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Legally Speaking – with Bob Mionske: The Perfect Stone

  • By VeloNews.com
  • Published Oct. 6, 2005

By Bob Mionske

Hi Bob,
Occasionally while riding on the road, a rock will go sailing fromthe sidewall of my tires to a car driving next to me.  I cringe everytime this happens, and I’m waiting for the day a motorist decides to dosomething about the new dent in their car.  If this did become a legalmatter, would I be responsible for the rock hitting their car?
T.D.
Santa Barbara, CaliforniaT.D.,
You have heard of the “Perfect Storm,” but what about the “PerfectStone?”  One day I was on a training ride, minding my own business,when I hear someone yelling and I turn to my left and see a man drivinga car along side me with the passenger window lowered.  This mad manwas screaming quite emphatically that I should get off the road or somesuch nonsense.  I was just about to invite this guy to discuss thematter further over a lunch of knuckle sandwiches (my treat) when I hearthe very loud smack of a rock hitting the side of his car.  He stops mid-spew and just stares at me, mouth agape, with a bewilderedlook.  It was a beautiful moment and nothing more was said by eitherof us.  As I rode off I pondered the same question submitted aboveby  T.D., so here goes:To determine if a cyclist is legally liable to a motorist for damagescaused by a projectile launched from a front tire we need to discuss basicnegligence law (which is the same law that allows a cyclists to be compensatedwhen hit by a motor vehicle).  Negligence can be defined as an act,or failure to act, which falls below the standard of duty of care establishedby law for the protection of others against unreasonable risk of harm.In order to prove up a negligence claim the plaintiff must prove upat least 4 elements- Duty, Breach of duty, Causation and Damages. But whatdoes this mean in plain English?The term Duty refers to the legal requirement that a person adhereto a standard of conduct in protecting others from unreasonable risk ofharm.  For example, landlords have a duty to keep residence habitablefor tenants, store owners have a duty to keep the store aisles safe andpassable, parents have a duty to care for their children, motorists havea duty to yield the right of way to cyclists, etc.The next element one must establish in a negligence case is “Breachof Duty.”  So, once the duty has been identified, an act or failureto act can be shown to have breached that duty.  To detemine if thereis a breach of duty we ask  “would a reasonable person in a similarsituation have done the same thing as the person being sued?”  Examples include a landlord not providing locking doors, a store ownerleaving grease on the floor, a parent leaving a child unattended, a motoristopening his door just as a cyclist passes, etc.Causation, the third and critical element of a lawsuit in negligencecan be determined by looking at actual causation and proximate causation. .  To determine actual causation  we ask the question of “whetherthe person being sued was the actual cause of the damage sustained by theperson initiating the lawsuit.  Proximate causation looks at the issueof forseeability.  So when we consider the event as it happened weask “whether the damages were foreseeable or whether they are too remotelyconnected to the incident to consider.The last element to a basic negligence claim is Damage. A plaintiff must have suffered damage-either physical (personal injury)or economic (financial) or both.Now lets turn to our fact pattern.  A cyclist is riding along obeyingthe law and a stone is kicked up from his front wheel and hits and damagesa car.  First we need to determine if the cyclist owes any duty towardsthe other vehicles on the road and, of course, he does.  He has aduty to adhere to the rules of the road while traveling in traffic. This duty extends to other cyclist, pedestrians and motor vehicles.Next we need to determine whether our cyclist breached that duty. It seems the cyclist did nothing to breach a duty to anyone as he was proceedingin a lawful manner just as any “reasonable person” in his (bike) shoeswould.Now we turn to causation.  Did the cyclist “cause” the motorist’sdamages (dented vehicle)?  Unless the cyclist actually sees the rockfly from his front tire and is willing to admit this (this requirementalone makes the case nearly impossible for the motorist to win this case),the motorist will have a difficult time with causation.  This is becauseeven if the cyclist was willing to admit that the rock flew from his fronttire into the vehicle- we need also to ask if this was foreseeable. In other words, should the cyclist have anticipated that his front tirewould encounter a rock of the perfect size and dimension as to enable itto be sent as a flying projectile in a way that could cause damage to another? I would argue that it is not foreseeable that the cyclist would encounterthe “perfect stone” in the roadway (maybe a construction truck droppedit or another vehicle’s wheel threw it onto the roadway) and also thatit was not foreseeable that his front tire would hurtle the rock ala TiddleyWink into a vehicle thereby damaging it.The last element a plaintiff would have to show is Damage.  Whilethe driver can show that his vehicle sustained a dent and as a consequencehe was  “economically” damaged, we would never get to this rubricif we it was determined that the cyclist did not breach any duties andthat the causation was not foreseeable.Good luck
Bob


Now read the fine print:

Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad 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 mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-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 publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.

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