Crash Advice from The Cyclist Lawyer

December 18, 2018

In any collision between a bike and a car, the cyclist will almost always come out worse off. We talk to Megan Hottman, The Cyclist Lawyer and Cycliq Ambassador about what to do if involved in an incident with a car when out on your bike. Megan is passionate about promoting bicycle safety and has represented over 120 cyclists in their individual cases through her law firm Hottman Law Office. She is the go-to expert in cycling law in her home state of Colorado and is renowned for her infectious enthusiasm for all things bike related. Wrapping up her 16th season of competitive cycling, Megan also hosts educational legal seminars on bike law for all riders, rookies to veterans.

Megan has been riding with her Cycliq bike cameras for years and refuses to ride without her Fly6 and Fly12. “You just never know what might happen on a ride and that’s why it is best to have a camera documenting the journey,” she says. Read on for Megan’s advice and tips, including example cases, for cyclists in the event of a collision with a motorist.
Megan Hottman Cycliq Ambassador

Megan Hottman, The Cyclist Lawyer and Cycliq #TeamFly Ambassador

Before any ride

You can never tell when a crash or near miss may occur, so it’s best to always be prepared. Don’t forget to take your mobile phone (with charge) and ID in your jersey pockets. Turning on your GPS/location tracking can be helpful later if you need to ascertain the collision location and time.

Increasing your visibility will reduce the likelihood of a crash due to ‘SMIDSY’ (“Sorry mate, I didn’t see you”). Do this by riding in groups, use of daylight running lights and bright kit – plus bright kit is fun to wear.

Some safety conscious folk even wear a wristband or dog tag or even add a sticker to their bike with their blood type and contact details.

Then, most importantly, 1/8 turn your bike cameras to their mount and your kit is complete. “In an era of motorists fleeing the scene, or refusing to take responsibility for what happened, the footage is the proof…. The video footage does not lie. Invariably, the worst and closest calls happen on the days you accidentally left your camera home. That’s why it’s essential to ALWAYS carry it!” says Megan.

Your safety is paramount

When an incident occurs, first and foremost look out for your safety and the safety of any other riders on the road. Unless there’s a real threat of danger, don’t move from the point of impact.

Call emergency services immediately and ask for both police and ambulance. Adrenaline is a powerful drug and post-impact it may mask some of the magnitude of injury so it’s best to get checked out fully by a paramedic or doctor.

If you witness another person in a collision, gently support their head and neck while waiting for help but only if you are confident in doing so. Do not remove their helmet if they are wearing one. Try to keep them calm during the wait to prevent worsening injuries.

File a police report

Before help arrives, do not say anything to the driver that could negatively impact your case. “Making any comments to the driver at the scene can only backfire on the cyclist and will not serve any benefit.  It is best to keep quiet, focus on getting medical care and working with law enforcement at the scene,” says Megan.

Once help arrives, if you’re able to, have the police take down your statement and double check the information with the police for factual accuracy (you cannot assume that the officer will automatically see from your point of view). Get hold of the officer’s card, or name and ID number for future reference.

If you see any bystanders who are willing to help, ask them to give their statement to the police, or if in a hurry have them write it down, sign and date and provide contact details. Witness statements can be a huge help in determining the cause of a crash in any he-said-she-said situations; at the very least attempt to get their name and contact details so that they can be contacted by you or the police in the future.

Case A

On June 9, 2015, Brandon was out for a bike ride. Having recently moved to Colorado, this was one of his first few rides in the Littleton area. It was just before 6pm, and he was on his way back home. 

Without warning, Brandon was hit from behind by a motorist, and thrown off his bike into the street. His head, face, hands and knees were bleeding badly. Despite his obvious injuries, the motorist fled the scene. 

Luckily, a passerby witnessed the event and caught the license plate number of the fleeing motorist. Police were called and located the driver in her home about an hour after the collision. 

The driver was cited with numerous violations. During the pendency of her criminal case, we learned that her versions of what happened varied drastically; from, “I thought I hit a pothole,” to “A cyclist darted in front of my car,” to “The Arby’s fell off my passenger seat onto the floor and I reached down to pick it up.”

Read more at Hottman Law Office

In Brandon’s case, there could have been no consequences for the motorist in the absence of witnesses. It’s cases like this, where other road users violate road rules and cause injury, your bike cameras could change the course of your future. “You can clearly read license plates, company names on doors of vehicles, and see the driver’s face- which is critical for law enforcement to take action!” says Megan.

Check out this recent case where use of bike cameras resulted in a positive ending by facilitating an education program for fire truck drivers, following a close pass with a cyclist.

If you don’t ride with bike cameras, try to commit everything to memory as best you can. If you’re able to take a picture of the scene, the car, the driver and your bike on your mobile phone, do so.

Do everything you can to ensure that the other party stays on the scene so you can exchange insurance and contact details and also so the driver can tell their side of the story to police.

Keep all evidence

Use your bike cameras to capture as much as possible after the incident, as once insurance companies or lawyers get involved, the party responsible may attempt to change their tune.

Case B

On April 4, 2013, D.K. was out riding his bike…at a road perpendicular to the one D.K was on, a man sat in his pickup truck, stopped at a stop sign. D.K., a very experienced cyclist, and law enforcement official as well, glanced at the truck, noted it was stopped, and continued riding. 

Suddenly and without warning, the truck left the stop sign, and t-boned D.K., striking him on his side, causing him to land on the ground. 

Immediately, the driver apologized, said he did not see D.K., and that he was at fault for leaving the stop sign and hitting D.K. with his truck. In fact, the driver, Mr. H., was kind enough to load up D.K.’s bike (damaged and not capable of riding) into his truck bed, and he gave D.K. a ride home. The driver was so remorseful and felt terribly. 

Now, D.K. believed, as many people do, that the driver’s insurance company, State Farm, would be reasonable and would work with him on the resolution of his claims.

Incredibly, defense counsel seemed to argue with his own client/insured, as he insisted that, “well, shouldn’t the cyclist have made eye contact with you? Don’t you think he was foolish for assuming you’d seen him? Don’t you think cyclists have a duty to be careful, too?” To which, the driver repeatedly insisted that he was the sole cause of the collision. 

Read more at Hottman Law Office

In D.K.’s case, he was lucky because the motorist was honest and continued to reiterate that he was at fault, despite the immense pressure from his insurance company to assign blame to D.K. This is not always the case and there have been plenty of times where a sincere, apologetic motorist sings a different tune once they lawyer up.

HD video and audio recording of the incident can help with:

  • Showing the situation as it happened, eliminating conflicting accounts and assigning responsibility;
  • Recording licence plates or the make and model of the vehicle;
  • Ultimately catalysing a shift in behaviour of all road users toward taking greater personal accountability.

The Cycliq Fly bike cameras come equipped with Incident Protection, a feature where if the device is tilted more than 30 degrees either side for more than 5 seconds, the camera locks the footage of the incident (overriding the looping function) for review later. Find out more about Incident Protection mode here.

If you’ve caught footage on your Fly camera that you want to keep, you can also choose to lock the current and previous footage segment by holding down the Q button on your Fly12 CE (not available on the Fly6 CE).

Focus on your recovery

Once you have provided your video, notes, witness contact details to the police and to your insurer, lay low – both physically and online.

If you’ve sustained injuries, don’t try to tough it out and hop back on the bike or return to work. Take some time to heal and recover. Avoid sharing information on your social media channels (or any public forum) as “anything posted online in any social media context can become evidence in the case.  And it cannot be taken down,” says Megan. Check out this blog post for more information on the effect of posting about your case to social media.

Tip: if your collision ride is on STRAVA, change the ride settings to private in case it is needed as evidence. Instructions to do this can be found at this STRAVA Support article.

At all costs, do not speak to the motorists’ insurance company during this time. “They’d love to get your statement while you’re high on pain meds. They’d love for you to say ‘I’m fine.’”

Use this time to work out whether you want to engage with a lawyer, as they will be more familiar with dealing with the insurance companies and filing paperwork correctly. Many, like Megan, offer free initial consultation to help you determine the next steps.

Read more: Handling My Own Claim – Lessons Learned.

Further resources

A collision with a motorist can occur at any time or place, so the best advice from Megan is to be as best prepared as you can should the unthinkable occur.

If you’ve been involved in a crash, you are not alone. There are many resources to provide assistance, so don’t be too proud to reach out for support. For more information from Megan, check out the Hottman Law Office blog.

For close calls, you can log it at closecalldatabase.com or cyclistvideoevidence.com.

Australian Cyclists

Bicycle Network Australia provides comprehensive bike safety information, insurance and legal support as part of their memberships and recommend partners Maurice Blackburn Lawyers to help deal with any legal issues.

Cycling Australia provides various levels of cover and provision of legal advice through Shine Lawyers in most states.

UK Cyclists

LITEM offers free legal advice based from an open triage system, including evaluation of a payout and templates to be used when dealing with third parties.

British Cycling and Cycling UK members also have access to an incident helpline designed to offer legal and insurance assistance powered by lawyers Slater and Gordon.

US Cyclists

Most states have a number of specialist bicycle crash lawyers like Megan available to provide assistance where needed.

 

Disclaimer: the information on this blog post is not intended as legal advice, it is provided for information purposes only.