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.