Legally Speaking – A Question Of Liability

We have a little ride in Iowa called RAGBRAI (Register’s Annual Great Bike Ride Across Iowa). A few years ago a cyclist hit a centerline crack and died. The widow sued the county, and a settlement out of court resulted in $300k to the widow.

There were two accidents that morning at the same location. A deputy was dispatched to the scene to warn riders, and put up cones. After some time at the scene, the deputy left and took the cones. Very soon after he did that, the tragic accident occurred. Basically the negligence of the officer in leaving the scene of a known hazard resulted in the cyclist’s death. Now counties in Iowa are over-reacting with a proposed ordinance from the Iowa State Association of Counties. What are your thoughts on the ordinance?

Thanks,

J. M.

Des Moines, Iowa

Dear J.M.,

I’ve been keeping one eye on the situation in Iowa since it first became an issue with the counties. This is an issue that will only get worse if we don’t nip it in the bud now. The proposed laws in Iowa undermine the basic right to the road that we cyclists have enjoyed since 1887. This diminution of our rights has already been enshrined into law in Illinois; it is imperative that cyclists work to prevent the further erosion of our basic rights to the road in other states, beginning in Iowa. If these anti-cycling laws are allowed to pass, it will only further embolden those who seek to curtail our rights.

But first, before I elaborate on my view that these laws must be stopped, I’d like to say a few words about that “little ride” you’re referring to, on the remote chance that there might be a Legally Speaking reader who is unfamiliar with RAGBRAI. The ride began in 1973 when two reporters from the Des Moines Register convinced their paper to let them ride across Iowa and write about the ride (it’s a tough job, but somebody has to do it). That first year, 114 cyclists rode from the starting point in Sioux City to the finish line in Davenport. By tradition, riders begin by dipping their rear wheel in the Missouri River on Iowa’s western border, and end by dipping their front wheel in the Mississippi River on Iowa’s eastern border.

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Since that first ride, RAGBRAI has become an annual event, growing in popularity with each year. Typically, the ride is limited to 8,500 registered riders for the week-long event, held the last week of July, and for which, although it follows a different route each year, the goal is always the same: Ride across Iowa, from the Missouri to the Mississippi, in seven days. In addition to those 8,500 riders registered for the entire ride, another 1,500 riders register for one of the one-day legs of the ride. Another ten thousand participants ride unregistered each year. The big attraction, though, is the teams, many of which have become well-known in their own right for their own unique take on what has become a rolling cross-state summer cycling festival.

So how do the towns along the route react to the thousands of cyclists rolling through? With open arms, and open cash registers. Host towns report as much as a $2 million economic boost to the local economy as a result of RAGBRAI, with most of those dollars from out of town—and in fact, with many of them from out of state. Any time a local economy can receive a one-day $2 million boost from out of town visitors, you can bet that town will be rolling out the welcome mat and greeting the visitors with open arms, a brass band, and a smile.

And yet, there’s that lawsuit. In 2004, rider Kirk Ulrich was thrown from his bike and killed when he hit a crack in the road. His widow sued Crawford County, arguing that the County was negligent because it had notice that other cyclists had been injured when they had hit that crack in the road, it had had an opportunity to respond to the hazardous condition, and in fact did respond, by warning other cyclists of the hazardous condition, and then had ceased warning other cyclists of the hazard, just prior to Ulrich’s fatal fall. The case was settled out of court for $350,000. Crawford County Supervisors were outraged by the lawsuit, and subsequently banned RAGBRAI from using Crawford County roads for the event. Now here’s the thing: Crawford County was insured, and actually only paid its $5,000 deductible out of pocket; the balance of the settlement was paid by Crawford County’s insurance carrier. Nevertheless, despite the enormous disparity between the economic benefits that RAGBRAI brings to towns along its route, and the $5,000 deductible on the out of court settlement, Crawford County Supervisors vowed to cut off the County’s nose to spite the County’s face. With Chairman of the Board of Supervisors Dan Muhlbauer noting that “our roads are not made for bicycles,” the Supervisors approved a resolution to that effect, stating that the county’s roads are not designed to meet the specific standards related to bicycle travel and constitute an unacceptable risk to participants in RAGBRAI and other similar events. And with that, the welcome mat was rolled up and RAGBRAI was ordered to henceforth stay out of Crawford.

And that set off a stampede of panic among some Supervisors in other Counties (to their credit, cooler heads prevailed among many of Iowa’s County Supervisors); the Iowa State Association of Counties was urged to lobby for the introduction of legislation addressing the liability of counties for injuries suffered by bicyclists due to road defects on county roads. Writing in the Association’s December 2007 newsletter, David Vestal, the General Counsel (that’s legalese for “top lawyer”) for the Association, advised the counties that the problem is that under Iowa law, cyclists have the same rights applicable to the operators of motor vehicles. And that, he observed, leads to uncertainty for counties in the event of an accident: if a cyclist has the same rights as drivers, does that mean the cyclist can sue the county for negligence resulting from road defects, as a driver would be able to, even if the defect is only a 1-inch crack in the road? “We don’t know,” he concluded (Brad Lint, executive director of the Iowa Trial Lawyers Association, counters that current law already provides immunity for counties against lawsuits related to the design or construction of a roadway).

The solution, Vestal advised, should be “a three-legged stool.” First, he argued that the Des Moines Register needs to tighten up its liability waiver. Second, he continued, the Register needs to purchase liability insurance that covers the counties along the route as named insureds. So far, nothing that reasonable people would disagree with. But then he dropped the boom—third, he argued, the state needs to pass legislation addressing the risks of cycling:

Bike riders need to assume the risk of injuries on county roads. Counties need clarification in the law that they are not required to upgrade their roads to make them safe for bikes. One way to do that would be to pass a law that clearly states that biking has inherent risks, and that if you are injured in a garden variety accident while biking on a secondary road, you cannot sue the county. As a biker, you assume that risk.

He likened this proposed legislation to a statute in Connecticut that exempts ski resorts from liability for injuries suffered by skiers. Note that he was comparing apples and oranges: the model statute exempts the private operator of a sport facility from liability arising from injuries inherent to the sport, while the proposed legislation exempts local government from liability for failing to maintain the roads in a condition safe for travel by vehicles that are legally entitled to use the roads. While it’s true that cycling also often takes place within a sporting context, cycling isn’t strictly a sporting activity. Many cyclists ride for transportation. Many cyclists ride for heath—their own and the planet’s. Many cyclists ride for recreation. Regardless of the nature of the cyclist’s ride, Vestal made clear his intent: “This is not just about RAGBRAI. It is about bikes in general.” Or, to put it more bluntly, it’s not just about athletes assuming the risks inherent to their sport, it’s about creating a legal double standard in the state of Iowa that says “if you travel by bike in Iowa, you will be a second-class citizen, surrendering the legal rights you would have if you traveled by car.”

In fact, the proposed legislation was less akin to the Connecticut statute, and more akin to the Illinois statute at issue in Boub v. Township of Wayne, the infamous case in which the Illinois Supreme Court held that cyclists are permitted, rather than intended, users of the roads, unless a local government has indicated through signs or other markers that cyclists are intended users of the road, and further elaborated that the statute guaranteeing cyclists all of the rights applicable to other vehicle operators merely means that cyclists must obey the traffic laws. To say that this ruling was a stunning setback for the rights of cyclists is an understatement, and until the Illinois Legislature says otherwise, cyclists are second-class citizens in the state of Illinois.

The Iowa Legislature was less receptive than the Illinois Supreme Court to the proposition that cyclists are second-class citizens; despite the lobbying efforts of Iowa’s counties to shift the responsibility for injuries from the counties to the injured, the proposed legislation never took off in the Iowa legislature. Responding to the legislature’s lack of interest in making second-class citizens of Iowa’s cyclists, Vestal returned to the issue again in June of 2008, when he urged the counties “to adopt an ordinance requiring that organizers of a bike ride obtain liability insurance and have the county listed as a named insured on the policy.”

Despite not actually being along this year’s RAGBRAI route, Dallas County nevertheless was the first to respond to Vestal’s call. The proposed ordinance was placed on the Supervisor’s agenda for June 29, 2008, and began with a finding that “County roads are not designed for bicycles.” Think about that for a moment. Suppose that the ordinance instead said “County roads are designed for bicycles, and not for cars.” Would that language tend to affirm the legal principle that drivers enjoy equal rights under the law? Or would it work to diminish the legal status of drivers?

Taking its cue from Vestal, the proposed ordinance also found that “According to the National Highway Traffic Administration, bicycling results in more emergency room admissions than any other sport or activity.” Oh. Really? Bicycling results in more emergency room admissions than an activity such as, say, driving? That’s an interesting analysis. A utterly specious analysis, but nonetheless interesting. OK, so maybe the NHTA was stretching the truth a bit—OK, a lot—by claiming that bicycling is such a dangerous activity, but what about that danger as a sport? Again, an interesting analysis, if you consider that all cycling injuries—including injuries that are not sports related—are included in the “sports injuries” data. Right-hooked by a driver while going to the market for a loaf of bread? That’s the same as going down when another rider in the peloton collides with you, according to the statistical analysis. I wonder if their comparative analysis included auto accidents suffered by athletes in other sports?

Having made these findings, the ordinance proposed that “No person shall organize, operate, or participate in, any bicycle event in the County unless the event has liability insurance coverage as provided in this ordinance.” Under the proposed ordinance, a “bicycle event” meant any “organized procession or assemblage” involving 20 or more riders. That included RAGBRAI, of course, but RAGBRAI isn’t the law’s target, because the law sets the bar low—20 or more riders. And even if RAGBRAI were the intended target of the law, RAGBRAI has the resources to comply with the law. But the intended targets of the law don’t have the resources. That Saturday club ride? Better take out a million-dollar insurance policy, or you’re in violation of the law. Can’t afford the insurance? Better not ride then. A charity ride? Not without insurance you don’t. As David Vestal made perfectly clear, this isn’t just about RAGBRAI—it’s about bikes in general.

Well, Iowa cyclists are not a soft bunch—Iowans in general would have to be a hardy breed, to survive the massive floods they’ve just experienced—and Iowa’s cyclists are no exception, having come out on the other end ready to ride from the Missouri to the Mississippi. So when cycling was under attack, Iowa cyclists swung into action. They organized. They wrote and talked to anyone who would listen. They rode from the State Capital in protest. And miraculously, their voices were heard. The Dallas County Supervisors voted to delay adoption of the ordinance until they could more fully consider the issues involved. That’s not a complete victory, but it’s a start. Now Iowa’s cyclists really need to roll up their sleeves, and convince Dallas County, and by example, the other counties, that anti-cycling ordinances are not the solution to the problem. In the meantime, let’s all extend our congratulations to Iowa’s cyclists, who, between the floods and RAGBRAI, nevertheless managed to convince Dallas County Supervisors that cyclists have rights worth thinking about.

Good luck,

Bob

(Research and drafting provided by Rick Bernardi, J.D.)

This article,  A question of Liability, originally published Jul. 10, 2008 on VeloNews

I’d like to extend my thanks to everybody who has contacted me to request my appearance at their event. My next speaking appearance will be:

I will be speaking as extensively on “Bicycling & the Law” this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com.

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