Unsafe Streets Are Inequitable: For Vulnerable Road Users, “Doing Everything Right” Isn’t Enough

On July 30, 2015, I was riding in the bike lane of Marshall Avenue, commuting home from work, when I was hit by a car driver turning left (midblock, into a parking lot). I am only just this month—May 2018—settling with the driver’s insurance company. Here are just some of things that have to go right for an incident like this not to ruin your life.

Yes, I Was Wearing A Helmet

The collision threw me off my bike and I landed on my head and the top of my left shoulder. Or so I believe, because I was apparently knocked unconscious, and I don’t have a memory of the instant of the collision (I remember the car that hit me coming from my left) or what followed shortly after. I regained consciousness in the road.

I’ll spare you the pictures of my injuries, and let the helmet picture suffice.

Did the helmet save my life or mitigate my injuries? Impossible to be certain, but this is probably one of those accidents where the helmet contributed to a positive outcome.

However, this is just “good luck.” There are plenty of automobile–bike impact scenarios where a helmet wouldn’t matter or would be overwhelmed. Scientific articles about cyclists’ body kinematics in a collision abound; here’s just one.

The upshot is that a helmet can only usefully redirect so much cranial blunt force. Because force = mass * acceleration, the speed, mass, and direction of what hits you substantially determines whether your helmet can make a difference. So helmet or no, cyclists don’t control the factors that matter in a collision with a negligent driver.

Even with the helmet, I suffered a concussion/traumatic brain injury; and the helmet made no difference to my shoulder, which also apparently absorbed a lot of collision force.

Still, I credit my helmet for working as designed and taking some of the blow. I’m lucky I remembered it on that particular trip.

The Driver Stopped, Was Given a Ticket, and (Eventually) Found Guilty

If the driver had left the scene there’s a good chance they’d never be held accountable. In this case, the road traffic and circumstances ensured there were many witnesses and the driver, even if she had been inclined, probably couldn’t have easily left. More good luck for me. She stayed, and was even apologetic.

The police were called and gave a ticket to the driver. Even if the police come and investigate, there’s no guarantee they’ll issue a ticket. That’s entirely at the whim of the officer. In my case, the officer wrote a report that clearly assigned fault only to the driver. I thanked the officer.

So this amounts to about three- or four-fold luck. Lucky to be hit in front of lots of witnesses, by a driver not inclined to flee, and then to have a police officer willing to follow through the investigation with an appropriate determination of fault and citation.

The driver’s initially apologetic nature didn’t extend to paying the ticket and pleading guilty to the citation, however. She fought the ticket, delayed her trial for a year, and ultimately her lawyer argued that I shared some of the fault. The clearly assigned fault in the police report and many witnesses did not deter this attempt to shift the blame onto the cyclist.

I’m Privileged (Part I)

I used vacation time to attend the trial and testify. I have the good fortune to work in a job that accommodates such a lark—if I wasn’t available to testify there’s a reasonable chance her ticket would have been dismissed. That would have made collecting from her insurance company more difficult.

I’m also uniquely lucky to be a white, male-passing lawyer and have some familiarity with the legal system. So I understood the significance of a guilty verdict to my insurance claim, felt comfortable testifying and being cross examined by her lawyer, and when I did so, my testimony probably faced little intrinsic bias and was regarded as credible.

Even so, I hired my own attorney. It probably goes without saying but being able to hire an attorney depends on luck or privilege. I got an attorney to take my case on contingency—the circumstances in my case made it likely the attorney would get paid for the effort. Otherwise you need to pay up front. And if you’re not intimately familiar with the process of overcoming the natural resistance of insurance companies to pay valid claims, an attorney is about the only way you can be sure to be treated fairly.

Car Insurance Actually Came Through

In Minnesota, if you’re struck by a vehicle, our no-fault insurance statutes (Minn. Stat. §65B.41–.71) may provide some protection. A cyclist could be covered for up to $20,000 in medical coverage and $20,000 in lost wages—if the cyclist or the driver had car insurance.

That’s a couple of big ifs and contingencies.

First priority for these claims goes to your car insurance. Yes, your car insurance pays no fault claims first if you’re a named insured, even if you were on a bike, because for these purposes it’s the person that’s insured.

But what if you’re car-free and saving tons of money by switching to no car insurance? Fortunately, if they were an insured Minnesota driver, you should still be able to get no fault coverage from the person who hit you. No promises how accommodating or easy to work with they’ll be—you’re not their customer!

What if the person who hit you was uninsured? Ten percent of Minnesota drivers don’t have insurance. Other state drivers’ rates of insurance can be even lower. If the person who hits you didn’t have insurance (maybe it just lapsed for a day!), and you don’t have insurance… someone else’s negligence could easily become your catastrophe.

It is for this reason alone that, even though I have been car free for a year and a half, I still pay for a non-owner auto insurance policy. I never want to lose the uninsured driver lottery. If I’m ever hit by an uninsured driver—and I can’t expect to be so lucky the second time—I will have some recourse. And even if the other driver is insured, I’d rather deal with a company of my choosing than an adversary who is taking the position that I’m at fault.

The extent of my injuries was also lucky—my medical expenses (clinic visits for concussion symptoms, diagnostics, and physical therapy to restore a full range of motion for my shoulder, etc.) was “just” $15,000. Less than the limits on my no-fault policy. Had I been any more seriously injured I could have quickly exceeded that limit, putting recovery in doubt while we did battle with the driver’s insurance company.

I’m Privileged (Part II)

My fortunate work situation helped in many ways, besides being able to take time off for the trial. I had enough sick time to abruptly take two full weeks to recover from my concussion, and additional time for physical therapy over the next several months, and I was able to do it without jeopardizing my employment or my career. That’s a rare privilege.

I also had: a job that isn’t physically demanding, an understanding and compassionate boss, another way to get to work, and the means to replace my bike. I couldn’t ride (among other physical activities) for several months, and even if I could, my bike was wrecked. Even the twisting necessary to check blind spots when driving was painful for a long time.

These wound up to be inconveniences in my life, but in another situation they could have meant more lost income, or even unemployment—with no hope for recompense for years. Most people in the US live paycheck to paycheck; waiting years for economic loss compensation is something that only works for the already rich.

TL;DR: Don’t Get Hit If You Aren’t Lucky And Privileged

Vulnerable road users are at significant risk even if they take every precaution in the world. Even a helmet AND insurance AND being completely, unambiguously without fault can’t protect you from other people’s negligence. The uncertainty and economic consequences of this crash dragged on for years (my shoulder will never fully recover)—and most victims will be less lucky and privileged than me. Even if you “do everything right” our adversarial system basically ensures someone will try to tag some blame on you, and keep you from being made whole. Fighting that takes resources (time, money) and good fortune.

This is why we need to keep building safer streets that keep speeds slow to minimize the harm of driver errors, and that physically protect vulnerable road users (i.e., separate bike and car traffic with more than paint). Under the status quo, outcomes depend too much on luck and privilege.