OTLA Trial Lawyer Fall 2022

53 Trial Lawyer • Fall 2022 a turn signal are indications they will turn, but not that they will turn before first yielding the right of way to the bicyclist approaching from behind. The first indication the driver is violating ORS 811.050 would be their actual movement turning into the bike lane, at which point the bicyclist could be legally required to slow or take other evasive action. UCJI 20.06 provides an important safeguard against defense arguments that seek to impose upon bicyclists a duty to ride hyper-defensively and can be applied to many other common causes of bicycle collisions, including failure of drivers to stop at stop signs, improper opening of car doors and so on. Bicyclists as wild animals One of our clients was hit by a driver who claimed that before the collision, he accelerated away from a threatening group of bicyclists. In the criminal case against the driver, the defense lawyer emphasized repeatedly in closing arguments that his client sought refuge from a “gaggle of bicyclists,” a phrase he repeated several times. The argument was apparently effective, resulting in the driver’s acquittal. At trial, in one of our recent bike vs. car collision cases, the defense lawyer asked in jury selection, “How many of you have seen bicyclists in Portland doing something crazy?” He neglected to ask a comparable question about drivers, pedestrians or other road users. In both instances, the lawyers sought to portray bicyclists as something other than people who happened to be riding bikes. The label itself, “bicyclist,” is somewhat dehumanizing, suggesting a sort of bionic humanoid, a portrayal reinforced by some riders’ choice to wear bright spandex, aerodynamic helmets, and sunglasses that resemble bug eyes. When I was a teenager, on a family rafting trip on the Deschutes, my dad and I went to retrieve our car by hitchhiking. The notion of hitchhiking was unique to me as it involved creating a level of trust with a total stranger. As we stood waiting on the side of the road, my dad took off his sunglasses and told me to do the same, so the passing drivers could see our eyes. He explained that seeing a stranger’s eyes humanizes them and builds trust. That lesson has stuck with me throughout my life, including in my practice representing injured bicyclists. As simple as it sounds, part of my job is to portray my clients as multi-dimensional people who happen to enjoy riding bikes, not as bicyclists. They have families, jobs, friends, pets and other hobbies. Humanizing our clients to insurance adjusters and jurors makes it harder for them to lump our client in with those scofflaw bicyclists they see darting through town like wild animals. Helmets or bright clothing On the topic of bicycling, few topics stir up as much heated emotion as helmet use. Although not legally required for Oregonians age 16 or older, many view helmet use as compulsory for any bicyclist who cares about his or her own well-being. Lack of protective headgear is seen as an indication of recklessness. Others take a more nuanced view, acknowledging that helmet use should be encouraged, but that other factors are also important to safety, including infrastructure, route selection, lighting and rider experience. In the Netherlands, few riders wear helmets, yet their rate of head injury per bicycle mile travelled is far below the USA, where most riders wear helmets. Nevertheless, the potential for strong negative feelings exists in any case where a rider failed to wear a helmet, whether they sustained a head injury or not. Helmet use or non-use is likely to feature prominently throughout the medical treatment records, police, ambulance and fire reports. Fortunately for our helmetless bicycling clients, Oregon law prohibits evidence at trial of non-helmet use for any purpose that would reduce the plaintiff’s damages. ORS 814.489. The prohibition effectively excludes any evidence of lack of helmet and protects bicyclists from any associated stigma. Similar to helmet use, some people view bicyclists who fail to ride in high visibility clothing, or with bright lighting in daytime, as failing to adequately protect themselves. Oregon law does require that bicyclists make themselves visible when riding in the dark by using a front light and rear light or reflector. ORS 815.280. However, in the absence of darkness, or other low visibility conditions, no lighting or other visibility enhancement is required. Nevertheless, many bicyclists go above the statutory standard, dressing themselves like a highlighter crossed with a Christmas tree. Certainly, like helmet use, such precautions should not be discouraged, but a bicyclist cycling in daylight conditions in ordinary street clothes and without lighting should not be penalized. Oregon’s standard police traffic crash investigation form tends to reinforce the notion that bicyclists should wear bright clothing. It includes a checklist of “bicycle/pedestrian” factors contributing to a collision that include “Clothing not visible” and “No contrast with background,” suggesting that the involved rider wore a Harry Potter-style invisibility cloak. “I never saw the rider” is a common refrain in deposition testimony from drivers who collide with our bicyclist clients. When supported by the facts, we commonly emphasize our client’s use of daytime lighting, highly visible clothing and so on. However, in the absence of any enhanced visibility measures, we must be prepared to defend our clients’ right to ride in ordinary clothing. Recovering quickly People who participate in endurance sports, including bicycling, are someSee Anti-Bicyclist 54

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