Corvallis, Oregon was riding his bicycle on the shoulder of NW Hill Road in McMinnville, Oregon at 9:30 A.M. when a tractor-trailer towing heavy duty farm machinery began to pass. Although the truck itself did not collide with Barrett, police believe that the farm machinery that was being towed struck Barrett, inflicting serious injuries.

Barrett received emergency treatment by first responders on the scene, before being taken to Willamette Valley Medical Center. From there, the injured cyclist was transported by Life Flight helicopter to Oregon Health & Science University in Portland, Oregon.

No citations were issued at the scene of the crash, but the investigation into the collision is continuing.

Oregon Bicycle Accident Lawyer

In Oregon, drivers are required by law to pass cyclists at a safe distance. However, Oregon’s safe-passing law is unique and distinct from the safe-passing laws of all other states. To understand what makes the law in Oregon unique, it helps to first establish what other states require.

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Oregon Cyclist Killed in Hit and Run Crash

Driver Was Reading Text Message When He Drifted Onto Shoulder and Hit Cyclist

By Bob Mionske

Sep 02, 2014


A driver who killed a cyclist near Rainier, Oregon has been arrested and booked into the Columbia County Jail on charges of First Degree Manslaughter, Felony Hit and Run, and a misdemeanor out of Washington County for Fail to Appear.

Oregon State Police report that the driver, 34-year-old Kristopher Lee Woodruff, of Vernonia, Oregon was driving westbound on Highway 30, west of Rainier, on August 30, and became distracted while looking at a text message on his phone. Woodruff was reported to have drifted onto the shoulder of Highway 30 at about 3 P.M., where he struck and killed Peter Michael Linden, 74, of St. Helens, Oregon. Linden was killed on impact with the ground.

Oregon Bicycle Accident Lawyer

Police report that Woodruff then fled the scene, but was arrested approximately 5 miles further down the road.

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The Bike Law Interview: Peter Wilborn, Bike Law South Carolina

By Bob Mionske

2014 will go down in bicycle history as the year that the Bike Law network began expanding in a big way. The brainchild of South Carolina bicycle accident attorney Peter Wilborn, the Bike Law network had its beginnings in 1998, when Wilborn opened the first Bike Law offices in South Carolina and Maryland. A few years later, North Carolina attorney Ann Groninger met Peter, and Ann brought North Carolina into the Bike Law network. And then, this year, Peter decided it was time to expand nationwide. To date, the Bike Law network has been established in sixteen states, and continues to grow.

I recently caught up with Peter to talk about the Bike Law network, his vision, and the road ahead.

Peter Wilborn 

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What To Do If You Are A Cyclist Involved In An Oregon Bicycle Accident

Bicycle Accident Attorney Bob Mionske explains:

A collision with an automobile is the greatest fear most people have about cycling; in fact, the fear of a collision with an automobile is the single greatest impediment to getting more people on bikes—many people want to ride, but don’t feel safe when bicycle infrastructure is inadequate or nonexistent. Although a collision with an automobile is the greatest hazard cyclists face, the good news is, it’s a relatively uncommon occurrence.

Most bicycle accidents are actually solo accidents involving a defect or some other hazard in the road or trail. Additionally, in most accidents, the rider is a child. In short, collisions between adult cyclists and automobiles are relatively rare occurrences. In fact, bicycling is not only one of the most popular physical activities you can enjoy, it is also one of the safest physical activities there is.

Occasionally a cyclist and an automobile will collide. Regardless of whether a bicycle accident is a solo accident, or involves a collision with an automobile, the accident is usually the result of somebody’s negligence (“negligence” is another way of saying “carelessness”). In a collision between a bicycle and an automobile that was the result of somebody’s carelessness, the accident could be the fault of the driver, the cyclist, or both the driver and the cyclist. However, most collisions between cyclists and motorists are due to the driver’s negligence.

Other causes of bicycle crashes involve negligence on the part of the local government responsible for the condition of the roads and trails, or failure of a bicycle or bicycle part due to negligence. And sometimes, a cyclist crashes with another cyclist, a pedestrian, or a domestic animal. In all of these types of crashes, somebody is typically at fault for causing the crash, and the cyclist is entitled to be compensated for his or her injuries if the crash occurred due to another person’s negligence. Because somebody is usually at fault in an accident, many cyclists prefer to call accidents “crashes” or “collisions,” instead of “accidents,” because they believe that the word “accident” means that nobody is to blame. In fact, “accident” simply means that the crash wasn’t the result of an intentional act—it wasn’t done “on purpose.”

Even so, although it is “an accident,” the crash is almost always the result of somebody’s negligence. If a cyclist is injured due to somebody else’s negligence, the cyclist has a legal right to be compensated for his or her injuries. Even if the cyclist may be partially negligent, the cyclist may still be entitled to compensation if the other person is also partially negligent. Negotiations with the driver’s insurance company will always focus on which party was negligent, and to what degree. If the cyclist and the insurance company can agree on the question of negligence and the amount of damages, the case will be settled. If they cannot reach agreement, it will be necessary for the cyclist to prove that the driver was negligent in a court of law in order to recover compensation for the injuries received.

Because the cyclist has the right to legal recourse in the courts, the vast majority of injury cases are settled out of court. However, because the legal and accident forensics issues can be complex, cyclists who have suffered anything more than very minor injuries should always discuss their case with an experienced Oregon bicycle accident attorney before talking with the driver or the driver’s insurance company.

What to do if you are involved in car-on-bike accidents and other crashes where somebody else may be at fault

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Running Interference

By Rick Bernardi

Last week, I had an errand to run, so I reserved some time on Zip Car. I pulled out of the parking space, drove around the block, and there, right in front of me, was a cyclist climbing up a long, steep hill.

Slowly.

My first reaction was a gut feeling that he was going to slow me down on my errand.

Maybe I could pass.

But then I thought about it. How much was he really going to slow me down? By a few seconds? A minute, tops? Maybe I could pass him, but why make him feel pressured? It’s a long, tough climb. I know, I’ve done it, and it’s not easy. He was as far to the right as he could get, doing his best to get up the hill without impeding drivers trying to get up the hill.

I changed my mind. I decided I could wait. Instead of passing him, I held back. I gave him some space on the road, and some time to climb to the next light. Other cars behind me might have passed him, but they couldn’t pass me. So we all held back, giving the guy some space on the road.

And you know what? Nobody honked at me. Nobody tailgated me, or revved their engines, or buzzed me, or yelled “get off the road!” The other drivers just waited patiently, just like me, as we all climbed the hill together.

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Lets Make Lemonade!

by Bob Mionske

Last Friday, it probably seemed like a relaxing, peaceful weekend was waiting for Santa Paula Police Chief Steven McLean. Instead, a firestorm of controversy erupted late Friday evening, and into Saturday, when a video that one of his reserve officers had made surfaced on social media sites.

In that video, the reserve officer, riding as a passenger in a car (and on her own time), made sarcastic comments about cyclists that she passed on the road. That was the entire point of her video—making mean comments about people riding bikes, in an attempt to be funny, in the same way the wannabe popular kids pick on other kids, and try to get everybody else to laugh at it and go along for the ride.

Except this wasn’t a junior high school student making an attempt at popularity with the cool kids—she was a reserve police officer. And while she thought she was picking on the nerds, she was actually picking on the “cool kids” in her attempt to boost her own popularity. The fact is, interest in bicycling has been growing by leaps and bounds for many years now, among everybody from hip urban trendsetters, to working people trying to save a dollar, to families bonding over a common activity, to aging baby boomers looking for exercise, and everybody in between—and it is only getting more popular with each passing year.

But picking the wrong target for her juvenile spite was only the tip of the iceberg. From the perspective of people who just want to ride their bikes, whether for exercise, or to economize, or to reduce their environmental impact, or just for the fun of it all, here was an officer of the law expressing her hatred of cyclists for no reason other than their presence on the road. And let’s be clear—when she repeatedly mentioned running over bicyclists, and ended her video with a statement saying “Like you’ve never thought about it” appearing over a graphic photo of an infamous collision in Mexico, in which a drunk American motorist plowed into a group of cyclists, killing one and injuring several more, her expressed hatred was seen as bordering on an incitement to violence.

And let’s be clear about something else, too. Every cyclist she passed in her video was riding lawfully, and courteously. There were no “scofflaw cyclists” in her video, just ordinary people minding their business, lawfully riding their bikes and courteously sharing the road. There was absolutely no rationale for a reserve police officer to be riding around expressing her desire to run them over. Even if she was on her own time.

That’s not all. When the controversy broke, a message on the Santa Paula Police Department’s Facebook page expressed support for the video, and encouraged cyclists to obey the law. Clearly, whoever wrote that message—another reserve officer, it turned out—was completely out of touch with what was happening on the street. And unfortunately for Chief McLean, he got the initial blame for supporting the video.

But Chief McLean is nobody’s fool. He took immediate, decisive action, placing both reserve officers on administrative leave. And before the weekend was over, Laura Weintraub, the officer who had made the video, had resigned from the Police Department. It’s obvious that these two reserve officers created an enormous public relations problem that he didn’t ask for or want, and the Chief should not be singled out for blame in this incident. In fact, Chief McLean deserves full credit for swiftly dealing with a problem in his Department.

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