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01/18/2012 - Are You A Cyclist? Know Your Rights!

Law of the Street (Things You Should Know To Avoid Trouble When Riding Your Bike)

by Brad Houston (BradHoustonLaw.com)
As presented to CyclingTexas.org, May 20, 2011

PART OF WHAT YOU NEED TO KNOW: 
This article is an overview of some of the issues related to cycling on the streets and roadways of Texas. It is not intended as legal advice on which you should rely. Rather, this article is to inform you of some of the issues to keep in mind. 

The U.S.A is very different from Europe. Cultural norms often determine the acceptance of different modes of travel. For instance, in Europe, bicycles are part of the culture and are highly respected by most motorists. In contrast, in the United States and in particular in Texas, generally the culture does not consider bicycling as an accepted mode of transportation. Thus, in Texas, hostility is often encountered by cyclists when sharing the road with cars, SUV’s and Trucks. 

TEXAS RULES OF THE ROAD: 
Those who know the rules have a better chance of winning in the end. 
Cyclists must follow the same rules as motor vehicles. Just like motor vehicles, bicycles are regulated primarily by state laws, most of which are found in the Texas Transportation Code. Section 551.101(a) provides, “A person operating a bicycle has the rights and duties applicable to a driver operating a vehicle under this subtitle, unless: a provision of this chapter alters a right or duty; or a right or duty applicable to a driver operating a vehicle cannot by its nature apply to a person operating a bicycle.” (Emphasis added.) 
 
Bicycle Exceptions. Thus, a bicycle has the same right to operate on roadways as a motor vehicle, except for a few exceptions. 

For instance, section 551.103 requires that a person operating a bicycle on a roadway, who is moving slower than other traffic, shall ride as near as practicable to the right curb or of the roadway, unless:
(1) passing another vehicle, 
(2) preparing to turn left, 
(3) a condition on the roadway, including a fixed or moving object, parked or moving vehicle, pedestrian, animal or surface hazard prevents the person from safely riding near the right curb or edge of the roadway, or 
(4) the cyclist is in an outside lane that is (a) less than fourteen (14’) in width and does not have a designated bike lane or (b) the lane is too narrow for a bicycle and motor vehicle to safely travel side by side. 
 
A cyclist on a one-way roadway with two or more marked lanes may ride as near as practicable to the left curb or edge of the roadway. (Note: Practicable does not mean possible. Rather, it means feasible, workable, or useable.) 

Also, Section 551.103(c) provides that cyclists may ride two abreast, but only in a single lane and so long as they do not “impede the normal and reasonable flow of traffic on the roadway”. Persons may ride more than two abreast, but only if they are on a part of the roadway set aside for the exclusive operation of a bicycle (a wide bike lane). 

Safety Equipment. Section 551.104(b) states that a cyclist riding at night time must be equipped with (1) a lamp in front that emits a white light visible from a distance of at least 500’ and (2) a red reflector on the rear of the bike that is visible to a motor vehicle with headlamps on from all distances from 50’ to 300’. 
Subpart c allows the use of a red lamp on the rear visible from a distance of 500’. 

Miscellaneous
Competitive Racing.  
Section 551.105 provides that a sponsoring organization may hold a competitive bike race on a public road only with the approval of the appropriate law enforcement agencies which, may agree with the sponsoring organization to safety regulations governing the moving of bicycles during a competitive race or during training or a competitive race, including permission for the cyclists to ride more than two abreast. 

Tuesday Nighter in Austin, TX? Alleycat races in various cities and towns in Texas? 

MOTOR VEHICLE/BICYCLE ACCIDENTS: Don’t get in one. 
Motor/Vehicle Accidents. 
Sometimes, accidents happen. When they do, there are two significant issues that should be kept in
mind (1) your health and (2) your legal rights. 

Your health. 
The following comments are generalities, and should not be relied upon as medical advice. 
Don’t move! If you are struck by a vehicle or otherwise involved in an accident, one of your first concerns is oncoming traffic. You need to get out of the road, but if you are seriously injured, you should not try to move or allow anyone to move you. Rather, you should first notify someone to warn approaching traffic. Next, do a physical inventory. Where is your pain coming from? Can you feel your hands and fingers” Can you feel your feet and toes? If you have lost the feeling or have numbness in any of your extremities, you should instruct anyone trying to render aid to not move you until trained personnel are present. Do you have a headache and did you lose consciousness? The answers to these questions and others will better enable you and the EMT’s to determine if you have suffered serious injuries. 

Please stop traffic! 
On the other hand, regardless of your injuries from the initial impact, if you get run over by a passing vehicle, that could be fatal. Therefore, if someone tries to render aid to you and you sense that you have severe injuries, instruct them to: stop any oncoming traffic, call 911, and to give you time to assess your physical condition. When in doubt, it is always better to keep your spine immobilized. 

Ambulance Support? 
When in doubt, it is always better to accept ambulance transport. This is true  especially if you have suffered a head injury, have a concussion, and/or if you have injured your neck,
back or otherwise injured your spine. 

Head injuries. 
You should be particularly careful with head injuries. A person can suffer a concussion and have bleeding on the brain and/or swelling, which in the first few hours after the impact is not completely evident. However, catastrophic results can occur even hours after an accident if not properly diagnosed and treated.Remember the tragic death of actress Natasha Richardson on March 18th, 2009 from a skiing accident. She was up walking around an hour after the fall and was only complaining of a headache. If you hit your head, take the ambulance. 

Spinal injuries.
Spinal injuries can include both soft tissue and bone damage. One of many risks is if you have a partial fracture in one of your vertebra and later on, if subjected to inadvertent movement, it could cause a
complete fracture and you could suffer spinal cord or nerve damage. This is one reason why it is important to immobilize the neck and back after trauma and get to an emergency room for further evaluation as soon as possible. 

Law Enforcement. 
Regardless of who is at fault, it is almost always better for a cyclist if a law enforcement agency investigates an accident. Law enforcement agencies have two obligations with regard to
traffic accidents. 

Duty to investigate an accident. 
Section 550.041 states that, "A peace officer who is notified of a motor vehicle accident resulting in injury to or death of a person or property damage to an apparent extent of at least $50.00 may investigate the accident and file justifiable charges relating to the accident without regard to whether the accident occurred on property to which this chapter applies." (Emphasis added). 

Thus, a peace officer has discretion of whether to investigate an accident. 

Duty to write a report. 
In contrast, although a peace officer has discretion on whether to investigate an accident, section 550.062 states that if a “law enforcement officer investigates a motor vehicle accident, they shall make a written report of the accident if the accident resulted in injury or death of a person or damage to property of any one person to the apparent extent of $500.00 or more.” (Emphasis added). 

Thus, the Transportation Code does not require an officer to investigate an accident. In addition, the report of an accident investigation must be filed with the department not later than the tenth (10) day after the date of the accident. Texas Transportation Code Section 550.062(b). 

Cyclist Duties to Give Information and Report and Accident. 
The operator of any type of vehicle, motor vehicle or bicycle, must do the following after an accident. 

Duty to immediately Give Notice of the Accident. 
Section 550.026(a) requires the operator of a “vehicle” involved in an accident resulting in injury to or death of a person or damage to a vehicle to the extent that cannot be normally and safely driven shall immediately by the quickest means of communication give notice of the accident to the local police department, sheriff’s department, or Department of Public Safety, depending on where the accident occurs. 

Duty to Give information and Render Aid. 
Section 550.023 requires the vehicle (motor vehicle or bicycle) involved in an accident resulting in injury or death of a person or damage to a vehicle that is driven or attended by a person shall (1) give the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operators motor vehicle liability insurer to any person injured or the operator or occupant of a person attending a vehicle involved in a collision; (2) if requested and available, show the operator’s driver’s license to a person described by subdivision (1); and (3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent the treatment is necessary, or if the injured person requests transportation. 

Conduct your Own Investigation. 
Get as much information as possible. Get your friends and family  members who may be at the accident scene to help if necessary. Use a phone camera to photograph the vehicles involved, the license plate, the driver, the driver’s license, the positions of the vehicle and your bike after impact if not moved. Get the witnesses names and phone numbers. Sometimes, peace officers will fail to get critical witness information. 

ROAD RAGE: 
In a perfect world, every ride would consist of gently rolling hills, continuous tail winds, and no traffic. Cyclists can adapt to the topography and weather conditions, but traffic is a different story. Sometimes bad things happen. Like anything in life, it is always best to have a plan before the unexpected occurs. As most cyclists know, there are many levels of harassment. 

Degrees of Harassment. 
Cyclist are well aware of the degrees of harassment to which cyclists are  subjected. The harassment runs from driving past the cyclist at an unsafe distance to actually striking the cyclist. 

Criminal and Civil Liability. 
Conduct by drivers can result in civil and/or criminal liability. The main component to determine the type of liability is the mental state of the actor, or in legal jargon, “mens rea”. When an actor merely makes a mistake or is just “plain stupid”, their conduct typically only results in civil liability under a “negligence” standard. 

Recklessness. 
When a driver’s conduct is beyond carelessness or mere stupidity, it may rise to the level of recklessness. Like negligence, the Texas Penal laws define “recklessness” differently than the civil laws. Compare section 6.03(c) of the Texas Penal Code to section 41.001(11) of the Texas Civil Practice and Remedies Code. 

CRIMINAL PROSECUTION: 
As mentioned above, there are different levels of mental state required both in the civil and criminal context. You may be surprised to learn that law enforcement agencies, such as the Austin Police Department, will not investigate every crime, even if they suspect there is probable cause that one was committed. The reason is, in a city the size of Austin (or Dallas, Houston, or San Antonio), there are hundreds and sometimes thousands of crimes committed every day. Some of those crimes, listed from the least to most severe, are listed below. 

Assault with Injury. 
Section 22.01(a)(1) of the Texas Penal Code.The person commits assault if the person “intentionally, knowingly, or recklessly” causes bodily injury to another. Section 1.07(8) defines “bodily Injury” as physical pain, illness, or any impairment of physical condition. 

Assault by Threat. 
Section 22.01(a)(2) also defines assault where a person intentionally or knowingly “threatens another with eminent bodily injury”. For example, driving a motor vehicle dangerously close to a cyclist. 

Aggravated Assault. 
Section 22.02 provides that a person commits “aggravated assault” if the person commits assault and (1) causes serious bodily injury to another, (2) uses or exhibits a deadly weapon during the commission of the assault. 

A motor vehicle can be used a “deadly weapon” pursuant to section 1.07(a)(17), which section defines it as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Texas case law has interpreted that code section to include an automobile operated in a manner as described in that subsection. Parish v. State, 647 S.W. 2d 8  (Tex.Crim.App. - Houston [14th dist.], 1982). 

Criminal Punishment. 
The punishment for the assault offenses described above ranges from a  misdemeanor to a felony. See the cited code sections for the stated levels. 

Violation of Safe Passing Ordinance. 
CIVIL ASSAULT:
The elements for “civil” assault mirror those for “criminal” assault. Johnson v. Davis, 178 S.W. 3rd 230, 240 (Tex.App. - Houston [14th dist.] 2005, pet. denied). A person commits an assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another; intentionally or knowingly threatens another with imminent bodily injury; or intentionally or knowingly causes physical contact when the person knows or should reasonably believe that the other will regard the contact as offensive or proactive." Section 22.01 of the Texas Penal Code. 
 
Typical Bike Situation. 
Thus, if a driver of a motor vehicle intentionally or knowingly drives dangerously close to one or more cyclists, they can be liable for civil assault. See Macias v. Tex. Dept. Crim. Just. Parole Div., __S.W. 3rd__, (Tex.Civ.App.- Austin 2007, TXCA3 03-07-00033-082107). 

To Prove a cause of action for assault by threat of bodily injury, the cyclist must proof the following elements: The driver acted intentionally or knowingly; the driver threatened the cyclist with eminent bodily injury; and the driver’s threat caused injury to the cyclist. Johnson v. Johnson, 869 S.W. 2nd 490, 491 (Tex.App. - Eastland 1993, writ denied). 

Injury. 
The cyclist must prove that he or she was apprehensive; the cyclist is not required to prove that he or she was in fear or that he or she was actually injured. Mason v. State, 472 S.W. 2nd 787, 788 (Tex.Crim.App. 1971). 

Practical Pointer. 
The cyclist must prepare in advance how he or she is going to react when threatened by a motorist. If you do so, you are more likely to react in the appropriate way. 

Shoot the bird! 
Flipping a driver off will more likely incite the driver to retaliate. This is not only foolish, but can be dangerous. Are you feeling lucky? If a driver threatens you as they drive their vehicle past you and you are able to incite them to pull over, you had better hope that they haven’t reloaded their gun that they keep under their seat after the last time they shot at an angry cyclist. If you are not lucky, you may end up being the victim of a murder, not an assault. 

More practical tips. 
If you are threatened and/or otherwise assaulted by a motorist, the following steps are probably your best course of action: Memorize the license plate. If you or one of your fellow riders can memorize the license plate as the vehicle goes by, that will be worth more to you in the long run than almost anything else you can do. Remember the color, and a description of the vehicle, make model, and color, and a description of the driver and any passengers, i.e. gender, hair length, race, tattoos, or other identifying features, it will be very beneficial to you later. 

Also, if the driver gets stuck at a red light, use the camera on your phone to take a photo of the license plate, vehicle and/or driver. 

Do not Fight! Do not fight! 
Even if you win, you will likely get charged with a criminal offense, even if the motorist started it. That is just the way the world works. I have seen it happen many times. It just isn’t worth the risk. 

In reality, it is probably not worth filing a civil lawsuit against anyone if they merely buzz you. However, if they drive by blaring their horn and come within inches of you or one of your fellow cyclists, it may be worth taking legal action.

In the alternative, for a small fee, you may get a lawyer to write a letter to the offending driver demanding that they make a donation to charity in exchange for your agreement to drop your civil against them.

HELP CREATE THE ENVIRONMENT WE WANT: 
Every time you get on your bike and get into traffic, you should do so with the idea that you are a goodwill ambassador for cycling. Blowing through stop signs and red lights only fuels the negative opinion of motorist against cyclist. Even if the driver is in the wrong, if you flip them off after they drive  dangerously close by, you are only making the situation and the general relationship between motorist and cyclist worse. Please do your part to make the United States of America a friendlier place to ride a bike.

Austin Safe Passing Ordinance. 
On October 22, 2009, the City of Austin City Council passed a new section to the City Code, section 12-1-35. This section is otherwise known as the Safe Passing Ordinance. It became effective November 2, 2009. 

A “vulnerable road user” means, among other people, an operator of a bicycle. Section 12-1 35 (b), provides, "an operator of a motor vehicle passing a vulnerable road user operating on a highway or street shall: vacate the lane in which the vulnerable road user is located if the highway has two or more marked lanes running in the same direction; or pass the vulnerable road user at a safe distance. (Safe distance is defined as at least 3’ for a car or light truck or 6’ for a truck, other than a light truck or commercial motor vehicle."

The ordinance also provides that, "An operator of a motor vehicle may not overtake a vulnerable road user traveling in the same direction and subsequently make a righthand turn in front of the vulnerable road user unless the operator is safely clear of the vulnerable road user, taking into account the speed at which the vulnerable road user is traveling and the braking equipment of the motor vehicle making the right-hand turn."

The ordinance also prohibits an operator of a motor vehicle from driving in such a way that it is intended to cause intimidation or harassment or threatens the road user. 

The ordinance further provides, “It is an affirmative defense to prosecution under this section that at time of the offense the vulnerable road user was acting in violation of the law.” [If you want protection from the law, you have to follow the law.] 

AUTO INSURANCE:
Benefits provided under a standard policy will also cover a cyclist involved in a motor vehicle collision. For instance, uninsured and under-insured motorist coverage will benefit a cyclist if they are hit by a motor vehicle that is uninsured or under-insured. 

Personal Injury Protection or PIP will also cover a cyclist who is involved in a motor vehicle accident. The minimum limit for PIP is $2,500.00.

Uninsured/Under-insured motorist coverage and PIP coverage are extremely cost effective for the protection that you get. A cyclist would be well served to go to a lower level cable TV package to save money to have uninsured/under-insured motorist and PIP coverage. 

Brad Houston has been practicing law for over twenty years. He is licensed in California and in Texas. Mr. Houston started his practice in 1990 at Gray, Ames, & Frye (now DLA Piper) in it’s San Diego office, where his practice included personal injury defense for companies, such as Delta Airlines and General Dynamics.

When Mr. Houston returned to his home State of Texas, he went to work for the Travis County District Attorney’s office where he tried twenty-two (22) jury trials in twenty-four (24) months.

Mr. Houston next worked for the Travis County Attorney’s Office where he served as a plaintiff’s personal injury subrogation lawyer for Travis County. It was there that he cut his teeth on the plaintiff’s side of
the docket. 

In 1996, Mr. Houston returned to private practice where he started his plaintiff’s personal injury practice. For several years, Mr. Houston has experienced great success and enormous satisfaction by directly representing cyclists and other individuals against insurance companies, trucking companies, and state and local government agencies. Mr. Houston represents his clients on a contingent fee basis and gives
free initial consultations. 

In addition to other volunteer work and commitments to various charitable organizations, Mr. Houston underwrites the Gruppo VOP training association and proudly sponsors the University of Texas Cycling Team, the Austin Flyers, the Austin Nationals, and Violet Crown Sports Association. 

He is also a proud sponsor of the Thursday Night Driveway Series Crits in Austin, Texas. Mr Houston is a member of the Violet Crown Sports Association. He holds a racing license from USA Cycling.

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