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Legally Speaking – with Bob Mionske

  • By VeloNews.com
  • Published Apr. 24, 2003

Close encounters of the drafting kind

By Bob Mionske

Hey Bob,
Can I get in any legal trouble, or am I breaking any laws, by motor-pacingmy friend behind my Subaru? –
Pat
Hillsboro, Oregon

Dear Pat;
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 Iwas 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 wasspun out going downhill with my head down, when the woman I was draftinghit 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 herbumper, I flew upside down between the lanes for a long time before I landedon 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 toconvincing the officer with my lame explanation about how I was lawfullyriding 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 betweenhim 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 equallydisastrous. The fellow I had enlisted to pace me, simply followed behindme. I kept waving for him to pass me and he took my waiving as a commandto get even closer to my rear wheel and rev his engine louder. I finallystopped and asked him what he was doing. It turned out that his idea ofmotor pacing was different from mine. I decided to do an easy ride by myselfand 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 thelawyers won’t let us?” Well, in this instance, there is a lot a truth tothat old saw. Not only can both you and your friend get into trouble, youwill amazed at all the different ways you can get into hot water.

Your home state, Oregon, is a good example, because its traffic lawsare fairly standard and therefore, my answer should apply to most states.

Let’s start with the obvious. The Oregon Traffic Code makes bicyclistsriding 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 reasonableand 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 drivinga Class A misdemeanor. Note that this is no longer just a trafficoffense, it’s a misdemeanor. That means, although highly unlikely, onecould face up to a year in jail for this one. By “reckless” the statutemeans:
 

“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 becauseboth 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’sa Class B traffic offense, unless he crashes, in which case you could bothpull a Class A traffic offense. That’s a suspended license and $600. (Whetheryou can get your driver’s license suspended for violating a traffic lawwhile riding your bike is a fascinating question that we’ll save for anotherday.)

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 mannerthat results in contact between the person’s vehicle and a bicycle operatedby a person or a person operating a bicycle.”
Because “recklessly” is defined the same way as in reckless driving, ifthe 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 possibleyear in jail, even though you never intended to harm him.

Of course, this is all worse case scenario stuff and in all the yearsmy teammates and I motor paced, I don’t remember any problems with thepolice (if readers have been pulled over and ticketed or want to sharetheir motor pacing experiences with the law, please e-mail me).

 If you are stopped by a police officer for motor pacing, I recommendcalmly discussing the competitive reasons for motor pacing and your vastexperience in doing so, all the time using a voice of contrition. Theofficer may let you continue with a caveat “to be careful” or command youto cease pacing altogether, both of which are better than being ticketed.

A related subject involves insurance coverage for injuries sustainedwhile motor pacing. Most automobile insurance policies exclude coverageif the car is used in a “race or other contest of speed.” I have foundno published cases in which a bicyclist motor pacing a car crashed, butin a 1966 Alabama case, Alabama Farm Bureau Insurance v. Goodman, two friends,one on a bicyclist 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,” intheir contest, the judge determined that they were involved in a “competitivespeed test,” and that the motorist’s insurance carrier did not have topay the bicyclist’s claim.
 
Let’s assume that your friend, rather than looking to your automobileinsurance carrier, tries to get his medical insurance or homeowner’s insurancepolicy to pay. In the 1992 Minnesota case of State Farm Insurance v.Seefeld, the court concluded that where an accident results from acombined motor vehicle and non-motor vehicle incident, a homeowners orindividual medical insurance carrier can be forced to cover the expensesof their customer. However, most homeowners and medical insurance carrierscontain what is called an “extraordinary risk” exception. If the customerengages in an unusual activity that is extraordinarily dangerous and getshurt, the insurance company is off the hook. While typical bicycle ridinghas frequently been held to NOT be an “extraordinarily dangerousactivity,” 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 usingthis form of training, as it is dangerous and clearly illegal. If you aregoing to motor pace, I suggest using a motorcycle, as it is easier to avoidcollisions, it simulates race conditions better than an auto and is lesslikely that you will get pulled over by the police. If you are going tomotor pace behind an automobile only use someone who has hours of experiencedriving 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 paceon lightly traveled roads. Before drafting behind either a motorcycle orautomobile make sure you and the driver have gone over all commands andcontingencies including how to handle sudden stops, intersections, potholes,police, variations of speed etcetera.

And, above all, let’s be careful out there.
Good luck-Bob

(research [and drafting assistance] provided by Bruce Epperson- lawstudent at Nova Southeast University) 



Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road Race.After retiring from racing in 1993 he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property etc).If you have a cycling related legal question please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle accident advice can be found at www.bicyclelaw.com.Important Notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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