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Road Rights- The Dutch Law

By Bob Mionske

“Cager.”

It’s a derogatory word for “driver” that’s sometimes used by motorcyclists and bicyclists—it refers to the steel cage of the automobile that surrounds and protects motorists from the consequences of their own errors. If you’re surrounded by a protective steel cage, your safety is less dependent upon being a careful driver. And if you hit another motorist, he or she has a steel cage, too. The drivers tell their insurance companies their version of what happened, and the insurance companies sort out the rest, deciding between themselves who owes what for the fender bender.

But when the collision is between a driver and a cyclist, things are different. The cyclist isn’t shielded by a steel cage—and the cyclist is also not protected by the law. In contrast, the law does protect the driver, and more importantly, the driver’s insurance company, from the consequences of careless driving.

Under American law, if you are hit by a car while riding your bike, you have to prove that the driver was negligent, and that you were injured as a result. If you and the driver both say that the driver negligently injured you, that pretty much settles who’s at fault. But if the driver tells his insurance company that you were at fault, or if you were injured and can’t remember what happened, it’s going to be an uphill battle for you. If the insurance company thinks there’s any chance they can beat you, they will deny your claim and fight you every step of the way.

The truth about what really happened on the road does not matter. You have the burden of proof, and all the insurance company has to do to win is create enough doubt about your case. It’s your word against the driver’s word; your expert’s opinion against their expert’s opinion. Throw in some social prejudice against cyclists—as well as against “frivolous” lawsuits—and you may get a jury that sees things the driver’s way. The insurance company has a lot of money to fight you, and they will not hesitate to spend whatever it takes in time and money to beat you.

The Dutch have a different approach. Instead of shielding drivers and their insurance companies from the consequences of careless driving, Dutch law shields cyclists. If a cyclist is involved in a collision with a driver, the cyclist does not have to prove that the driver was negligent. Dutch law begins with the assumption that the driver is at fault. If the cyclist was the person at fault, the Dutch driver must prove that with evidence. Under Dutch law, the burden of proof has been shifted from the injured cyclist to the driver—which is exactly as it should be.

Why? The driver is physically protected by a steel cage, and the cyclist is not. Also, when the driver is legally shielded from the consequences of careless driving, there is little incentive to be careful while operating a motor vehicle. The result: 630 cyclists were killed on American roads in 2009 alone, and more than 50,000 were injured. As the Dutch have discovered, when the law requires the driver to prove that the cyclist was at fault, drivers become more careful. A lot more careful. And that is a law we can all live with.

Research and assistance by Rick Bernardi, J.D.

 

This article, The Dutch Law, was originally published on Bicycling on March 5, 2012.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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