Legally Speaking- Close Ecounters of the Drafting Kind
Legally Speaking – with Bob Mionske
Published Apr. 24, 2003
Close encounters of the drafting kind
By Bob Mionske
Can I get in any legal trouble, or am I breaking any laws, by motor-pacing my friend behind my Subaru? –
As you will read, I do not recommend that you motor pace your friend, but if you do, I offer the legal ramifications as well as some basic advice.This is the classic “do as I say, not as I do” lecture. In fact, when I was racing and training, I was not even smart enough to limit my motorpacing to willing and complicit drivers.
I was riding a borrowed cyclo-cross bike with limited gearing and was spun out going downhill with my head down, when the woman I was drafting hit her brakes for no reason (or maybe she did have a reason!). We had made eye contact through her rear view mirror and I remember thinkingthat she had a strange resemblance to the woman in the movie “Misery.”
Anyway, this was a two lane one-way street and after I ran into her bumper, I flew upside down between the lanes for a long time before I landed on my back still strapped in. The driver didn’t stop and, for a while, neither did the other traffic, which continued to pass me on both sides. An ambulance was called, as well as the police, and I was on my way to convincing the officer with my lame explanation about how I was lawfully riding in traffic and “changing lanes” when this driver “unexpectedly braked,” when an off-duty police officer I had passed earlier presented his version (apparently, he was traveling too slowly for me and I had passed between him and other vehicles before settling in behind the Kathy Bates look-alike). I was ticketed for following too closely.
One of the only times I organized a motor pace session was almost equally disastrous. The fellow I had enlisted to pace me simply followed behind me. I kept waving for him to pass me and he took my waving as a command to get even closer to my rear wheel and rev his engine louder. I finally stopped and asked him what he was doing. It turned out that his idea of motor pacing was different from mine. I decided to do an easy ride by myself and laughed out loud every few miles ruminating upon the thoughts of this “motor-pace session”.
Now to the answer. You know how everyone says, “we’d do it, but the lawyers won’t let us?” Well, in this instance, there is a lot a truth to that old saw. Not only can both you and your friend get into trouble, you will amazed at all the different ways you can get into hot water.
Your home state, Oregon, is a good example, because its traffic laws are fairly standard and therefore, my answer should apply to most states.
Let’s start with the obvious. The Oregon Traffic Code makes bicyclists riding upon a public way subject to the provisions of the traffic code,and extends to them the rights and duties of motor vehicle operators. Section 811.485 makes it a Class B traffic offense to
“follow another vehicle more closely than is reasonable and prudent.”
So right off the bat, we can ticket your friend for following too closely.
Next, section 811.140 of the traffic code makes reckless driving a Class A misdemeanor. Note that this is no longer just a traffic offense, it’s a misdemeanor. That means, although highly unlikely, one could face up to a year in jail for this one. By “reckless” the statute means:
“A person is aware of and consciously disregards a substantialand unjustifiable risk that the result will occur or that the circumstanceexists. The risk must be of such nature and degree that disregard thereofconstitutes a gross deviation from the standard of care that a reasonableperson would observe in a situation.”
This might be particularly attractive to a law enforcement officer because both you and your friend could get busted for the same act. Of course, you could get lucky and merely draw a ticket for careless driving. That’s a Class B traffic offense, unless he crashes, in which case you could both pull a Class A traffic offense. That’s a suspended license and $600. (Whether you can get your driver’s license suspended for violating a traffic law while riding your bike is a fascinating question that we’ll save for another day.)
If your friend crashed and the officer just wanted to ruin your day,he could cite you for vehicular assault of a bicyclist. Sound like a stretch? Section 811.060(2)(a) includes within the definition of that offense:
“A person [who] recklessly operates a vehicle in a manner that results in contact between the person’s vehicle and a bicycle operated by a person or a person operating a bicycle.”
Because “recklessly” is defined the same way as in reckless driving, if the cyclist you are motorpacing bumps into the back of your car and crashes, you could be cited for a Class A misdemeanor and, again, face a possible year in jail, even though you never intended to harm him.
Of course, this is all worst case scenario stuff and in all the years my teammates and I motor paced, I don’t remember any problems with the police (if readers have been pulled over and ticketed or want to share their motor pacing experiences with the law, please e-mail me).
If you are stopped by a police officer for motor pacing, I recommend calmly discussing the competitive reasons for motor pacing and your vast experience in doing so, all the time using a voice of contrition. The officer may let you continue with a caveat “to be careful” or command you to cease pacing altogether, both of which are better than being ticketed.
A related subject involves insurance coverage for injuries sustained while motor pacing. Most automobile insurance policies exclude coverage if the car is used in a “race or other contest of speed.” I have found no published cases in which a bicyclist motor pacing a car crashed, but in a 1966 Alabama case, Alabama Farm Bureau Insurance v. Goodman, two friends, one on a bicycle and the other in a car, raced each other down the block. The bicyclist was drafting the car when they collided, injuring the cyclist. Because the “speed of their respective vehicles was of the essence,” in their contest, the judge determined that they were involved in a “competitive speed test,” and that the motorist’s insurance carrier did not have to pay the bicyclist’s claim.
Let’s assume that your friend, rather than looking to your automobile insurance carrier, tries to get his medical insurance or homeowner’s insurance policy to pay. In the 1992 Minnesota case of State Farm Insurance v.Seefeld, the court concluded that where an accident results from a combined motor vehicle and non-motor vehicle incident, a homeowners or individual medical insurance carrier can be forced to cover the expenses of their customer. However, most homeowners and medical insurance carriers contain what is called an “extraordinary risk” exception. If the customer engages in an unusual activity that is extraordinarily dangerous and gets hurt, the insurance company is off the hook. While typical bicycle riding has frequently been held to NOT be an “extraordinarily dangerous activity,” motorpacing a foot behind a car at 30 mph is going to be problematic.
While my personal experience and belief lead me to conclude that motorpacing has proven value for serious cyclists, I do not recommend using this form of training, as it is dangerous and clearly illegal. If you are going to motor pace, I suggest using a motorcycle, as it is easier to avoid collisions, it simulates race conditions better than an auto and is less likely that you will get pulled over by the police. If you are going to motor pace behind an automobile only use someone who has hours of experience driving with a cyclist on his/her bumper, make sure you can see throughthe windows of the vehicle (don’t look at the bumper) and only motor pace on lightly traveled roads. Before drafting behind either a motorcycle or automobile make sure you and the driver have gone over all commands and contingencies including how to handle sudden stops, intersections, potholes, police, variations of speed, et cetera.
And, above all, let’s be careful out there.
(Research and drafting assistance provided by Bruce Epperson- law student at Nova Southeast University)
This aricle, Close Encounters of the Drafting Kind, was originally published on VeloNews on April 24, 2003.
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