Tuesday, March 2, 2010

The Unseeing Eyes Of Motorists

Motorist need to get something straight: I didn't see Mr. or Ms. bicyclist, is not a defense. It is an indictment. This week we will file a lawsuit against a motorist that struck a bicyclist on West Montrose Avenue, near Homer Park, in Chicago in October, 2009. I am anticipating a justification I've heard before, the old "unseeing eye" defense. It is often raised in intersection cases and it goes little something like this: The motorist asserts that he or she entered the intersection while carefully looking in all directions before beginning to turn. No bicyclists were seen. As the motorist executes his or her turn, however, the bicyclist materialized, seemingly out of nowhere. The defense asserts that the collision itself notwithstanding, the motorist was careful, not negligent and, therefore, should not be held responsible for the bicyclist's injuries. This was just one of those things. . .

In our client's case, he was approaching a T-intersection created by Montrose and a driveway at Homer Park when he was struck by a motorist turning left into the park from the opposite side of Montrose. Section 9-16-020(e) of Chicago's municipal code gives the bicyclist the right-of-way over a left turning vehicle coming from the opposite direction. Yet, the putative defendant has been incredulous at the notion that she is responsible. She apparently told a witness at the scene that she never saw our client. She stated to the bicyclist in a subsequent voice mail message, "I'm sorry, but I don't believe I'm at fault... Best advice I can give you is 'be more careful'." Evidently, she is of the opinion that since she never saw our client on his bicycle -- she looked but did not see -- she should not be held responsible for the damage she caused. Nonsense.

Long ago, Illinois courts recognized the impotence of claiming to have looked but not seen. In 1965, the Appellate Court of Illinois, Second District, stated,
"It is well settled that one may not look with an unseeing eye and be absolved of the charge of negligence by asserting that he maintained a continuous lookout, yet failed to see that which he clearly should have seen."
Payne v. Kingsley, 59 Ill.App.2d 245 (2nd Dist. 1965)

Often in my experience the reason offered by the motorist for having not seen the bicyclist is no justification. Traffic was blocking my vision. The sun was in my eyes. My van's support beam obscured my vision. Lame, and of no legal consequence. Folks, when you are operating a motor vehicle you must be able to see where you are going. You must be able to visualize all potential areas from which bikes, cars, pedestrians, motorcycles, etc. may emerge. If you cannot, then you may not proceed.

8 comments:

  1. "I didn't see you".

    Answer: "Last I checked the DMV requires a vision test. Since you clearly fail, please turn in your license".

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  2. Oops, Montrose. Thanks for noting that, Paul.

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  3. It's curious that this incident will actually require a lawsuit, unless it's also an issue of an uninsured driver. Or, does the defense have some better argument up its sleeve?

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  4. This post is very intriguing, it stirs my curiosity. People are fond of traveling from place to place. Its our nature as human beings.

    But car safety should our main concern for us to enjoy more.


    Auto Insurance Policies

    ReplyDelete
  5. The voice mail alone would make me sue her. It is one thing for her to think she is not at fault or innocent because she had no intent. It is quite another for her to say: "Best advice I can give you is be more careful."

    If this was me, I would literally want to kill her. Of course I would not do that, but I would go to the end of the earth for justice.

    Of course I always worry about juries who likely see life from behind a windshield and/or view cyclists as nuisances.

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  6. It's a problem, and stricter laws would encourage the development of solutions, but so too will better understanding of the problem, which is a problem of (literally) perception.

    Vision is far more "trained" than people realize.
    The classic example of this is when you buy a car and suddenly you're spotting that make/model everywhere. The cars were there already, but now your vision is trained to spot them.

    Drivers spend countless hours in the driver's seat, training to recognize shapes and motion, primarily of cars, secondarily of pedestrians.

    Motorcycles and cyclists both have two problems in common - they move faster than pedestrians and they are not shaped like cars.

    Motorcycles typically accelerate faster than cars, which not only trips up the driver's anticipation but also makes them literally harder to see.

    Cyclists are effectively pedestrians, but they move far faster than pedestrians. Drivers need to _learn_ to see them, and cyclists need to be aware of what's going on with the drivers' perception and anticipate.

    This is particularly important (and hard) when the cyclist is distracted with a physical challenge either of the moment or at the end of a long ride.

    None of the above should be interpreted as blaming the cyclist; nothing excuses harm. But progress depends on figuring out the problem.

    ReplyDelete

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