Fundamental Change Is Needed To Reduce Driver, Biker Conflict

There is a lot of anger and hostility out there.  I am not referring to the political divisiveness of the nation - although the description applies - but to Illinois's roadways.  Drivers and bicyclists seem perpetually angry at each other, particularly when they meet on congested streets.  Bicyclists become hostile toward drivers for a perceived lack of empathy regarding the dangers faced while riding.  Drivers get steamed at the perceived arrogance and rule flouting by cyclists.  Both often feel that the other is just in the way.  Sadly, each too often view of the other not as a person, but rather as an impediment to their desire to get where they are going.  Why do we too often view our fellow travelers with such suspicion and distain?

The problem is the system, the infrastructure, that the driver and cyclist alike are trying to navigate.  They are each trying to make their way along the same space, yet by very different means and with different expectations.  The motor vehicle is heavy, mechanically powered and slow to maneuver through tight spaces.  The bicycle is light, human powered, quick and easier to maneuver through tight spaces.  In either instance, the operator hopes and expects to travel to their destination without unnecessary hindrance or obstruction.  Place the two in the same space and one or both are bound to have their hopes and expectations dashed, or, worse, see their bodies injured or their property damaged.

A dozen years ago, writer Charles Montgomery wrote an interesting and influential article in Momentum Magazine entitled, Bike Rage.  He wrote,

 “…the driving experience primes car drivers for meltdowns.

They are conditioned by popular culture to see cars as symbols of freedom, yet city driving is a slow-motion trap that subjects drivers to constant restrictions on their movement. Drivers are thwarted from enjoying the promise of motion by traffic lights, by congestion – and yes, by cyclists – and they suffer the natural but impossible desire to escape and move forward…”

He added,

 “…road rage is a symptom of the corrosive effect that modern commuting has on urban culture. Aggressive streets are not just dangerous, they change the way we feel and the way we treat each other, even when we’re not commuting.

… the problem is that city planners have mixed bikes and cars together in ways that offer little certainty about how each should operate, and lots of chances for conflict. Cyclists feel threatened in traffic, just like drivers. Many of us feel hard done by and under attack. I sure do. The average arterial road is an engine of conflict."

This second point resonates strongly with me.  My city, Chicago, has spent quite a lot of money and effort building bicycle lanes.  I use them regularly and I am glad they are there.  However, too many are poorly designed.  When city planners intentionally design streets so that public buses must enter bike lanes to pick up passengers, danger, fear and frustration for the biker and bus driver alike are the natural consequences.  When designated bike lanes on narrow streets are not protected from physical encroachment by motor vehicles with barriers, not just paint, anxiety and injury become too common.  When bicycle infrastructure suddenly ends leaving a confusing and treacherous set of options the bicyclist often feels as if their city does not care about their safety.  When municipal crews fail to survey road construction projects with an eye toward bicycle accommodation, the bicyclist and driver both end up seeing red. 

After years of incremental change to biking infrastructure in the United States there is still far too much regular conflict between drivers and bicyclists.  As a daily city biker and attorney whose practice focuses on representing bicyclists injured on the road, I am in a unique position to observe this phenomenon.  The conflicts between drivers and bicyclists are not going away.  The injuries and deaths continue.  Despite the Vision Zero campaign touted by the City of Chicago, 2020 has so far seen the death of eight bicyclists on our streets, an increase from the average yearly number of deaths between 2012 and 2016 of 5.8, according to Streetsblog.  This is entirely unnecessary.  The City of Chicago's own 2012 Bicycle Crash Analysis states, "with proper street design and behavior change amongst road users, the overwhelming majority of bicycle crashes are preventable."

It has become apparent that fundamental change regarding street design is necessary.   Bike lanes consisting simply of painted lines here and there are not acceptable.  Paint is not protection.  Paint on the street strikes me as a fingers-crossed type of approach to reducing the sometimes deadly conflicts between motor vehicles and bikes.  The era of just hoping that drivers and bicyclists work it out on the road must end, immediately.  2020 has been a year of  profound change.  In aspects of life big and little, many are awakening to the need to fix what has been broken for a long time.  Urban transportation design is one of those broken things.  What drivers and bicyclists need is space.  Specifically, we need bike lanes that are part of real networks that take us places we want or need to go.  Cities should stop designing bikes lanes that just end and instead create safe bike lanes that lead into other safe bike lanes.  We need bike lanes that offer real protection in the form of jersey barriers, planters and the like.  We need streets that belong to bikes only, that are closed to motor vehicles.  Similarly, other streets should be closed to bicycles so that drivers also have places to call there own where they can feel unobstructed by more vulnerable road users like cyclists.  Bicyclists need changes in the law too.  Illinois needs a stop as yield statute that allows people on bikes to yield at stop signs and lights rather than come unnecessarily to a full stop.  This is a year for new thinking about so much.  How we interact with each other on our streets should be on that list.

Could Barrier Protected Bike Lane Have Prevented Collision Between Motor Vehicles?

Courtesy, Jury Verdict Reporter, a
Division of Law Bulletin
Publishing Co.

Earlier this year I read about a verdict in a Cook County injury case that got me thinking about bike lanes.  Interestingly, the case did not involve a bicycle at all.

The case, Hernandez v. Valenzio, which our firm had nothing to do with, involved two drivers.  The injured driver, the plaintiff, was stopped in a 63 foot semi tractor trailer at a red light on 31st Street waiting to turn right at the intersection with Western Avenue in Chicago.  As he did, the defendant, pulled up next to him in her SUV in a bike lane immediately to his right.  According to the Cook County Jury Verdict Reporter, "When the light turned green, plaintiff looked both ways but was unable to see defendant's car because she had stopped in his blind spot.  He proceeded to make his right turn, at which time the truck's passenger side tugged against the driver's side of defendant's vehicle."  The truck driver then slammed on his brakes which caused him to be thrown forward, injuring himself.  He again looked in his side view mirror and saw the defendant driver talking on her cell phone.  At trial, the truck driver won his case receiving a substantial verdict.  This result came despite defendant's allegation that the truck driver was the one primarily at fault for failing to keep a "safe and proper lookout" for vehicles to his right.

A few things came to mind when I read this.  First, I was heartened by the jury's recognition that motor vehicles do not belong in bike lanes. I am guessing that they also did not like that the defendant was seen on her cell phone at the time of the crash.  These are very positive takeaways from a trial in which the plaintiff's attorneys, Trapp & Geller, clearly did a very good job of making sure the jury understood the rules of the road.  However, as I thought longer about the case I became concerned about the truck driver's conduct as well.  What if there had been a person on a bike in the bike lane rather than a SUV?  If he did not see a SUV, surely he would not have been a bicycle.  This could have lead to disastrous consequences.  There can be no doubt that the truck driver had a duty, as any motorist would, to look for bicycle traffic before executing a right turn across a bike lane.  Did the jury also wonder about such a hypothetical situation?  Would they have held the trucker responsible had he injured a cyclist?  It is impossible to know, of course.  However, it seems to me that there is something that could have prevented this incident, and my hypothetical situation, entirely:  A real protected bicycle lane.

On the date of the crash, July 14, 2009, the bike lane in which the defendant driver stopped consisted only of white lines on the roadway.  While white paint certainly creates legal separation, obviously it is no barrier to a driver unconcerned about the law or the safety of others.  Recently, the first concrete, curb protected bicycle lane was installed in Chicago, on Sacramento through Douglas Park.  Hopefully, more are on the way.  Bike lanes protected by concrete barriers would resolve a lot of the problems that crop up over and over again for cyclists who use bike lanes.  They would prevent taxi cabs for using bike lanes to load and unload passengers.  They would prevent drivers from using bike lanes as parking spaces.  They would prevent -- or at least strongly discourage -- reckless motorists from dangerously veering into lanes designated for bike traffic.  Had a barrier existed at 31st and Western back in 2009 it is unlikely that the defendant would have pulled to the right next to the semi tractor trailer.  A barrier of sufficient size may also prevent the type of collision that killed Chicago bicyclist Barbara Eno who was killed by a right turning truck driver in 2014.

Cyclist's POV Video Highlights The Horror Of Getting Doored

Below is a point of view video of a bicyclist getting doored by a taxi cab passenger from his right while riding in a bicycle lane in New York City.  The bike lane is located along the right side of a one way street.  The layout reminders me of Dearborn Avenue, north of Kinzie.  It is terrifying, though apparently the cyclist was not seriously injured.

There are a couple of interesting things about the video.  Let's assume for the moment that this incident occurred in Chicago instead of NYC.  The taxi cab driver did an awful lot wrong here.  By failing to pull to the curb to disembark his passengers he would have violated Rule 5.18 of the City of Chicago Public Chauffers Rules & Regulations which states, "Chauffeurs, when discharging passengers, shall do so in a safe and legal manner.  Chauffeurs shall discharge passengers curbside." He also would have violated several sections of Chicago’s staunchly pro-bicycle Municipal Code, including section 9-80-035 which requires drivers to look for other roadway users before permitting any door of their vehicle to be opened; section 9-40-160 which requires drivers to exercise due care to avoid colliding with any person operating a bicycle; and section 9-40-060 which prohibits any portion of a motor vehicle to encroach into a bicycle lane.  This sort of collision happens a lot in Chicago.  We have successfully represented many cyclists who have been doored by taxi cab passengers who disembarked into a bike lane.  We are always successful in holding the cab driver responsible.

Though the driver is culpable, that does not let the passenger(s) off the hook.  Taxi cab passengers owe cyclists, and other road users, a duty to look before opening a door.  Within the last two years or so some cab companies in Chicago have installed side view mirrors in front of the rear doors of their vehicles to facilitate passengers' ability to look for cyclists.  Many cabs also have window stickers warning passengers to look before exiting.  A claim may be brought against the passengers for causing harm in this circumstance.  A passenger's homeowners or renters insurance will generally provide coverage.

The bicyclist in this video did some things right and a few things wrong.  Firstly, he was correct for riding in the far right edge of the bike lane.  Usually, the danger from dooring comes from the curb side of the bike lane.  Riding along the outer edge of the lane keeps cyclists outside what is usually thought of as the door zone.  Secondly, he was wise to ride with a video camera.  What happened was well documented should there be a factual dispute later.  On the other hand, he seems to have been riding pretty fast; perhaps too fast for the congested conditions.  He admits on the video to traveling at about 25 mph.  He may have overestimated his speed, but there he is saying it on video.  Twenty-five miles per hour in city traffic is pretty damn fast.  Also, he is too cavalier about the possibility he was injured.  Hopefully, he was in fact okay.  But given his speed and the suddenness of the stop, he would have been wise to go to the hospital to get checked out.  Perhaps he ended up doing so.  He also suggests that he did not want a police report created, stating on video that he tries to never talk to the police.  This is foolish.  If he needs to bring a claim later for his injuries (if there were any), the taxi company's insurer will insist on seeing a police report to confirm that the crash actually took place.  My guess is that the cyclist may wish he could walk back some of the things he said after the crash.  In fairness, no one is at their best after getting into a crash.  But parts of his video highlight the importance of trying to stay cool following a collision.  The fact that he created and posted the video for all to see is much appreciated as it may serve as a device for educating drivers, passengers and cyclists about how to avoid such an incident and what to do afterwards.

How To Report Bike Lane Hazards To CDOT

When a bicyclist sustains injury due to a public roadway hazard he or she may seek compensation from the local governmental entity responsible for maintaining the road. There are, however, significant hurdles that must be overcome to do so successfully as I described in an earlier post. One of those hurdles is notice. An attorney representing an injured cyclist will need to prove that the city, town, village or other governmental entity responsible for the road knew or should have known about the hazard. During litigation the lawyer will make a request to the responsible entity seeking disclosure of any and all documents which may have put it on notice of the hazard, such as citizen complaints, and hope that if any exist they will be turned over. If the government responds that no such documents exist then the attorney must prove that the hazard was significant enough and existed for such a period of time that the government should have known about it, and taken steps to correct it. This is called "constructive notice". Having to prove constructive notice can be challenging. How long is so long that the government should be deemed to have been aware? Having documented proof that the government had actual notice of a particular road hazard yet failed to repair it is certainly much better.

Chicago bicyclists should report roadway hazards to the city, especially when the hazard, e.g. a pothole or sinkhole, is present in a bike lane. I recently inquired via email with the Chicago Department of Transportation (CDOT) as to how residents may report hazards in the city's bike lanes. There are two ways to do so, by calling Chicago's help line at 311 or online at www.servicerequest.cityofchicago.org. Here is the email thread:

Two questions:

1) To whom should I report hazards or dangerous conditions, i.e. sink holes, debris, etc., in bike lanes, paths and bike ways in the City of Chicago?

2) How should I make such a report?

Thanks.
--
Brendan Kevenides

--

Dear Mr. Kevenides ,

Thank you for your letter. We appreciate your dedication to bicycling and your enthusiasm for improved bicycling facilities in the City of Chicago.

One if the quickest and most effective ways to report pavement damage is to call 311 and input the information yourself directly into the system and onto the maintenance list. You can also do this online at https://servicerequest.cityofchicago.org.

Establishing and maintaining quality bikeways is consistent with Mayor Daley’s goals of creating safe road conditions for all users and encouraging bicycling in Chicago. Your input encourages our implementation of these goals.

Sincerely,

Joshua Koonce

Bikeways Planning Assistant

Chicago Department of Transportation

Chicago Bike Program

30 N. La Salle Street, Suite 500

Chicago, IL 60602

It would seem that the online reporting option creates a clear record of a complaint about a hazard. After submitting a report you will receive a message that states:

Service Request Entry Complete!

Thank you for reporting your city service needs. You will receive a confirmation e-mail with your service request tracking number and a link to the status query page once your service request has been added to the primary service request tracking system. . .

There is a "tracking system"! This is significant because it means that the injured cyclist's attorney can make a request to CDOT for any and all electronic "service requests" within the "primary service request tracking system" to obtain proof the city knew of a particular hazard. Perhaps CDOT creates written documentation of service requests that are made via telephone. But it is clear that there is typewritten documentation of such requests that are made online. Having typed complaints about a particular hazard that the city failed to respond to would be a tremendous help to the injured bicyclist and his or her attorney. When making an online service request please be as specific as possible. For example, if you are reporting a pothole in a bike lane, when the online form asks, "What size and shape is the pothole?" you should respond with something like, "Pothole is in the bike lane in front of ABC store, is quite large and presents a hazard to bicyclists." With this kind of description who could argue credibly that the city was not on notice of the hazard and the danger it posed to cyclists?

One thing was not made clear to me from my inquiry with CDOT: For how long service requests are kept in the "system". Does CDOT keep such requests for 30 days, 6 months, 7 years? One would hope that requests are kept until such time as the hazard is repaired or corrected, but who knows. In any big organization data, information, documents can just disappear by accident or not. In light of that reality I propose that if you submit an online service request to CDOT regarding a bicycling hazard that you send a copy of the confirmation email you will receive following your request to The Chicago Bicycle Advocate at bhk@kenneallylaw.com. In that way we will have a data source to look to when clients come to us with a case arising out of a roadway hazard. Working together we can make Chicago safer for bicyclists.