THE TIPPING POINT - WHEN ROAD RAGE GOES TOO FAR
By: Richard L. Duquette, Esq.

A local bike shop owner recently summed up motorist bias the other day.  Here’s what he said:

Motorists take out their frustrations on bicyclists.
Motorists often want to teach bicyclists a lesson.
Motorists sometimes act as if they are the authority, and they will bully due to their size difference (i.e. but they won’t “push” a cement truck).

 As bicyclists, we’ve all experienced bullying at one time or another, but sometimes it escalates into road rage and bicyclists are maimed or killed.
 
Let me share a recent case example and what we did about it.  It was an early Saturday morning – the two way road was 40 feet wide.  Four bicyclists were riding in a pace line – two in front, followed by two in back.  All were near the right hand side of the road.  Then a Cadillac Escalade - SUV started tail gating, honking and gave the “finger”, as he sped passed the bicyclists.  The bicyclists quickly tried to react to form a single pace line – but it was too late. The Escalade driver recklessly swerved around the bicyclists over solid double yellow lines (into the oncoming lane and back) then, rear ended the lead bicyclist - who flew off his bike.  The bike was then sucked under the Escalade and mangled.  The bicyclist suffered a broken collar bone and road rash.
 
Two “legal” issues arose:
 
First, was the bicyclist as far to the right as possible per law (California Vehicle Code §21202(a)) or blocking traffic?  I argued, because he was riding 24 mph – and the road was empty, he was not impeding traffic, since the speed limit was 25 mph.  Thus, the bicyclist had the same right to the road as a car.  We even had a bike computer speedometer that captured the bicyclist’s speed at 24.7 mph.  The insurance company attorney argued the bicyclist was a road hog and stubbornly refused to move.  Luckily, we also had three other eye witnesses that supported us.  (Ordinarily, bicyclists should ride close to the curb or in a posted bike lane.)
 
Secondly, was the Escalade drivers’ behavior willful and wanton?  In other words, did he display a reckless disregard for the bicyclist’s safety?  The fact it was a rear end collision on a wide road, preceded by honking and fingering the “bird”, helped prove the motorist should be punished with punitive damages due to his road rage.  Punitive damages make an example out of bad behavior and are not covered by insurance, nor dischargeable in bankruptcy.  So, the road rage bully has to dig into his own pocket and pay.
 
At the pretrial settlement conference, I presented the insurance company’s attorney with my extensive legal brief, piecing together the deposition testimony of the eye witnesses and gave her a courtesy copy of a legal motion (brief) I intended to file with the court, forcing the menacing Escalade motorist to lawfully disclose the entire details of his financial condition and assets.  We were poised to submit this asset information to the jury in order to have them assess a fair punitive damage award on top of his out of pocket, pain and suffering damages.
 
Moreover, we were careful to distinguish between the driver acting intentionally as opposed to maliciously.  If the driver intended to injure the bicyclist, this would open the door for the driver’s insurance company to deny insurance coverage, as it was an intentional act precluded by his policy.
 
That was all it took.  The insurance company folded and the motorist settled for a handsome amount.  I was most proud of the fact that the gruff Escalade driver was forced (as a part of the settlement in open court) to apologize face to face with the bicyclist.  This was a healing gesture for everyone, and is often as important as a money award.
 
 Mr. Duquette is a local Carlsbad, California Personal Injury Trial Attorney who since 1983 has mixed law with his love of Bicycling and Surfing from Baja to Bali.  He can be reached via e-mail at here.