OTLA Trial Lawyer Fall 2022

52 Trial Lawyer • Fall 2022 Chris Thomas By Chris Thomas OTLA Guardian As lawyers who frequently represent injured bicyclists, we have heard some creative efforts to tap into antibicyclist bias. Generally, these efforts fall within a handful of categories: • Bicyclists are less visible and more vulnerable than other road users, and therefore are subject to a higher standard of care. • Bicyclists overwhelmingly behave like wild animals, darting through city streets unpredictably and without regard for traffic laws. • Bicyclists who fail to wear helmets or bright, reflective clothing must not care about their personal safety. • Bicyclists are physically fit and resume physical activity quickly, and therefore must not have been seriously injured. Efforts to defend bicycle cases using these approaches can be found in discussions with insurance adjusters, at depositions and at trial. Higher standard of care? In a recent deposition, a defense lawyer asked my bicyclist client about the potential hazards he pays attention to while riding. My client recited a long list of items: drivers turning across the bike lane without looking, pedestrians walking into the bike lane mid-block, car doors opening suddenly into the bike lane and so on. Indeed, experienced bicyclists often have learned to watch for, and anticipate, hazards around them before they happen. In other words, bicyclists often ride hyper-defensively. One of the most common collisions we see is called a “right hook,” where a driver turns right across a bike lane without yielding the right of way to a bicyclist. Of course, ORS 811.050, failure to yield to rider in bike lane, clearly gives the bicyclist the right of way, but studies have shown that more than half of drivers do not look for bicyclists in bike lanes before turning across them. This collision type is so common, my brother and uncle have both been right hooked within a few blocks of each other, and I have personally been right hooked in the same place as one of my former clients. Given the prevalence of this hazard, and the vulnerability of bicyclists, an enterprising defense lawyer may argue that bicyclists have a duty to anticipate and avoid the right hook: Defense lawyer: You saw my client’s vehicle slow down before the intersection, correct? Client: Yes. DL: And you saw them engage their turn signal, right? Client: Yes. DL: So you understood my client planned to turn right across the bike lane? Client: Yes. DL: But despite that knowledge, you continued riding at full speed toward the intersection in the bike lane, right? Client: Yes. Fortunately, this defense lawyer’s point does not hold up under Oregon law, summarized in Uniform Civil Jury Instruction 20.06, right to assume law obeyed, which states: Every person has a right to assume that others will obey the law, unless and until that person knows or in the exercise of reasonable care should know otherwise. Here, the driver’s slowing and use of ANTI-BICYCLIST BIAS

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